People v. Fett

• Citation: 257 Mich. App. 76,666 N.W.2d 676
• Decision Date: 10 June 2003
• Docket Number: Docket No. 238781.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kathie Michele FETT, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

666 N.W.2d 676

257 Mich. App. 76

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kathie Michele FETT, Defendant-Appellant.

Docket No. 238781.

Court of Appeals of Michigan.

Submitted May 7, 2003, at Detroit.

Decided June 10, 2003, at 9:20 a.m.

Released for Publication July 23, 2003.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan J. Smith) for the defendant on appeal.

Before: MARKEY, P.J., and MARK J. CAVANAGH and HOEKSTRA, JJ.

MARKEY, P.J.

Defendant appeals by right her conviction after a jury trial on a charge of operating a vehicle while visibly impaired by intoxicating liquor (OWI), M.C.L. § 257.625(3), third offense, M.C.L. § 257.625(10)(c). Defendant argues that her Sixth Amendment right to counsel was violated when the trial court denied her pretrial motion to admit pro hac vice¹ Ohio attorney Mark Gardner as her counsel of choice. We agree.

On November 10, 2000, defendant was arrested for operating a vehicle under the influence of intoxicating liquor (OUIL). The arresting officer administered two Data-Master breath tests at the police station; the results of both tests indicated a blood alcohol level of 0.11 grams per 210 liters of breath. Defendant was charged with OUIL or operating a vehicle with an unlawful alcohol level (UBAL), M.C.L. § 257.625(1). Also, because defendant had two prior alcohol-related convictions within ten years, M.C.L. § 257.625(23), the prosecutor notified defendant that if convicted of either OUIL/UBAL or the lesser included offense of OWI, she would be sentenced for a felony, M.C.L. § 257.625(8), (10). Walled Lake attorney Daniel Ambrose represented defendant in the district court. After a preliminary examination, the case was bound over to the Oakland Circuit Court for trial before Judge Richard D. Kuhn.

In circuit court, Ambrose filed a motion on behalf of defendant seeking the admission pro hac vice of Gardner as cocounsel. Defendant's motion averred that Gardner was a duly licensed practicing attorney who had been a member of the Ohio Bar since May 17, 1993. Further, the motion alleged that Garner was not under any disciplinary orders, would submit to the discipline of the court, and was associated with defendant's counsel of record, Ambrose. On May 9, 2001, the trial court denied defendant's motion, stating, "It is a simple OUIL case." Ambrose moved for reconsideration on May 23, 2001, asserting that Gardner was, in fact, defendant's counsel of choice to represent her at trial. At a June 13, 2001, hearing on defendant's motion for reconsideration and motion for a stay of proceedings while she sought leave to appeal to this Court, the trial court ruled as follows:

Let me say it this way, it is a discretionary motion. The Court is going to deny the motion. It is a simple OUIL case, and I am sure Counsel [Ambrose] has tried many cases on OUIL and, therefore, this case will go when scheduled and I will not issue a Stay.

Ambrose represented defendant at her four-day jury trial, which concluded on October 25, 2001, with her conviction of the lesser included offense of operating a vehicle while visibly impaired by intoxicating liquor, M.C.L. § 257.625(3). Defendant was sentenced on November 27, 2001, as a third offender, M.C.L. § 257.625(10)(c), to two years' probation, 183 days in jail, and various fines and costs. She now appeals by right.

Michigan's Constitution guarantees that in "every criminal prosecution, the accused shall have the right ... to have the assistance of counsel for his or her defense...." Const. 1963, art. 1, § 20. The Sixth Amendment of the United States Constitution directly guarantees that in "all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence," and is applied to the states through the Fourteenth Amendment right to due process. People v. Marsack, 231 Mich.App. 364, 372-373, 586 N.W.2d 234 (1998). Because "the language of the federal constitution and that of the Michigan Constitution are nearly identical," People v. Reichenbach, 459 Mich. 109, 118, 587 N.W.2d 1 (1998), a "`compelling reason'" must exist to justify finding that the Michigan Constitution affords greater protection than its federal counterpart, id. (citation omitted). Thus, a defendant's right to counsel under Const. 1963, art. 1, § 20 is generally the same as that guaranteed by the Sixth Amendment. Reichenbach, supra at 119-120, 587 N.W.2d 1; Marsack, supra at 373, 586 N.W.2d 234.

Whether a defendant's constitutional right to counsel includes the right to retain out-of-state counsel to defend against a criminal charge in Michigan is a question of law that we review de novo. People v. Sierb, 456 Mich. 519, 522, 581 N.W.2d 219 (1998). In this case of first impression in Michigan, we hold that a trial court may not arbitrarily and unreasonably refuse to grant admission pro hac vice of an otherwise qualified out-of-jurisdiction attorney. To do so violates the defendant's right to counsel guaranteed by both the Sixth Amendment and Michigan's Constitution. Const. 1963, art. 1, §§ 13, 20; People v. Arquette, 202 Mich.App. 227, 231, 507 N.W.2d 824 (1993); Wilson v. Mintzes, 761 F.2d 275, 278-280 (C.A.6, 1985). Further, we hold that the arbitrary and unreasonable denial of counsel of choice is structural constitutional error mandating automatic reversal. People v. Johnson, 215 Mich.App. 658, 666-669, 547 N.W.2d 65 (1996); Wilson, supra at 283-284, 286.

The Sixth Amendment guarantees an accused the right to retain counsel of choice. See Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ("It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice."). The Sixth Circuit Court of Appeals summarized the various facets of the Sixth Amendment right to counsel, including the right to retain counsel of choice, in Wilson, supra at 278-279:

While the plain language of the amendment simply guarantees a defendant "the Assistance of Counsel for his defence," such language encompasses a guarantee of the right to self-representation, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the right of indigents to appointed counsel in felony prosecutions, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.1984) (en banc) (sixth amendment right to counsel has four components: right to have counsel, minimum quality of counsel, a reasonable opportunity to select and be represented by chosen counsel, and right to preparation period sufficient to assure minimum quality counsel); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978). Additionally, although much sixth amendment jurisprudence has been concerned with the rights of indigent defendants, an accused who desires to and is financially able "should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 1291, 2 L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 5, 99 L.Ed. 4 (1954) ("[A] defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth."); Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942) ("Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected."); Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984); United States v. Burton, 584 F.2d 485, 488-89 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979) ("An essential element of the Sixth Amendment's protection of the right to the assistance of counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his own choosing."). Contra Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir.1982)

. Therefore, "[w]hen a court unreasonably denies defendant counsel of choice, the denial can rise to the level of a constitutional violation." Birt, 725 F.2d at 592; United States v. James, 708 F.2d 40, 44 (2d Cir.1983). The denial of an accused's right to counsel of his choice "may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment...." Glasser, 315 U.S. at 70,

62 S.Ct. at 464.

The court in Wilson, supra at 279, observed the history of upholding the right to retain counsel of choice in the Sixth Circuit, citing and quoting in particular, Linton v. Perini, 656 F.2d 207, 209 (C.A.6, 1981) ("`The right to choose one's own counsel is an essential component of the Sixth Amendment because, were a defendant not provided the opportunity to select his own counsel at his own expense, substantial risk would arise that the basic trust between counsel and client, which is a cornerstone of the adversary system, would be undercut.'"). The Wilson court concluded, "Conceding that an accused has the right to assistance of counsel at trial as well as the fundamental and personal nature of that right, it is clear that when an accused is financially able to retain an attorney, the choice of counsel to assist him rests ultimately in his hands and not in the hands of the State." Wilson, supra at 279-280.

Similarly, Michigan courts have long recognized that the accused's right to retain counsel of choice is an essential element of the right to counsel. In People v. Williams,...