People v. Johnson
| Decision Date | 09 September 1985 |
| Docket Number | Docket No. 79021 |
| Citation | 373 N.W.2d 263,144 Mich.App. 125 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth JOHNSON, Defendant-Appellant. 144 Mich.App. 125, 373 N.W.2d 263 |
| Court | Court of Appeal of Michigan — District of US |
[144 MICHAPP 127] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief Asst. Pros. Atty., and Don W. Atkins, Asst. Pros. Atty., for the people.
Ted C. Farmer, Detroit, for defendant-appellant on appeal.
Before HOOD, P.J., and V.J. BRENNAN and MAHER, JJ.
Following a bench trial in Detroit Recorder's Court on May 9 and 10, 1984, defendant was found guilty of unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, and assault with intent to commit unarmed robbery, M.C.L. Sec. 750.88; M.S.A. Sec. 28.283. Defendant was acquitted on an additional charge of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. He was sentenced to from 8 to 15 years in prison and he appeals as of right.
[144 MICHAPP 128] Defendant's first claim is that he was denied the effective assistance of counsel by his original trial counsel's failure to oppose the prosecutor's interlocutory appeal of the trial court's reduction of the charges against defendant.
Before trial, defendant's original counsel moved to reduce the charges claiming that the examining magistrate abused his discretion in binding over defendant for trial on the charges of armed robbery 1, assault with intent to rob while armed 2, and assault with intent to commit murder. 3 The motion was granted and in an order dated January 31, 1984, the trial court reduced the charges to unarmed robbery 4, assault with intent to do great bodily harm less than murder 5, and assault with intent to rob while unarmed. 6 The prosecutor filed leave to appeal with this Court and immediate consideration was granted. The defendant's counsel did not file a brief in opposition to the prosecution's application for leave to appeal to this Court. After determining that the examining magistrate did not abuse his discretion in binding defendant over for trial, in an order dated March 16, 1984, this Court vacated the January 31, 1984, order reducing the charges and remanded the case back to Recorder's Court for reinstatement of the original charges and for trial.
Prior to trial, defendant dismissed his retained counsel and was appointed new counsel by the trial court. On the day of trial, defendant again requested a new attorney because his appointed counsel had refused to appeal from the adverse [144 MICHAPP 129] decision that resulted from the prosecution's interlocutory appeal of the trial court's reduction of the charges. The trial court denied defendant's request for new counsel, finding that it had not been timely made. The trial court also concluded that such an appeal would be fruitless and would only serve to delay the defendant's trial.
Defendant asserts that he was denied the effective assistance of counsel by his original trial counsel's failure to oppose the prosecution's interlocutory appeal from a reduction in the charges, which resulted in the reinstatement of the original charges by this Court. According to the defendant, had his original counsel opposed the prosecution's appeal, this Court would have been convinced that the reduction of the charges was warranted and defendant would have gone to trial on the lesser charges, he would not have given up his right to a trial by jury and there was a good possibility he would have been convicted of lesser offenses.
A motion for a new trial or a request for an evidentiary hearing was not made by the defendant prior to the taking of this appeal. Thus, the exact reasons why the defendant's original counsel did not oppose the prosecution's appeal are not contained in the record. Generally, a motion for a new trial or for an evidentiary hearing is a prerequisite to appellate review of a claim of ineffective assistance of counsel. People v. Lawson, 124 Mich.App. 371, 373, 335 N.W.2d 43 (1983). However, the absence of a motion for new trial or an evidentiary hearing is not fatal to appellate review where the details relating to the alleged deficiencies of the defendant's trial counsel are sufficiently contained in the record to permit this Court to reach and decide the issue. People v. Cicotte, 133 Mich.App. 630, 636, 349 N.W.2d 167 (1984). In the present case, because no motion for a new trial or an [144 MICHAPP 130] evidentiary hearing was made, this Court's review of defendant's claim is limited to the present record.
In analyzing a federal constitution Sixth Amendment claim of ineffective assistance of counsel (U.S. Const., Am. VI) this Court follows the guidelines set forth in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Vicuna, 141 Mich.App. 486, 367 N.W.2d 887 (1985).
For State of Michigan constitutional ineffective assistance of trial counsel claims (Const.1963, art. 1, Sec. 20), our courts follow the bifurcated Garcia 7 test.
Recently, in Evitts v. Lucey, 469 U.S. ----, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) 8, the United States Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, a criminal defendant is entitled to the effective assistance of appellate counsel in a first appeal as of right. See also People v. Centers, 141 Mich.App. 364, 367 N.W.2d 397 (1985).
The importance of appellate counsel is explained by the Evitts Court:
105 S.Ct. at 834-835. (Emphasis in original.)
When determining that "[a] first appeal as of right * * * is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney", the Evitts Court explained that "nominal representation on an appeal as of right--like nominal representation at trial--does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all." Id., 836.
We point out the right to effective assistance of appellate counsel in a defendant's first appeal (after his conviction) as of right because the case before us poses an unusual set of circumstances. Defendant's trial counsel did not submit an appellate brief in response to the prosecutor's application for leave to appeal (a discretionary appeal) [144 MICHAPP 132] from the circuit court's order reducing the charges against the defendant. Technically, on the facts, one could label trial counsel as an "appellate" counsel for the sole purpose of opposing the prosecutor's application for leave to appeal. We believe, however, that to characterize a trial counsel as a defendant's appellate counsel for pretrial proceedings and trial proceedings (this case does not present a situation where trial counsel also acts as appellate counsel in a post-conviction appeal as of right) would create confusion with the roles of that of trial counsel and that of appellate counsel for a defendant's first appeal as of right after the defendant's conviction.
Therefore, it is our opinion that, throughout pretrial, trial and sentencing proceedings, trial counsel remains "trial counsel" even though he or she, during the course of a defendant's representation, is faced with various appellate duties and, thus, wears the hats of both trial and "appellate" counsel. Thus, for purposes of the instant case, defense counsel's pretrial failure to file an appellate brief in opposition to the prosecutor's application for leave to appeal to this Court will be treated as an omission committed by trial counsel rather than as a failure to represent the defendant as appellate counsel.
The basic rule in Michigan is that "[f]or a defendant to prevail on a claim of ineffective assistance of counsel, the record must support the claim and exclude all hypotheses consistent with the view that the trial attorney represented him adequately". People v. Pawelczak, 125 Mich.App. 231, 240, 336 N.W.2d 453 (1983), citing People v. Ginther, 390 Mich. 436, 442-443, 212 N.W.2d 922 (1973). Under Strickland, supra, the defendant identified the act or omission of counsel that is "alleged not to have been the result of reasonable professional [144 MICHAPP 133] judgment". 104 S.Ct. at 2066. Under Garcia, supra, defendant identified the serious mistake but for which he claims he would have had a reasonably likely chance for acquittal.
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