People v. Johnson

• Decision Date: 08 February 1994
• Docket Number: Docket Nos. 159316,159537 and 159538
• Citation: 203 Mich.App. 579,513 N.W.2d 824
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Alvin JOHNSON, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lesa Marie LAURIA, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jamie Joe LUPO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 824

513 N.W.2d 824

203 Mich.App. 579

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Alvin JOHNSON, Jr., Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lesa Marie LAURIA, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jamie Joe LUPO, Defendant-Appellant.

Docket Nos. 159316, 159537 and 159538.

Court of Appeals of Michigan.

Submitted June 8, 1993, at Grand Rapids.

Decided Feb. 8, 1994, at 9:45 a.m.

Released for Publication April 1, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Joseph K. Sheeran, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

Bay County Office of Public Defender by Robert K. Hess and Kenneth M. Malkin, Bay City, for defendants-appellants.

Before WHITE, P.J., and NEFF and SCHMUCKER, ^* JJ.

PER CURIAM.

In these consolidated cases, defendants appeal by leave granted from "interim investigation orders" issued by the circuit judge. We vacate those orders in part.

Defendants were charged with various felonies. They were represented by the Bay County Public Defender's Office. In each case, the judge issued an "Interim Investigation Order" requiring their attorneys to

(a) inquire of the defendant and the Prosecuting Attorney concerning the defendant's prior convictions; and

(b) as to each conviction,

(1) obtain from defendant an affidavit of facts sufficient to determine the validity of the conviction; or

(2) obtain from the defendant an affidavit that he understands that such conviction may be used in determining the sentence in the case and a statement voluntarily giving up the defendant's right to challenge the validity; or

(3) make a diligent effort to obtain from the court where the conviction occurred sufficient documentation (including transcripts) to enable this Court to determine if counsel for the defendant was present or effectively waived in the proceedings.

The orders directed that the attorneys compile the above information in written form, to be furnished, in the event their clients were convicted, by the attorneys to the probation department and the prosecuting attorney within a specified period. Intentional failure to comply with these directives would be considered a waiver of the right to raise as an issue the constitutional validity of a prior conviction for sentencing purposes.

The orders also required the attorneys to review the presentence report in detail with their clients as soon as it became available and to transmit requests for modification in writing, giving precise details and reasons, to the prosecutor, the probation department, and the judge within ten days of the report's availability. This portion of the orders also applied to the prosecutor. Nonconforming requests would be considered waived in the absence of a showing of good cause for failure to comply.

In a subsequent opinion in a related matter, the judge explained that the interim investigation orders were intended to assure that defense attorneys were adequately prepared to represent their clients before entering into plea negotiations or otherwise advising them, and to avoid unnecessary delays in sentencing.

Defendant Johnson sought an emergency appeal of the order he received, with which the similar appeals sought by defendants Lauria and Lupo were consolidated. This Court granted leave to appeal on December 29, 1992, and, pending resolution, stayed enforcement of the Johnson order and similar orders in other cases

to the extent that [the] order requires defense counsel to inquire into and collect and report information about any of defendant's prior convictions.

The stay did not apply to that portion of the interim investigation orders requiring prompt review of the presentence report, or the transmission of written requests for modification.

Defendants contend that the interim investigation orders infringe on their Fifth Amendment right to remain silent, their statutory attorney-client privilege, and their rights under M.C.L. § 771.14(5); M.S.A. § 28.1114(5) and MCR 6.425(D) to claim at the time of sentencing that prior convictions are constitutionally invalid. Defendants further contend that the orders impermissibly shift to them the prosecutor's burden of establishing the constitutional validity of challenged convictions.

I

In reviewing defendants' Fifth Amendment claim, we find no constitutional difficulty posed by the orders' requirement that defense counsel inquire of their clients and the prosecuting attorney concerning prior convictions. To the extent, however, that defendants are obliged to set forth details by affidavit, and that their attorneys are thereafter required to divulge that information to the prosecuting attorney and the probation department, with failure to comply punishable by a deemed waiver of rights, the orders violate defendants' right against compelled self-incrimination.

Under the Fifth Amendment, a defendant has the right throughout criminal proceedings to refuse to provide incriminating information. People v. Manser, 172 Mich.App. 485, 488, 432 N.W.2d 348 (1988); People v. Peques, 104 Mich.App. 45, 46, 304 N.W.2d 482 (1980), aff'd 412 Mich. 851, 312 N.W.2d 83 (1981). A judge may not employ the sentencing power to elicit information from a defendant, or to punish him for exercising his right to remain silent. Peques, supra. Prior convictions affect the applicable sentencing guidelines, and can be used by the prosecutor to secure habitual offender sentence enhancements, even after conviction, if the prosecutor was unaware of the prior conviction until then. M.C.L. § 769.13; M.S.A. § 28.1085; People v. Fountain, 407 Mich. 96 98, 282 N.W.2d 168 (1979). Although prior convictions are contained in public records, compliance with the order could apprise the prosecutor and the probation department of convictions of which they were unaware, e.g., prior convictions from other jurisdictions.

II

To the extent the orders require defense counsel to disclose confidential communications, they also violate the attorney-client privilege. Under M.C.L. § 767.5a(2); M.S.A. § 28.945(1)(2), communications are privileged and confidential when they are necessary to enable an attorney to serve as an attorney. The purpose of the privilege is to enable a client to confide in an attorney, secure in the knowledge that the communication will not be disclosed. Grubbs v. K Mart Corp., 161 Mich.App. 584, 589, 411 N.W.2d 477 (1987). The privilege is the client's alone and may be waived only by the client. Id. at 590, 411 N.W.2d 477.

The intent of the interim orders was to assure that information necessary to enable defense counsel to serve as attorneys was obtained. For that very reason, defendants' communications with their attorneys concerning prior convictions are privileged and confidential. Under the statute, attorneys are precluded from disclosing such communications, and such disclosure may not be compelled.

III

The interim investigation orders contained two automatic waiver provisions, one concerning intentional failure to comply with the requirements concerning information about a prior conviction, the other concerning nonconforming requests to modify presentence reports. Defendants argue that the provisions violate their right under M.C.L. § 771.14(5); M.S.A. § 28.1114(5) and MCR 6.425(D)(2) to challenge constitutionally invalid convictions and incorrect information in the presentence report. They also argue that the orders establish the functional equivalent of a local court rule, without approval as required by MCR 8.112(A).

M.C.L. § 771.14(5); M.S.A. § 28.1114(5) provides:

At the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report. The court may order an adjournment to permit the parties to prepare a challenge or a response to a challenge....

MCR 6.425(D)(2) provides in part:

... At sentencing the court, complying on the record, must:

(a) determine that the defendant, the defendant's lawyer, and the prosecutor have had an opportunity to read and discuss the presentence report,

(b) give each party an opportunity to explain, or challenge the accuracy or relevancy of, any information in the presentence report, and resolve any challenges in accordance with the procedure set forth in subrule (D)(3),

(c) give the defendant, the defendant's lawyer, the prosecutor, and the victim an opportunity to advise the court of any circumstances they believe the court should consider in imposing sentence.

These provisions secure...