People v. Lane, Docket No. 99664
| Decision Date | 31 July 1996 |
| Docket Number | No. 5,Docket No. 99664,5 |
| Citation | 551 N.W.2d 382,453 Mich. 132 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond LANE, Defendant-Appellant. Calendar |
| Court | Michigan Supreme Court |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John L. Livesay, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, Prosecuting Attorneys Appellate Service, Lansing, MI, for the people.
Colbeck, McAlhany & Stewart, P.C. by J. Richard Colbeck, Coldwater, MI, for defendant.
We have before us a narrow issue, whether the trial court committed error requiring reversal in failing to advise defendant of his right to counsel, pursuant to MCR 6.005(E), 1 before the habitual offender trial and the sentencing hearing. 2 We do not review the error committed at the habitual offender trial, because it was not properly preserved. In reviewing the court's failure to comply with the court rule before the sentencing hearing, we find the error harmless because defendant does not allege that he was prejudiced by it. We affirm defendant's convictions and sentence.
While an inmate in the Department of Corrections, defendant was charged with three counts of assaulting a prison employee and of being an habitual offender, fourth offense. Before trial defendant filed a motion to proceed in propria persona. 3 After careful examination of defendant pursuant to MCR 6.005(D), 4 the court granted his motion to represent himself and appointed an attorney to assist him. 5 Following a jury trial, defendant was convicted of two of the three initial counts. Immediately following this verdict, the court proceeded to address the habitual offender charge.
The Court: Okay. Apparently, at this point, the only choice, Mr. Lane, would either be to admit to the prior convictions. Do you have a copy of the information in front of you or one available?
I'll just go through them very briefly.
* * * * * *
Do you know what you wish to do, regarding those allegations, at this point?
Mr. Lane: Yes.
The Court: And that would be, please?
Mr. Lane: Go to trial.
The Court: Okay. At that, we will have the jury brought back in, and we will proceed to trial on that issue.
Following the trial of the habitual offender charge, the defendant was found guilty of being an habitual offender, fourth offense. Over 3-1/2 months later, defendant was sentenced by the court to three concurrent prison terms of forty to 180 months.
Defendant appealed, and the Court of Appeals affirmed defendant's convictions, holding that the court's failure to comply with MCR 6.005(E) at the habitual offender trial and the sentencing hearing did not require reversal because "legal counsel was available to defendant in an advisory capacity during all the proceedings." 6
This Court granted leave to appeal 7 limited to the issue whether the trial court committed error requiring reversal in failing to comply with MCR 6.005(E) before the habitual offender trial and sentencing.
We first address what must be done at subsequent proceedings to comply with the court rule. MCR 6.005(E) requires only that the record show that the court advised the defendant of the right to an attorney and informed the defendant that an attorney would be appointed for him if the defendant were indigent, and that defendant either waived the right to counsel or requested a lawyer. In most circumstances, these requirements would be adequately met by the judge telling the defendant that in the upcoming proceeding he has the right to an attorney, at public expense if necessary, and asking the defendant whether he wishes to have an attorney or continue to represent himself. If, in the judge's opinion, the defendant no longer clearly understands the options afforded to him, and the disadvantages of each, the judge should once again engage in the extensive Anderson litany 8 before obtaining The people concede that before both the habitual offender trial and the sentencing hearing the trial court did not comply with MCR 6.005(E). The court did not explicitly advise the defendant on the record of his right to a lawyer's assistance, nor did it determine if defendant still waived that right. The question now becomes whether these errors require reversal.
either a valid waiver or a request for counsel.
Initially, we note that the Court of Appeals reasoning, that remand was not required because defendant had legal counsel available to him in an advisory capacity during the proceedings, is erroneous. The presence of standby counsel does not legitimize a waiver-of-counsel inquiry that does not comport with legal standards. The presence of standby counsel is not recognized as an exception to the Anderson or court rule requirements. People v. Dennany, 445 Mich. 412, 416, 519 N.W.2d 128 (1994).
The Court of Appeals made this same error in People v. Riley, 156 Mich.App. 396, 401, 401 N.W.2d 875 (1986). In that case defendant argued on appeal that "the trial court erred by not informing him at the arraignments, conference calls, or sentencing of his right to an attorney at public expense pursuant to MCR 6.101(C). We overrule that portion of the opinion that held that when the court appointed advisory counsel for the defendant, that sufficed to inform him of his right to counsel.
The next question is what standard must be used to determine whether the court's failure to properly advise the defendant requires reversal. This Court has already held that failure to strictly adhere to the court rules in and of itself does not mandate reversal. See Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975); People v. Dennany, supra.
In Dennany, supra at 439, 519 N.W.2d 128, this Court said that whether a particular departure from the court rules regulating the initial waiver justifies reversal depends on the nature of the noncompliance. Here, however, we are not dealing with an initial waiver and its attendant constitutional implications. No one has alleged that the waiver at subsequent proceedings is required by the Michigan or United States Constitutions. As Justice Boyle noted in her dissent in Dennany, supra at 464, 519 N.W.2d 128, "[t]he requirement in MCR 6.005(E) that a trial court obtain a new waiver at every subsequent proceeding is neither compelled nor discussed by Faretta [v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ], McKaskle [v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) ], or Anderson." Thus, the standard of review for a subsequent waiver need not be the same as the review of an initial waiver.
Review of the record of the trial and conviction of the habitual offender charge convinces us that the court's failure to follow the court rule could not have been decisive of the outcome. This trial took place immediately after defendant's trial on the assault charges. Not only is it implausible to think that defendant would have requested counsel, but defendant's doing so would not have affected the outcome of the trial. The charges were straightforward and the prior convictions clearly documented. No other result would have been possible, even with the assistance of counsel. We decline to review the merits of this assignment of error and affirm defendant's conviction of being an habitual offender.
At the sentencing hearing, the court again failed to advise defendant of the right to counsel. We find that this omission could have been decisive of the outcome. The sentencing hearing took place 3-1/2 months after the initial trial and waiver, and the record reflects defendant's obvious confusion and lack of preparation. Had defendant been advised of his right to counsel, he may well have availed himself of that opportunity, and this decision could have been decisive of the outcome. See Grant, supra.
This now leads us into the area left unresolved by Grant---what is the standard of reversal when the Court considers unpreserved, nonconstitutional error? We assume for purposes of the argument that the error in deviating from the court rule could have been decisive of the outcome under Grant. However, no argument has been advanced that the error was prejudicial. We conclude that the error was harmless under any standard because defendant has not alleged that the error has prejudiced him in any way, and affirm the decision of the Court of Appeals regarding the habitual offender sentence. At this time we do not address the standard for reversal of plain, unpreserved, nonconstitutional error.
We affirm defendant's convictions and sentence.
Where the issue is whether the accused waived his constitutional right to counsel, the burden is necessarily on the people, who assert that his conviction should be affirmed, to show that he duly waived his right to counsel. A defendant no more has a burden to object to the inadequacy of the judge's inquiry at a proceeding at which it is asserted that he waived his right to counsel, than he has a burden, at arraignment or at trial, to object to a failure to inform him of his right to, or to...
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