People v. Mitchell
| Citation | 454 Mich. 145,560 N.W.2d 600 |
| Decision Date | 25 March 1997 |
| Docket Number | 98985,Docket Nos. 98984,No. 5,5 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charlie Lee MITCHELL, Defendant-Appellant. Calendar |
| Court | Supreme Court of Michigan |
We granted leave to appeal to address whether defendant was denied his right to counsel, whether review of a defendant's sentence is available to the prosecution, and, if so, whether the Court of Appeals erred in ordering resentencing on the basis of a scoring error under the sentencing guidelines. An inference of ineffectiveness and prejudice on the basis of a thirty-day disciplinary suspension in a seven-month period of representation would violate controlling precedent of the United States Supreme Court and of this Court. Sixth Amendment claims based on defective performance must be established by showing constitutionally defective performance that undermines the reliability of the result. We hold that defendant has failed to overcome the presumption that counsel's performance was reasonable or to show that the deficiencies alleged prejudiced the outcome. We also hold that review of a sentence is available to the prosecution on the same terms as the defense. Therefore, because the guidelines do not have the force of law, the Court of Appeals erred in ordering resentencing on the basis of a scoring error under the Michigan Sentencing Guidelines. 1 We vacate the order of remand and affirm the decision of the Court of Appeals in all other respects.
On October 3, 1988, decedent Raymond Harlin was the victim of an altercation that took place in defendant Charlie Mitchell's apartment. Mr. Harlin was beaten with fists, a blackjack, brass knuckles, a baseball bat, and a woodcarving knife before he was shot. He jumped out the window of the third floor apartment and took a cab to Henry Ford Hospital where he died. The cause of death was gunshot wounds to the neck and back.
Defendant was charged with first-degree murder. M.C.L. § 750.316; M.S.A. § 28.548. Gerald Evelyn was appointed counsel for Mr. Mitchell on October 6, 1988, and represented him at the preliminary examination, on October 14, 1988. At the preliminary examination, the prosecution called Tyrone Thompson, and Mr. Evelyn actively interposed objections during his testimony and argued against the bindover. Mr. Evelyn represented defendant at the final conference on February 3, 1989. On April 5, six months after appointment, Mr. Evelyn received a disciplinary suspension which expired May 5, 1989.
Trial began on May 8, 1989. Tyrone Thompson testified as he had at the preliminary hearing that defendant was the leader of a drug ring and gave the order to shoot Mr. Harlin, which was carried out by codefendant Lamont Mason. Defendant Mitchell did not take the stand, and counsel contended in closing argument that Mr. Thompson's testimony that defendant ordered the killing was equivocal and that the prosecution had failed to carry the burden of proof beyond a reasonable doubt.
Before trial, defendant wrote six letters to the trial judge, the chief judge, and others, requesting removal of counsel. Defendant complained that Mr. Evelyn had not visited him at the Wayne County jail, instead only meeting with him in the "bullpen" at the Recorder's Court. Defendant also believed that there were certain motions that Mr. Evelyn needed to make before the time to do so expired. On April 27, 1989, eleven days before jury selection was to begin, defendant appeared before the court in propria persona for a hearing on defendant's "motion for withdrawal of counsel." Defendant informed the judge on the record that he did not believe counsel was responsive to his concerns, and that counsel had been suspended from practice for thirty days from April 5, 1989, to May 5, 1989. 2 Counsel was officially reinstated on May 8, 1989, the day jury selection in defendant's trial began. That day, Mr. Evelyn advised the court that defendant wanted him removed and had filed a grievance against him. Counsel did not indicate that he was unprepared.
The judge had taken the April 27 motion under advisement pending receipt of a response from Mr. Evelyn. The issue was revisited on Tuesday, May 9, the second day of jury selection. Mr. Evelyn advised the court that "as of yesterday evening," at the conclusion of proceedings, defendant was satisfied with his representation; but, because he had been unable to visit him in the jail that evening, defendant would like him removed as counsel. Mr. Evelyn stated that he had talked with defendant on numerous occasions. The court found nothing that would warrant a change of counsel, nor would the court "abort" the proceedings.
The defendant confirmed that he had received copies of the prosecutor's file in the instant case and another pending case and his transcripts 3 in March, but stated that counsel's failure to discuss matters with him had lead to specific deficiencies, which he detailed. The court directed counsel to confer with defendant and to evaluate and report back regarding any motions defendant might wish to be heard, and Mr. Evelyn's professional opinion regarding whether they were appropriate. The motion was denied without prejudice.
Thereafter, the defendant's concerns over evidence seized at the apartment building from apartment 302, 4 and the validity of the search warrant with regard to apartment 302 were resolved to defendant's satisfaction with a stipulation in which the parties agreed that none of the evidence from apartment 302 except the weapons involved would be admitted. Defendant also expressly waived his right to a Walker 5 hearing for the purpose of suppressing his statement. On Monday, May 15, 1989, Mr. Evelyn informed the court that he had received a grievance filed by the defendant on May 1. Defendant stated he was satisfied with counsel's resolution of his concerns and wanted to withdraw the grievance. 6
Following defendant's conviction on May 17, 1989, of second-degree murder, 7 M.C.L. § 750.317; M.S.A. 28.549, defendant appealed, and the Court of Appeals remanded the case for a Ginther 8 hearing. Trial counsel was not called as a witness, and the trial court held that defendant had not shown objective unreasonableness, or prejudice as required by People v. Pickens, 446 Mich. 298, 521 N.W.2d 797 (1994). Thereafter, the Court of Appeals affirmed defendant's conviction, and on the cross appeal by the people, found error in the scoring of certain offense variables under the sentencing guidelines in which ten points had been allocated under offense variable three--"Intent to Kill or Injure" (OV 3), and zero points under offense variable four--"Aggravated Physical Injury" (OV 4). The Court of Appeals ordered the case remanded to the trial court for resentencing consistent with the panel's rescoring of twenty-five points on OV 3 and twenty-five points on OV 4. Defendant sought leave to appeal his conviction and the order of remand in this Court.
We granted leave, limiting the issues to whether defendant was denied counsel or effective assistance and whether and to what extent a prosecutor may appeal sentencing errors. 549 N.W.2d 561, 450 Mich. 993 (1996).
"It has long been recognized that the right to counsel [ 9] is the right to the 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). However, because "[t]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial, absent some effect of the challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984).
The cases interpreting the right to the meaningful assistance of counsel as it affects the right to a fair trial, "present a continuum." United States v. Decoster, 199 U.S.App.D.C. 359, 364, 624 F.2d 196 (1976). Cases on the continuum proceed from "structural or procedural impediments by the state that prevent the accused from receiving the benefits of the constitutional guarantee," id., to cases where the "issue is counsel's performance when he is 'untrammelled and unimpaired' by state action." Id. at 365, 624 F.2d 196. The companion cases of Cronic and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reflect this continuum.
[ 10
Cases on the continuum range from actual to constructive denial of counsel to instances where the performance of counsel is so deficient that there has been a functional denial of counsel guaranteed by the Sixth Amendment. The methods of analysis employed to determine whether there has been a denial of the constitutional right likewise range from the general to the particular. Cronic reviews the cases in which the courts have found a Sixth Amendment violation without inquiry into whether the outcome was reliable. "The most obvious example is, of course, the failure of the state to provide any counsel whatever." Decoster, at 364, 624 F.2d 196; see also Cronic, at 659, 104 S.Ct. at 2047 (). Equally obvious would be the case in which counsel is provided but does nothing, that is, "no actual 'Assistance' 'for' the accused's 'defence' is provided," in that "counsel entirely fails to subject the prosecution's case to meaningful...
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