People v. Schneider, Docket No. 69284

• Citation: 132 Mich.App. 214,347 N.W.2d 21
• Decision Date: 16 March 1984
• Docket Number: Docket No. 69284
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry SCHNEIDER, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 21

347 N.W.2d 21

132 Mich.App. 214

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry SCHNEIDER, Jr., Defendant-Appellant.

Docket No. 69284.

Court of Appeals of Michigan.

Submitted Oct. 4, 1983.

Decided Feb. 8, 1984.

Rehearing Denied March 12, 1984.

Released for Publication March 16, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gerald L. White, Pros. Atty., and Norman W. Donker, Asst. Pros. Atty., for the People.

John P. Higgins, Midland, for defendant-appellant.

Before ALLEN, P.J., and BEASLEY and CLEMENTS, ^* JJ.

PER CURIAM.

Defendant was arrested on August 28, 1982, in Midland County and charged with operating a motor vehicle while under the influence of intoxicating liquor, third offense, a felony, M.C.L. Sec. 257.625; M.S.A. Sec. 9.2325. Defendant's motion to strike, which was considered as a motion to quash the information by the trial court, was denied by written order on January 18, 1983. Defendant's interlocutory application for leave to appeal from that order was granted by this Court on February 24, 1983.

The two previous convictions were on January 24, 1974, for driving under the influence of intoxicating liquor, first offense, and for driving under the influence of intoxicating liquor, second offense on January 26, 1981, in the 75th District Court in Midland County. In both cases the defendant pleaded guilty to the charge. In both cases the defendant was not represented by counsel in the District Court. The defendant claims that misdemeanor convictions obtained without counsel being present cannot be used against him to support guilt on the present felony charge, nor could they be used to enhance the punishment in the case.

This is not a case where the defendant seeks to set aside a prior misdemeanor conviction or claims that he was denied a constitutional right during the plea-taking process. The question becomes one of whether it is permissible to use prior convictions to support guilt or enhance punishment of a subsequent offense where the records of the prior offenses show that the defendant was informed of his right to counsel and that he thereafter pled guilty, but where the records do not show that he affirmatively waived his right to counsel.

Under the Sixth Amendment to the U.S. Constitution, a conviction for a felony in a state court without counsel being present and without a valid waiver of counsel having been obtained may not be used to support guilt or enhance punishment for another offense. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); People v. Nelson, 73 Mich.App. 395, 251 N.W.2d 602 (1977). Similarly, conviction of a misdemeanor, where the record indicates no counsel or formal waiver of counsel, may not be used to convert a subsequent conviction into a felony under a state's enhanced penalty statute. Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), reh. den. 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980), and People v. Olah, 409 Mich. 948, 298 N.W.2d 422 (1980). See also People v. Courtney, 104 Mich.App. 454, 304 N.W.2d 603 (1981).

Both the defendant and the prosecution agree that in the present case the defendant may not be prosecuted for the third offense felony if he did not effectively waive his right to counsel. What constitutes an effective waiver of counsel in such cases?

"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).

Michigan courts have adopted the Zerbst definition of waiver. See People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972). However, there is no agreement as to the application of waiver to a set of facts. One line of cases supports the prosecution's contention that an express waiver is not required and that, if the court reads or recites to the defendant his rights and defendant responds by saying he wishes to plead guilty, defendant has thereby "knowingly, intelligently and voluntarily" waived his right to counsel. People v. Scott, 381 Mich. 143, 160 N.W.2d 878 (1968); People v. Dunn, 380 Mich. 693, 158 N.W.2d 404 (1968); People v. Hobdy, 380 Mich. 686, 158 N.W.2d 392 (1968).

Another line of cases supports defendant's contention that a waiver is constitutionally infirm if the record shows only that the court read defendant his rights and defendant said he understood but the record does not show that he was given an opportunity to assert those rights or that his statement was not knowingly or intelligently made. People v. Simpson, 35 Mich.App. 1, 192 N.W.2d 118 (1971); People v. Parshay, 379 Mich. 7, 148 N.W.2d 869 (1967); People v. Whitsitt, 359 Mich. 656, 103 N.W.2d 424 (1960).

As the trial judge indicated in his written opinion both Baldasar and Olah could be read to support a...