People of Michigan v. Derick Levon Debord ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 14, 2017
Plaintiff-Appellee,
v No. 330470
Livingston Circuit Court
DERICK LEVON DEBORD, LC No. 15-022814-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and O’CONNELL and METER, JJ.
PER CURIAM.
Defendant appeals as of right from his convictions following a jury trial of operating a
vehicle while intoxicated, third offense, MCL 257.625; and operating a vehicle while license is
suspended or revoked, second offense, MCL 257.904. The trial court sentenced him as a fourth-
offense habitual offender, MCL 769.12, to four to 20 years’ imprisonment and to 84 days in jail,
respectively. We affirm.
A man and a female companion were travelling in a car that left the roadway and crashed.
One witness who observed the scene after the crash testified that the man was in the car’s
driver’s seat and his companion was in the passenger’s seat. The witness explained that the man,
who was not wearing pants when he exited the vehicle, walked to the passenger’s side of the car
and retrieved a pair of pants, which he donned before returning to the driver’s seat. Another
witness noticed that the man’s female companion, who was pacing around outside the vehicle,
placed a bottle of Jägermeister next to a tree. The witness stated that the man and his companion
proceeded away in their car, with the man driving. The witness identified the man as defendant.
A police officer who subsequently gave defendant a series of field sobriety tests testified
that defendant failed the tests. The officer stated that he spoke with defendant’s female
companion, who told him that defendant had been driving that night. At trial, the woman
testified that she had been driving, but acknowledged that she can be heard on a recording of her
interview by the aforementioned officer saying that defendant asked her to tell the police that she
had been driving.
On appeal, defendant argues that the trial court abused its discretion by denying his
request, made on the first day of trial, for a continuance to obtain new counsel. Defendant
argued that he was unhappy with his appointed counsel’s representation. He told the court his
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family was prepared to hire independent counsel. The court denied the motion, noting that
defendant had had ample time to secure his own counsel since he was bound over for trial nearly
three months earlier.
We review for an abuse of discretion a trial court’s decision regarding a request for
substitution of counsel. People v Strickland, 293 Mich. App. 393, 397; 810 NW2d 660 (2011).
“A trial court abuses its discretion when its decision falls outside the range of reasonable and
principled outcomes.” Id. (citation and quotation marks omitted). When evaluating the trial
court’s decision, we are guided by consideration of the following factors:
(1) whether the defendant is asserting a constitutional right, (2) whether the
defendant has a legitimate reason for asserting the right such as a bona fide
dispute with his attorney, (3) whether the defendant was negligent in asserting his
right, (4) whether the defendant is merely attempting to delay trial, and (5)
whether the defendant demonstrated prejudice resulting from the trial court’s
decision. [People v Echavarria, 233 Mich. App. 356, 369; 592 NW2d 737 (1999).]
“The Sixth Amendment guarantees an accused the right to retain counsel of choice.”
People v Akins, 259 Mich. App. 545, 557; 675 NW2d 863 (2003) (citation and quotation marks
omitted). “However, the right to counsel of choice is not absolute.” Id. (citation and quotation
marks omitted). Rather, “[a] balancing of the accused’s right to counsel of his choice and the
public’s interest in the prompt and efficient administration of justice is done in order to
determine whether an accused’s right to choose counsel has been violated.” Id. (citations and
quotation marks omitted). “A mere allegation that a defendant lacks confidence in his or her
attorney, unsupported by a substantial reason, does not amount to adequate cause . . . [and] a
defendant’s general unhappiness with counsel’s representation is insufficient.” Strickland, 293
Mich. App. at 398.
Defendant informed the court that he was not happy with his attorney’s representation for
a variety of reasons, including that he had not seen her for approximately two months before
meeting with her on the Friday before trial (which began the following Monday). Conversely,
defense counsel explained to the court that she met with defendant at the county jail five times in
the two weeks before trial.
Defendant admitted that he did not have any problems with his counsel when she was
first appointed and that they had been “getting along pretty good . . . .” However, defendant
stated that he became dissatisfied with her representation, in part because counsel had advised
him to plead guilty and had informed him that he would get the maximum sentence if he was
found guilty after a jury trial. Defense counsel indicated that she discussed with defendant “the
liabilities versus the benefit of going forward with trial, [and] his exposure to penalty.” Given
defendant’s extensive criminal history, including his prior drunk driving convictions, any advice
counsel may have given about the benefits of pleading guilty was consistent with her duty of
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competence, MRPC 1.1(c);1 and communication, MRPC 1.4(b);2 as well as with the scope of her
representation, MRPC 1.2(c).3
Defendant also complained that he did not receive his discovery package until the day
before trial and had not had the chance to go through it with his family. Defense counsel
informed the court that defendant requested his discovery packet on the Friday evening before
trial and she gave him the discovery packet and the case file on Sunday morning. This
comported with her duty to “act with reasonable . . . promptness in representing a client.”
MRPC 1.3.
Further, there was no showing that defendant’s family members were prepared to hire a
substitute attorney. None of defendant’s family members were present in the courtroom to
inform the court of any decision or preparedness to hire a substitute attorney. Apart from
defendant’s court-appointed attorney, no other attorney “communicated with the court in any
manner to convey to the court that he was ready to undertake defendant’s cause.” People v
Stinson, 6 Mich. App. 648, 654; 150 NW2d 171 (1967).
Further, defendant was bound over for trial on June 23, 2015, after waiving a preliminary
examination, and was arraigned on July 30, 2015, on a bench warrant issued for his failure to
appear at a July 17, 2015, pretrial. Defendant was present at the July arraignment but did not
complain about counsel’s representation. Nor did he raise the matter at the subsequent
settlement conference. Thus, when trial commenced on September 21, 2015, defendant had had
ample time to avail himself of the opportunity to obtain substitute counsel but failed to do.
Stinson, 6 Mich. App. at 654.
Because witnesses and 50 potential jurors were present and the prosecutor and defense
counsel were ready to proceed with trial, defendant’s decision to request an adjournment on the
first day of trial would have resulted in an unreasonable delay. See Strickland, 293 Mich. App. at
399. “While the appellate courts of this land zealously guard against the rights of defendants to
counsel, they equally concern themselves with the need to dispose of litigation with proper
diligence to avoid a breakdown of the judicial process which is threatened by long delays.”
People v Clark, 9 Mich. App. 602, 605; 157 NW2d 798 (1968).
Finally, defendant did not show that he was prejudiced by the trial court’s decision. The
central dispute at trial was the identity of the person operating the car at the time of the crash.
The prosecution presented compelling evidence that defendant had been driving, and defendant
1
MRPC 1.1(c) provides that a lawyer must not “neglect a legal matter entrusted to the lawyer.”
2
“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.” MRPC 1.4(b).
3
“[A] lawyer may discuss the legal consequences of any proposed course of conduct with a
client and may counsel or assist a client to make a good-faith effort to determine the validity,
scope, meaning, or application of the law.” MRPC 1.2(c).
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has failed to demonstrate how a different attorney would likely have obtained a different verdict.
Defendant has failed to show any entitlement to appellate relief.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Peter D. O'Connell
/s/ Patrick M. Meter
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