People v. Lane , 453 Mich. 132 ( 1996 )

Weaver, J.

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.

I

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.

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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 3V2 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 appeal⁷ 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.

n

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 to 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 litany⁸ before obtaining either a valid waiver or a request for counsel.

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.

m

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 NW2d 128 (1994).

The Court of Appeals made this same error in People v Riley, 156 Mich App 396, 401; 401 NW2d 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.

IV

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 NW2d 96 (1975); People v Dennany, supra.

In Dennany, supra at 439, 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, “[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 US 806; 95 S Ct 2525; 45 L Ed 2d 562 (1975)], McKaskle [v Wiggins, 465 US 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.

We hold that the failure to comply with MCR 6.005(E) is to be treated as any other trial error. The procedure for reviewing unpreserved, nonconstitutional plain error is set forth in People v Grant, 445 Mich 535; 520 NW2d 123 (1994).⁹ Under that standard, a plain, unpreserved error may not be considered by an appellate court for the first time on appeal unless the error could have been decisive of the outcome or unless it falls under the category of cases, yet to be clearly defined, where prejudice is presumed or reversal automatic. Grant, p 553. It is clear that this case does not fall into the latter category, and we need only decide if the error affected defendant’s substantial rights.

HABITUAL OFFENDER TRIAL

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.

SENTENCING hearing

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 3½ 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.

Brickley, C.J., and Boyle, Riley, and Mallett, JJ., concurred with Weaver, J.

1 MCR 6.005(E) provides:

Advice at Subsequent Proceedings. Even though a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding (e.g., preliminary examination, arraignment, proceedings leading to possible revocation of youthful trainee status, hearings, trial or sentencing) must affirmatively show that the court advised the defendant of the right to a lawyer’s assistance (at public expense if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings,

(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or

(2) if the defendant requests a lawyer and is financially unable to retain one, the court must appoint one; or

(3) if the defendant wants to retain a lawyer and has the financial ability to do so, the court must allow the defendant a reasonable opportunity to retain one.

2 This issue has never before been squarely before this Court. In People v Dennany, 445 Mich 412, 416; 519 NW2d 128 (1994), this Court considered “the requisite judicial inquiry to be made before a criminal defendant who affirmatively seeks to proceed in propria persona may be permitted to waive his correlative right to counsel and represent himself.’’ Upon finding that the waiver had not been properly made, the Court held that “Where there is error but it is not one of complete omission of the court rule and Anderson requirements, reversal is not necessarily required. . . . Whether a particular departure justifies reversal ‘will depend on the nature of the noncompliance.’ ” Id., p 439. See People v Anderson, 398 Mich 361; 247 NW2d 857 (1976).

3 In one’s own proper person. Black’s Law Dictionary (6th ed), p 792.

4 MCR 6.005(D) provides:

Appointment or Waiver of a Lawyer. If the court determines that the defendant is financially unable to retain a lawyer, it must promptly appoint a lawyer and promptly notify the lawyer of the appointment. The court may not permit the defendant to waive the right to be represented by a lawyer without first

(1) advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and

(2) offering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.

5 The Court-. Mr. Lane, certainly in any matter as grave as this one, with the supplemental information, a maximum penalty of up to 15 years in prison is possible. [E]ach of the other three counts, maximum penalties of up to four years and/or fines of not to exceed $2,000 are possible.

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The Court-. Certainly, Mr. Lane, one of the adages often quoted in circumstances such as this is the old homily that anyone who represents himself has a fool for a — for a client.

The fact is that Mr. Goodwin is vastly experienced and well-qualified in — in criminal matters such as these. Indeed, one of the reasons that he among other attorneys happens to be appointed on — on criminal cases — and, as a matter of fact, he and another attorney share the public defender contract on all non-prison cases in which people are indigent — is because of his — his experience.

And, quite frankly, I think that you would be far better off with— with Mr. Goodwin as an attorney than trying to represent your — • yourself, at least as far as trying the case is concerned, if it goes to trial.

The Court: Certainly I can’t force you h> — to have an attorney represent you. What I will do is to have Mr. Goodwin available to— to assist you, to answer any questions that you may have. As well, at the time of trial, I will have him available for you to — to assist.

If you persist in your motion to represent yourself, certainly you have that — that right, but the court would give appropriate instructions to the jury as well that certainly they’re not to hold that against you, but you are not to get any benefit from that in their eyes as — as well.

Can you understand that?

Defendant: Yes, sir.

6 Unpublished memorandum opinion, issued April 27, 1994 (Docket No. 155399).

7 448 Mich 851 (1995).

8 This Court specified three requirements that must be met before a defendant’s request to dismiss his counsel and proceed in propria persona would be granted: 1) the request must be unequivocal. 2) The trial judge must determine whether the defendant is asserting his right knowingly, intelligently and voluntarily. The trial court must make the defendant aware of the dangers and disadvantages of self-representation. The defendant’s competence is a pertinent consideration in making this determination. 3) The trial judge must determine that the defendant’s acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business. People v Anderson, n 2 supra, pp 367-368.

9 People v Grant, supra, adopted the three-step analysis set forth in United States v Olano, 507 US 725, 732-734; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

The first limitation on appellate authority under Rule 52(b) [plain, unpreserved error] is that there indeed be an “error.” Deviation from a legal rule is “error” unless the rule has been waived.

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The second limitation on appellate authority under Rule 52(b) is that the error be “plain.” “Plain” is synonymous with “clear” or, equivalently, “obvious.” . . .

The third and final limitation on appellate authority ... is that the plain error “affec[t] substantia] rights.” This is the same language employed in Rule 52(a), and in most cases it means that the error must have been prejudicial: It must have affected the outcome of the . . . proceedings. [Emphasis added; citations omitted.]

The first two elements have been met, so we only need address the third.