People v. King

999 N.W.2d 670

512 Mich. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Frank KING, Defendant-Appellant.

No. 162327

Supreme Court of Michigan.

Argued on application for leave to appeal March 1, 2023

Decided July 28, 2023

Joseph Toia, J.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Peter Lucido, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Emil Semaan, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jacqueline J. McCann and Jessica L. Zimbelman) for defendant.

Everett R. Jackson, in propria persona, amicus curiae.

BEFORE THE ENTIRE BENCH

OPINION

Bolden, J.

[1, 2] ₄This case concerns whether the forfeiture doctrine articulated in People v Carines, 460 Mich. 750, 597 N.W.2d 130 (1999), applies where a self-represented defendant fails to object when the trial court fails to obtain a valid waiver of the right to counsel. We hold it does not. Absent a defendant’s valid waiver of their right to counsel, deprivation of counsel during critical stages of the criminal proceedings is a structural error subject to automatic reversal, even when a defendant formally requests to represent themself.

₅I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendant was charged with breaking and entering as a fourth-offense habitual offender. The trial court appointed counsel for defendant. A few months before trial, defendant moved the trial court to terminate his relationship with his appointed attorney, and he requested to proceed in propria persona. The trial court held a hearing on the motion on March 22, 2018. At the hearing, defendant claimed that defense counsel had failed to pursue his previously filed pro se motions, adequately investigate defenses he wished to pursue, and represent him in the way that he requested. Defense counsel responded that he could not endorse any of the motions that defendant had filed on his own behalf and that defendant would have to either engage a different attorney who was willing to pursue the motions or represent himself.¹ During the hearing to determine whether defendant could represent him- self, the following exchange between the trial court and defendant occurred:

The Court: How do you want to proceed, [defendant], because I’m not going to appoint another attorney. You’ve already been through several. This matter is set for trial.

[Defendant]: I’ll proceed in pro per, your Honor.

The Court: All right. I’m going to keep [defense counsel] on for advisory, as advisory counsel only.

[Defense Counsel]: Very well.

The Court: Be prepared to try your case, sir.

[Defendant]: Yes, sir. Thank you, your Honor.

Following this exchange, the trial court granted defendant’s request to represent himself. However, the trial ₆court ordered defendant’s now former defense counsel to act as advisory counsel to defendant. Trial was scheduled to begin approximately six weeks later, on May 1, 2018.

[3] At a subsequent pretrial hearing held in April 2018, the prosecutor indicated that defendant did not wish to enter a plea. The prosecutor estimated that, if defendant were to be found guilty as charged, his sentencing guidelines would reflect a minimum sentence range of 72 to 240 months’ imprisonment, and the prosecutor would request that defendant be sentenced to a minimum prison term of 15 to 20 years, or 180 to 240 months. Before the hearing, the prosecutor suggested to advisory counsel that the court might consider a Cobbs ² agreement, which could result in a sentence running concurrently with a sentence that defendant was already serving for an unrelated conviction.³ However, at that time, defendant was not interested in this Cobbs agreement and wished to proceed to trial.

On the first day of trial, following jury selection, preliminary instructions, opening statements, and ₇some witness testimony, defendant decided to enter a plea. He entered a no-contest plea in exchange for a Cobbs agreement that capped the minimum sentence imposed at 72 months, to be served concurrently with the sentence he was serving in his other case. Advisory counsel apparently handled the details of the sentencing arrangement that were understood to be part of the Cobbs agreement. The plea colloquy included multiple references to the advisory attorney as defendant’s "attorney," although the court also noted that defendant represented himself. At the sentencing hearing, advisory counsel indicated that he had spent a great deal of time working out the Cobbs agreement, and defendant was sentenced consistent with that agreement.

Defendant sought leave to appeal his conviction, and the Court of Appeals denied his delayed application for leave to appeal. People v King, unpublished order of the Court of Appeals, entered February 20, 2019 (Docket No. 346559). Defendant then sought leave to appeal in this Court, and we remanded the case to the Court of Appeals as on leave granted "to address: (1) whether the defendant’s waiver of his Sixth Amendment right to counsel was constitutionally valid; and (2) if so, what effect, if any, the defendant’s subsequent no contest plea had on that waiver." People v King, 505 Mich. 851, 934 N.W.2d 279 (2019).

On remand, the Court of Appeals affirmed. People v King, unpublished per curiam opinion of the Court of Appeals, issued October 15, 2020, 2020 WL 6117685 (Docket No. 346559). To obtain relief, the Court of Appeals determined that defendant was required to establish: (1) the error had occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial ₈proceedings independent of defendant’s innocence. Id. at 7, citing Carines, 460 Mich. at 763-764, 597 N.W.2d 130.

Applying the Carines test, the Court of Appeals held that the first three factors of the test were met. The purported waiver of counsel was invalid and thus constituted plain error because the trial court had "failed to comply with the substance of [People v Anderson, 398 Mich. 361, 247 N.W.2d 857 (1976),] and the court rule, [MCR 6.005(D)] … ." King, unpub. op. at 8. The plain error also affected defendant’s substantial rights. See id. However, the panel opined that the "underlying purposes" of the right to counsel were upheld during the Cobbs plea because "defense counsel played a significant role in the plea process" and thus defendant had "actually reaped the benefits of being represented by counsel despite purporting to represent himself." Id. at 10.⁴ Further, defendant showed some knowledge of his rights by citing Faretta v California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), and echoing this Court’s language in Anderson, 398 Mich. at 367-368, 247 N.W.2d 857. For these reasons, the panel held that the fourth prong had not been met, recognizing that "[r]eversal is not justified under the fourth Carines prong if the ‘underlying purposes’ of the right at issue have been alternatively upheld." King, unpub. op. at 8-9, quoting People v Cain, 498 Mich. 108, 119, 869 N.W.2d 829 (2015). Judge Swartzle concurred dubitante, agreeing that the majority correctly applied the Carines plain-error test but noting the absurdity of requiring a defendant, who is requesting to proceed in propria persona, to object in order to preserve the ₉appellate right to challenge the waiver of legal counsel. See King (Swartzle, J., concurring dubitante), unpub. op. at 1-2.

Defendant sought leave to appeal in this Court. In response, we ordered oral argument on the application, directing the parties to address (1) whether the Court of Appeals erred by concluding that the trial court’s failure to comply with the requirements of Anderson and MCR 6.005(D) did not warrant reversal, and (2) whether the standard of review for unpreserved constitutional errors from Carines should apply when a criminal defendant argues on appeal that their waiver of counsel was invalid. People v King, 508 Mich. 938, 938-939, 957 N.W.2d 797 (2021).

II. ANALYSIS

A. FORFEITURE v WAIVER

[4–9] The United States Supreme Court has made clear that "[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ " United States v Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed. 2d 508 (1993), quoting Johnson v Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver extinguishes the right, as well as any right to pursue an alleged error on appeal. See Olano, 507 U.S. at 733, 113 S.Ct. 1770; see also People v Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000) ("One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.") (quotation marks and citation omitted). On the other hand, when a litigant fails to timely assert a right or object to an alleged error, it is deemed to be ₁₀forfeited, but the error is not extinguished. Id. at 215, 612 N.W.2d 144; Olano, 507 U.S. at 733, 113 S.Ct. 1770. Notably, preserved structural errors⁵ are a limited class of constitutional errors that are not subject to harmless-error analysis, see Arizona v Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed. 2d 302 (1991), but are instead subject to automatic reversal, Neder v United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed. 2d 35 (1999).

[10, 11] As properly recognized by the Court of Appeals, unpreserved constitutional errors, including structural errors, are reviewed for plain error affecting substantial rights. See Carines, 460 Mich. at 764, 597 N.W.2d 130. This Court recently modified the Carines "plain error" test as applied to unpreserved structural errors in People v Davis, 509 Mich. 52, 67-68, 983 N.W.2d 325 (2022). In addressing the third prong, also known as the prejudice prong, the Davis Court held that "a forfeited structural error creates a formal presumption that this...