People v. Smith

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LOREN JOHN SMITH, JR., Defendant-Appellant.

No. 364130

Court of Appeals of Michigan

July 2, 2024

UNPUBLISHED

Osceola Circuit Court LC No. 2022-006029-FH

Before: Markey, P.J., and Riordan and Cameron, JJ.

Per Curiam

Defendant appeals as of right his jury trial convictions of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense, MCL 257.625(9)(c); resisting or obstructing a police officer, MCL 750.81d(1); and operating a motor vehicle with a suspended license, MCL 257.904(1). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 4 to 30 years' imprisonment for his third-offense OUI conviction, 27 months' to 15 years' imprisonment for his resisting or obstructing a police officer conviction, and 48 days' jailtime for his operating with a suspended license conviction. Because defendant was denied his constitutional right to the assistance of counsel, we vacate defendant's convictions and remand for a new trial.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

James Loomis was driving with his wife when a driver he believed was intoxicated almost ran him off the road. Loomis's wife called the police while Loomis followed the offending vehicle to a nearby liquor store. When Officer Patrick McClure from the Evart City Police Department arrived a bit later, defendant had returned from inside the liquor store and was sitting in the driver's seat of the vehicle. Officer McClure pulled behind the vehicle, activated his lights, approached the vehicle, and spoke to defendant. He could smell alcohol and noted defendant's eyes were glassy and bloodshot. Defendant repeatedly failed to follow Officer McClure's instructions. Defendant also declined to submit to a preliminary breath test (PBT) or any sobriety tests. Defendant's driver's license was suspended at the time.

Officer McClure arrested defendant for OUI and took him to jail. Defendant repeatedly asserted his right to remain silent. Officer McClure obtained a search warrant for defendant's blood. Defendant's blood alcohol content (BAC) was 0.232 grams of alcohol per 100 milliliters of blood, nearly three times the legal limit. Eventually, defendant was charged with the crimes listed above.

During the proceedings before the district court, defendant initially requested the appointment of counsel. Later though, defendant apparently asserted his right to represent himself, which the district court granted without holding a hearing. As a result, the record does not reveal any colloquy between the district court and defendant related to his decision to waive his right to counsel and proceed in propria persona. Defendant represented himself at the preliminary examination, all pretrial hearings, the one-day jury trial, and sentencing. He repeatedly made arguments regarding jurisdiction, standing, the suppression of evidence, and the constitutionality of the charges against him. The district and circuit courts presiding over defendant's case either did not consider these arguments or denied them. Defendant was convicted and sentenced as previously noted. This appeal followed.

II. RIGHT TO COUNSEL

Defendant argues he is entitled to reversal of his convictions and a new trial because the district and circuit courts failed to ensure his waiver of his right to counsel was knowingly, intelligently, and voluntarily given. We agree.

A. STANDARD OF REVIEW

"We review for clear error the trial court's factual findings surrounding a defendant's waiver." People v. Russell, 471 Mich. 182, 187; 684 N.W.2d 745 (2004). "A finding is clearly erroneous if this Court is left with a definite and firm conviction that the trial court made a mistake." People v. Jarrell, 344 Mich.App. 464, 474; 1 N.W.3d 359 (2022) (quotation marks and citation omitted). "However, to the extent that a ruling involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." Russell, 471 Mich. at 187. "De novo review means that we review the issues independently, with no required deference to the trial court." Jarrell, 344 Mich.App. at 473 (quotation marks and citation omitted). "The complete denial of counsel at a critical stage of a criminal proceeding is a structural error that renders the result unreliable, thus requiring automatic reversal." Russell, 471 Mich. at 194 n 29.

B. LAW AND ANALYSIS

"The right to the assistance of counsel at all critical stages of criminal proceedings for an accused facing incarceration is protected by the Sixth Amendment, applicable to the states through the Fourteenth Amendment." People v King, 512 Mich. 1, 11; 999 N.W.2d 670 (2023); see U.S. Const, Am VI and XIV. In addition to securing the right to counsel, the Sixth Amendment also "implicitly guarantee[s]" the right to self-representation. People v. Anderson, 398 Mich. 361, 366; 247 N.W.2d 857 (1976), citing Faretta v. California, 422 U.S. 806; 95 S.Ct. 2525; 45 L.Ed.2d 562 (1975). "The right of self-representation under Michigan Law is secured by both Constitution and statute." Anderson, 398 Mich. at 366; see Const 1963, art 1, § 13 and MCL 763.1. "The right to counsel is considered fundamental because it is essential to a fair trial and attaches at the trial stage, which is clearly a critical stage of the proceedings." Russell, 471 Mich. at 187-188. "The United States Supreme Court has stated that courts should indulge every reasonable presumption against waiver of fundamental constitutional rights." People v. Williams, 470 Mich. 634, 641; 683 N.W.2d 597 (2004) (quotation marks and citation omitted).

"Choosing self-representation necessarily requires waiving the right to be represented by counsel." King, 512 Mich. at 11. "The inquiry regarding waivers of Sixth Amendment rights mirrors the inquiry of whether a defendant has validly waived his Fifth Amendment rights: In each instance, the question is whether the defendant gave a knowing, intelligent, and voluntary waiver." Williams, 470 Mich. at 640, citing Patterson v. Illinois, 487 U.S. 285, 297-298; 108 S.Ct. 2389; 101 L.Ed.2d 261 (1988). "Before granting a defendant's request to proceed in propria persona, a trial court must substantially comply with the factors set forth in Anderson, 398 Mich. at 367-368, and MCR 6.005(D) for a defendant to effectuate a valid waiver of the right to counsel." King, 512 Mich. at 11.

Under Anderson, 398 Mich. at 367-368, the trial court must find that the following three factors have been met: (1) the defendant's request to represent themself is unequivocal, (2) the defendant is asserting the right knowingly, intelligently, and voluntarily after being informed of the dangers and disadvantages of self-representation, and (3) the defendant's self-representation "will not disrupt, unduly inconvenience and burden the court and the administration of the court's business." Additionally, MCR 6.005(D) provides that the trial court "may not permit the defendant to make an initial waiver of 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. [King, 512 Mich. at 11-12.]

Defendant argues the circuit court did not substantially comply with Anderson and MCR 6.005(D) before accepting his waiver of his right to counsel.

Defendant was arrested in November of 2021. He first appeared before the district court for arraignment on February 7, 2022. During defendant's arraignment on the warrant, the district court read the felony complaint into the record:

The Court: . . . Well, I have a felony complaint. And the allegation is, is on or about November 13th, 2021 city of Evart, Osceola County, under count one it's indicating operating while intoxicated with a third offense notice below that. And because that's two prior alcohol related driving offenses, the prosecutor has charged you with operating while intoxicated, third offense. That's a felony charge that's punishable now this is the maximum that you'd be facing-$500 to $5,000 fines, one to five years in jail, or probation with 30 days to one year in jail, at least 48 hours to be served consecutively, and 60 to 180 days of community service, rehabilitative programs, cost of prosecution, reimburse the government for emergency response, expenses for prosecuting defendant, and vehicle immobilization would be mandatory of not less than one year nor more than three years.

Do you understand the charge and the maximum consequence you're facing?

Defendant: Yes.

The Court: All right.

Count two. Resisting obstructing a police officer. It's alleged that the same time, date, and venue that you did assault, batter, wound, resist, obstruct, oppose, or endanger Officer McClure, a police officer of the Evart City Police; that the defendant knew or had reason to know was performing his or her duties. This is a felony charge punishable by up to two years in prison and/or a $2,000 fine. A consecutive sentence may be imposed if the assault was committed in a place of confinement. That's not applicable. Anyway, so it could be up to two years in prison, $2,000 fine.

Do you understand that charge?

Defendant: No.

The Court: Okay. Well, I can only tell you what they're charging you with. I-the only thing I have is this charging document.-

Defendant: Yes, sir.

The Court: -So, they're saying that you either assaulted, wounded, resisted, or obstructed, or opposed, or endanger[ed] Officer

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