State of Michigan v WAYNE FRANCIS KANOUSE
Docket No. 68278
Court of Appeals of Michigan
134 Mich App 401; 350 NW2d 760
August 16, 1983, Submitted January 3, 1984, Decided
Subsequent case developments: Decided on Rehearing May 1, 1984. Leave to appeal applied for.
Before: Danhof, C.J., and MacKenzie and M. Dodge, * JJ.
* Circuit judge, sitting on the Court of Appeals by assignment.
Opinion by: PER CURIAM
OPINION
On Rehearing
In our original opinion in this case, 131 Mich App 363; 346 NW2d 101 (1984), we affirmed defendant's convictions of driving under the influence of liquor (DUIL), third offense, MCL 257.625; MSA 9.2325, and resisting arrest, MCL 750.479; MSA 28.747. We granted defendant's application for rehearing to clarify our position regarding who has the burden of proof in a situation, such as defendant's, where a prior DUIL conviction is challenged as invalid for sentence enhancement purposes because the defendant was not informed of his right to appointed counsel if indigent.
We hold that it is the defendant's burden to show, when making his collateral challenge, that he was indigent at the time of the prior offense in order to invalidate a prior guilty plea conviction at which the trial judge failed to inform defendant of his right to appointed counsel if the defendant could not afford to retain an attorney. Our holding here puts no greater burden on a defendant than that borne by him originally. In order to obtain appointed counsel at trial, a defendant must disclose his financial status and show an inability to retain counsel. See People v Gillespie, 41 Mich App 748; 201 NW2d 104 (1972); People v Cochran, 406 Mich 947 (1979). Upon a showing of indigency, counsel is appointed for the defendant. Where a defendant asserts that a prior conviction is invalid because he was not informed of his right to appointed counsel, defendant must show prejudice by proving that he was indigent at the time of the prior conviction. Where, as here, a defendant makes no showing in his collateral challenge that he was, in fact, financially unable to retain counsel at the time of the prior proceeding, no prejudice is shown.
Affirmed.