State of Michigan v JEFFREY LYNN CAMPBELL
No. 205118
Michigan Court of Appeals
January 4, 2000, Decided
Unpublished
Prior case history: Ogemaw Circuit Court. LC No. 96-001114 FH.
Before: Griffin, P.J., and Wilder and R. J. Danhof *, JJ. Robert J. Danhof, J., dissenting.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
OPINION
PER CURIAM.
Defendant appeals by right from his jury trial convictions of operating a motor vehicle under the influence of intoxicating liquor or while having an unlawful blood alcohol level (OUIL/UBAL), MCL 257.625(1); MSA 9.2325(1); operating a motor vehicle with a suspended or revoked license, second offense, MCL 257.904(1)(b); MSA 9.2604(1)(b); and furnishing false identification information to a peace officer while being detained for a motor vehicle violation, MCL 257.324(1)(h); MSA 9.2024(1)(h). The OUIL/UBAL conviction was defendant's third in ten years, making it a felony under MCL 257.625(7)(d); MSA 9.2325(7)(d). Defendant was sentenced to concurrent terms of eighteen months to five years for the OUIL/UBAL conviction, one year for the suspended license conviction, and ninety days for the false information conviction. We affirm.
In the trial court and on appeal, defendant attempts to collaterally attack a 1993 plea-based OUIL conviction, 1 arguing that it cannot be used to elevate his current OUIL/UBAL conviction to a felony. Defendant alleges that his 1993 conviction was obtained without an intelligent waiver of his right to appointed counsel. At the conclusion of a Tucker 2 hearing, the trial court disagreed, finding that although "one of the pleas was particularly sloppy and the judge was particularly casual in the way he talked," under the totality of circumstances defendant intelligently waived his right to court-appointed counsel. In addition to defendant's oral statements in court, the 1993 conviction file contains a written advice-of-rights form which was referenced as part of defendant's plea.
1 In his motion to remand and brief on appeal, defendant incorrectly states that his 1993 guilty plea was entered on March 10, 1993. The record indicates that defendant's prior guilty pleas were entered on April 21, 1993, and December 2, 1994.
2 US v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).
The written advice-of-rights form executed by defendant on April 21, 1993, provides in pertinent part:
You have the right to an attorney appointed at public expense if you are indigent (without money to hire an attorney) and if
a. the offense charged is punishable by over 92 days in jail,
b. the offense charged requires a minimum jail sentence, or
c. the court determines that it may send you to jail.
In People v Ingram, 439 Mich 288, 300; 484 NW2d 241 (1992), our Supreme Court stated "the concerns involved in collateral attacks [of guilty plea procedures] are quite different than those on direct appeal and implicate considerations of finality and administrative consequences." Based on such considerations and the distinctions between a direct appeal and a collateral attack, the court held "that failure of a plea-taking court to adhere to the applicable plea-taking requirements during the plea proceeding does not provide a defendant the opportunity to challenge by collateral attack." [Id. at 294-295.] See also People v Ward, 459 Mich 602; 594 NW2d 47 (1999). The only exception to the bar against collateral attacks is if the defendant did not "intelligently waive the right to counsel, including the right to court-appointed counsel if indigent." [ Ingram, supra at 295.]
In the present case, defendant argues the alleged invalidity of his 1993 plea as if this were a direct appeal rather than a collateral attack. However, assuming arguendo that deficiencies occurred in the taking of defendant's 1993 plea, see, generally, MCR 6.610(E)(2), the issue in this collateral attack is not whether a technical defect occurred in the plea-taking process but whether the record, on the whole, establishes that defendant "intelligently waived the right to counsel, including the right to court-appointed counsel." Ingram, supra .
As this Court stated in People v Asquini, 227 Mich App 702, 711; 577 NW2d 142 (1998):
Defendant's attack on the validity of his prior OUIL/UBAL conviction constitutes a collateral attack because it is a challenge to that conviction that is not made in a direct appeal from those convictions. People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995). Accordingly, and as stated above, the only real question in connection with defendant's guilty plea to the first OUIL/UBAL charge is whether defendant intelligently waived the right to counsel. Ingram, supra at 294-295. Whether the district court complied with all requirements of MCR 6.610 in taking defendant's guilty plea is immaterial for purposes of this collateral attack. [Emphasis added.]
On this record, particularly in view of the written advice-of-rights form executed by defendant, 3 we hold that the trial court did not clearly err in finding that defendant was advised of his right to court-appointed counsel and intelligently waived his right. For this reason, we conclude that the trial court did not err in elevating defendant's present OUIL/UBAL conviction to a felony.
3 See also People v Asquini, supra at 712, n 4.
Affirmed.
/s/ Richard Allen Griffin
/s/ Kurtis T. Wilder
DISSENT BY: Robert J. Danhof
DISSENT
R. J. DANHOF, J. (dissenting).
I respectfully dissent. Defendant's 1993 plea-based OUIL conviction should not have been used to elevate his current OUIL/UBAL offense to a felony because defendant was not validly informed at his 1993 plea of his constitutional right to appointed counsel if indigent.
Michigan jurisprudence has accorded the right to counsel preeminent status vis-a-vis other constitutional rights implicated in guilty plea proceedings. Justice Brickley recognized this fact in his concurring opinion in People v Crawford, 417 Mich 607, 615; 339 NW2d 630 (1983):
Denial of the right to counsel mandated by [Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963)] is a deprivation of rights altogether different from the issues before us here. The denial of the right to counsel impugns the integrity of the conviction, raising doubts about the guilt of the accused. It is for that reason, and that reason only, that the use of a counselless conviction is forbidden in collateral proceedings notwithstanding that the defendant did not raise the issue on direct review. The requirement of a record waiver of the right to remain silent, to cross-examine witnesses against him, and to be tried by a jury which is required by [Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969) and People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972)], while undoubtedly important, pales beside the right to counsel.
In People v Ingram, 439 Mich 288, 296; 484 NW2d 241 (1992), the Court adopted Justice Brickley's analysis, holding that a collateral attack on a prior plea-based conviction is permissible where the defendant alleges that he did not intelligently waive the right to counsel, including the right to appointed counsel if indigent.
The preeminent status of the right to counsel is clearly reflected in the procedure required by the Michigan Court Rules for articulation of that right at plea-taking. MCR 6.610(E) states, "Before accepting a plea of guilty . . . the court shall in all cases comply with this rule." MCR 6.610(E)(2), now as in 1993, provides that if the criteria set forth in MCR 6.610(E)(2)(a) through (c) are met, the court, before accepting a guilty plea,
shall inform the defendant that if . . . indigent he or she has the right to an appointed attorney. A subsequent charge or sentence may not be enhanced because of this conviction unless a defendant is represented by an attorney or he or she waives the right to an appointed attorney.
MCR 6.610(E)(2) thus requires that the trial court inform an indigent defendant, on the record at plea-taking, of his right to appointed counsel. It is undisputed that the court failed to satisfy that requirement at the 1993 plea. At that time the court asked defendant, "Specifically, you're waiving your right to have an attorney here, is that correct?" This was inadequate to inform defendant that he had the right to the appointment of counsel if indigent, People v Asquini, 227 Mich App 702, 713; 577 NW2d 142 (1998); People v Burian, 32 Mich App 220, 221-222; 188 NW2d 652 (1971), and MCR 6.610(E) was violated.
The majority affirms defendant's conviction based on the fact that before his plea, and off the record, he signed an advice-of-rights form informing him, inter alia, of his right to an appointed attorney if indigent. In People v Asquini, supra at 712 n 4, this Court specifically declined to decide whether an advice-of-rights form "may be considered to have informed defendant of his right to counsel." I believe that this form is inadequate to satisfy the mandate of MCR 6.610(E)(2). MCR 6.610(E)(4) provides that a defendant may be informed of certain trial rights listed in MCR 6.610(E)(3)(b) by means of a writing made part of the file or referred to on the record. Significantly, however, MCR 6.610(E) nowhere provides that the MCR 6.610(E)(2) requirement that the court inform a defendant of his right to court-appointed counsel if indigent may be satisfied by a writing. This distinction is consistent with the preeminent status of the constitutional right to counsel and assures that a defendant will be informed of that important right only in the optimum manner provided by MCR 6.610(E)(2). To hold otherwise is to circumvent the clear language of that rule.
Where, as here, "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." People v Kanouse (On Rehearing), 134 Mich App 401, 403; 350 NW2d 760 (1984), modified 421 Mich 855 (1985). Defendant has not presented this Court with sufficient evidence that he was indigent at the time of his 1993 conviction. I would therefore affirm defendant's convictions and sentences for operating a vehicle with a suspended or revoked license and furnishing false information to a peace officer, but remand to the trial court for a hearing to determine whether defendant was indigent at the time of his 1993 plea to OUIL. If the court finds that he was indigent, his present felony conviction and sentence should be vacated, and he should be resentenced accordingly.
/s/ Robert J. Danhof