People v. Asquini

577 N.W.2d 142, 227 Mich. App. 702

Opinions

Whttbeck, J.

The prosecution appeals by leave granted the circuit court’s order denying its application for leave to appeal a district court’s order. The district court’s order granted defendant’s motion to quash the charge of operating a motor vehicle while under the influence of intoxicating liquor or while having an unlawful blood alcohol level, third offense (OUlL/UBAL-3rd), MCL 257.625(1), (7)(d); MSA 9.2325(1), (7)(d). We reverse and remand to the district court for further proceedings consistent with this opinion.

Defendant Michael Asquini pleaded guilty of ouh/ubal in August 1990 and to oun/UBAL-2nd in October 1991. Before the preliminary examination of the charge of oun/UBAL-3rd in August 1996, defendant moved to quash the information on the ground that the prior two OUH/ubal convictions were constitutionally infirm and could not be used to enhance the severity of the present charge to a charge of 0UlL/UBAL-3rd. Defendant based his motion on a claim that he had not been represented by counsel, had not been properly advised of the right to counsel, and had not knowingly and intelligently waived the right to counsel The district court granted the motion to quash.

At the outset, we note that the issue before us is not defendant’s guilt or innocence with respect to the offenses, commonly known as drunk driving, with which he has been charged over the years. With respect to his two previous convictions, defendant pleaded guilty, apparently in accordance with plea bargaining agreements. With respect to the current charge of oun/UBAL-3rd, the issue, again, is not defendant’s guilt or innocence, but rather his collateral attack on his prior two convictions in connection with his attempt to prevent the alleged drunk driving in this case from being charged as om/UBAL-3rd. At the time of defendant’s alleged OUlL/UBAL-3rd offense in 1996, MCL 257.625(7)(d); MSA 9.2325(7)(d)¹ provided:

If the violation occurs within 10 years of 2 or more prior convictions, the person is guilty of a felony and shall be sentenced to imprisonment for not less than 1 year or more than 5 years or a fine of not less than $500.00 or more than $5,000.00, or both. A term of imprisonment imposed under this subdivision shall not be suspended.

The intent of the Legislature in enacting this provision could not have been clearer: it was to subject repeat OUIL/ubal offenders to enhanced punishment. Defendant seeks to avoid this enhanced punishment — in the event that he is found guilty or again pleads guilty of the offense — by collaterally attacking his two prior plea-based convictions on constitutional grounds.

As stated by the Michigan Supreme Court in People v Ingram, 439 Mich 288, 291; 484 NW2d 241 (1992), collateral attacks, as opposed to direct appeals, require consideration of finality and of administrative consequences. Indeed, as held by the Court:

Federal and state courts have consistently found that considerations of finality and administrative consequences must become part of the process with which we assure the achievement of proceedings that are consistent with the rudimentary demands of fair procedure. Such considerations have been found to be of particular significance in cases where courts have been confronted with the concerns surrounding the procedural issue of collateral attack of plea-based convictions. We agree and therefore hold that failure of a plea-taking court to adhere to applicable plea-taking requirements during the plea proceeding does not provide a defendant the opportunity to challenge by collateral attack. The validity of such a plea, where the defendant was represented by an attorney when entering the plea or when the defendant intelligently waived the right to counsel, including the right to court-appointed counsel if indigent, is unassailable. [Id. at 293-295 (emphasis supplied).]

Thus, the only issue before us is whether defendant intelligently waived the right to counsel in the course of his two prior plea-based convictions.²

I. DEFENDANT’S FIRST 0UH7UBAL CONVICTION

MCR 6.610(E) provides in pertinent part:

Before accepting a plea of guilty or no contest the court shall in all cases comply with this rule.

(2) The court shall inform the defendant of the right to the assistance of an attorney. 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 makes a determination that it may send the defendant to jail,

the court shall inform the defendant that if the defendant is 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. [Emphasis supplied.]

However, in People v Reichenbach, 224 Mich App 186, 188-189; 568 NW2d 383 (1997), a defendant who was charged with oun/UBAL-3rd had two prior convictions of ouil/ubal that had not resulted in incarceration. On the basis of the court rule now codified as MCR 6.610(E)(2), which was then codified as MCR 6.201(E)(2), the district court concluded that one of the prior convictions could not be used to form part of the basis for an ouii/UBAL-3rd conviction. The district court based its conclusion on the claim that the prior conviction had been obtained without representation by counsel and without proper advice of the right to counsel. The circuit court affirmed. This Court reversed.

This Court noted that the second emphasized portion of the court rule summarized case law existing at the time was promulgated, but that “subsequent developments have undercut the basis for the rule.” Reichenbach, supra at 190. This Court also noted that, in Scott v Illinois, 440 US 367; 99 S Ct 1158; 59 L Ed 2d 383 (1979), the United States Supreme Court held that the Sixth and Fourteenth Amendments of the United States Constitution require only that no indigent person be sentenced to a term of imprisonment without being afforded the right to the assistance of appointed counsel. This Court further noted that, in Nichols v United States, 511 US 738, 742-744; 114 S Ct 1921; 128 L Ed 2d 745 (1994), the United States Supreme Court held that a conviction obtained without counsel, and without any advice about the right to appointed counsel, that did not result in a term of imprisonment could be used for enhancement purposes with regard to a subsequent offense. Reich enbach, supra at 190-191.³ Further, this Court stated that the right to counsel under Const 1963, art 1, § 20 provides no broader right to counsel than the Sixth Amendment. Id. at 191. Thus, this Court concluded that the above-emphasized portion of MCR 6.610(E)(2) was invalid as a violation of the constitutional separation of powers to the extent that it would preclude use of a prior conviction to establish the offense of 0UiL/UBAL-3rd in a circumstance where use of the prior conviction was not constitutionally proscribed. Id. at 192-193. This Court held that a prior conviction that did not result in incarceration may be used for enhancement purposes, even where the prior conviction had been secured without the defendant having been represented by counsel or having been informed of a right to counsel. Id. at 189, 193.

After defendant’s first plea-based conviction, the district court sentenced him to one day in jail as well as two years’ probation. However, defendant had already spent one day in the county jail after being arrested, which was credited against his one-day sentence. As another condition of the sentence for the first conviction, defendant was required to participate in a work program for three days, or alternatively to spend three days in jail. Apparently, defendant elected to take part in the work program. While there may be room for debate whether this sentence involved any incarceration, we assume for purposes of our analysis, without deciding as a point of law, that this sentence included a component of incarceration and, thus, that defendant was entitled to counsel in connection with the first ouil charge.

At the plea hearing regarding the first ouil charge, the following colloquy occurred with respect to the right to counsel:

The Court: Mr. Asquini, you have met with the prosecutor and you’ve worked out a plea agreement whereby if you plead guilty to Operating Under the Influence of Liquor he’s asking me to dismiss the civil infraction of Preliminary Breath Test Refusal. Is that your understanding of the complete plea agreement?

Defendant Asquini: Yes, it is.

The Court: How do you want to plead to Operating Under the Influence of Liquor?

Defendant Asquini: I’d like to plead guilty.

The Court: Do you understand that by pleading guilty you’re waiving the right to a trial by a judge or jury?

Defendant Asquini: Yes, I do.

The Court: You’re waiving the right to have an attorney appointed for you if you can’t afford one?

Defendant Asquini: Yes, I do.

* * *

The Court: . . . Based on the statements made by the defendant I’ll accept the guilty plea to Operating Under the Influence of Liquor; refer Mr. Asquini to the Probation Department for Screening and Assessment and grant the prosecutor’s motion to dismiss the civil infraction and they’ll make your appointment for you out at the counter. [Emphasis supplied.]

There was no further questioning or explanation by the district court directly concerning the right to counsel.

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.

Defendant asserts that the district court presiding over the first ouil/ubal plea failed to inform him explicitly of his right to counsel and did not expressly inform him that he had the right to retain his own counsel to represent him. The district court in the matter before us accepted defendant’s position. However, we conclude that defendant intelligently waived his right to counsel.

Reading the district court’s question whether defendant was waiving his right to have counsel appointed for him if he could not afford one in connection with the prior question whether defendant understood that he was waiving the right to a trial, it is clear that the district court was informing defendant that he had the right to appointed counsel if he was indigent and asking him if he understood that right. The district court’s question tied the right to appointment of counsel to defendant’s ability to afford counsel. It is therefore plain that this question effectively informed defendant that he had a right to retain his own counsel to represent him in further criminal proceedings. For defendant to have understood otherwise, he would have had to have taken the district court as expressing that counsel would be appointed for him if he could not afford counsel, but that if he could afford counsel, he would have no right to counsel whatsoever, either by court appointment or his own retention of counsel. No reasonably intelligent defendant would believe such an absurd possibility.

In this regard, we note that the record of the sentencing hearing held only one month after the plea hearing reflects that defendant was, at the time, a college senior majoring in economics. In this situation, we are confident beyond a reasonable doubt that the district court sufficiently apprised defendant that he had the right to the assistance of counsel, including the right to retain his own counsel, in further criminal proceedings and that defendant intelligently waived that right.⁴ Thus, the district court in the case before us erred in accepting defendant’s collateral attack on his first ouil/ubal conviction.

We recognize that in People v Burian, 32 Mich App 220, 221-222; 188 NW2d 652 (1971), this Court concluded that the trial court’s question at a plea proceeding — “Do you waive your right to a lawyer?”— was inadequate to apprise the defendant that he had a right to counsel. We find Burlan to be distinguishable from this case because, as shown above, the district court in connection with defendant’s guilty plea to the first ouil/ubal conviction informed defendant of the specific nature of the right to counsel: that he had a right to the appointment of counsel if indigent and, by obvious implication, that he had a right to retain counsel.

We distinguish this case from People v Gilroy, 37 Mich App 275; 194 NW2d 489 (1971). First, in Gilroy, the only advice regarding the right to counsel that the circuit court provided to the defendant in connection with the entry of a guilty plea was the lone question, “Do you understand that you have a right to have a lawyer if you want one?” Id. at 277. This Court concluded that this failed to inform the defendant of his right to court-appointed counsel. Id. In Gilroy, a reasonably intelligent defendant could well have understood the circuit court’s question as indicating only that the defendant had the right to retain counsel to represent him in court proceedings, not that he had a right to have the court appoint counsel for him. It is certainly not obvious that one’s right to retain counsel would include the right to have court-appointed counsel if one is indigent. In contrast, here the district court expressly informed defendant of his right to have an attorney appointed for him if he was indi gent. Under such circumstances, it would be clear to any reasonably intelligent defendant that if there is a right to the appointment of counsel in connection with a proceeding if that defendant is indigent, there is also a right to retain private counsel to provide representation.

Second, Gilroy makes explicit reference to Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963). Gideon dealt with the right of an indigent defendant to court-appointed counsel, not with when an indigent defendant is constitutionally entitled to be informed of the right to that counsel. Thus, Gilroy is not controlling with regard to the constitutional issue in this case.

Third, and more narrowly, the Court in Gilroy stated the defendant’s claim as follows: “Defendant claims that the trial court, prior to accepting his plea, did not properly advise him as to his right to court-appointed counsel in the event of his indigency, pursuant to Court Rule No. 35A (1945).” Gilroy, supra at 276 (emphasis supplied). Here, there is no question whatever that the district court advised defendant of his right to court-appointed counsel “prior to accepting his plea,” although after defendant initially expressed his intent to plead guilty. This is in exact accordance with the current court rule, MCR 6.610(E), which provides in pertinent part: “Before accepting a plea of guilty or no contest the court shall in all cases comply with this rule.”⁵ Thus, even if Gilroy is applicable, it does not require us to sustain defendant’s collateral attack.⁶

H. DEFENDANT’S SECOND OUIL/UBAL CONVICTION

Defendant’s plea of guilty of ouiL/UBAL-2nd occurred before the same district judge who presided over the first ouil/ubal plea. The key facts surrounding the second proceeding are strikingly similar to those of the first plea. The district court again sentenced defendant to two years’ probation. However, the district court also imposed a sentence of thirty days in jail to be served at the end of the probation, but indicated that the jail time would likely be suspended if defendant successfully completed probation and received a good recommendation from the probation department. The district court also ordered defendant to participate in a work program for ten days, or to spend ten days in jail. It is not clear from the record whether defendant ever served any time in jail based on this sentence. In any event, we again assume, without deciding, that the sentence involved incarceration for purposes of the constitutional right to counsel and, thus, that defendant had a right to counsel in connection with the OUiL/UBALr2nd plea.⁷

In substantively the same fashion as at the first plea proceeding, the following colloquy occurred during defendant’s plea of guilty of ouiL/UBAL-2nd:

The Court: Michael Asquini. (Pause) Looks like you want to plead guilty to ouil 2nd. Is that right?

Defendant Asquini: Yes.

* * *

The Court: Do you understand if I accept your guilty plea you’ve given up the right to a trial by a judge or a jury?

Defendant Asquini: Yes.

The Court: You’ve given up the right to have an attorney appointed for you if you can’t afford one?

Defendant Asquini: Yes.

The Court: All right. Based on the statements made by the defendant I’ll accept the guilty plea, refer him to the Probation Department for screening and assessment. [Emphasis supplied.]

For the same reasons that we conclude that the district court in the matter before us erred in accepting defendant’s collateral attack to his first plea-based ouil/ubal conviction, we conclude that the district court erred in accepting the collateral attack on the OUiL/UBAL-2nd conviction. Because defendant intelli gently waived the right to counsel in entering the ouiL/UBAL-2nd guilty plea, that plea is not subject to collateral attack. Ingram, supra at 294-295. In any event, the district court complied with MCR 6.610(E) by advising defendant of his right to a court-appointed attorney before accepting his plea of guilty. Both of defendant’s prior ouil/ubal convictions may be used by the prosecution as part of its basis for the instant ouiL/UBAL-3rd charge.

Reversed and remanded to the district court for further proceedings consistent with this opinion. We do not retain jurisdiction.

Fitzgerald, P.J., concurred.

Footnotes

1

Under the current version of MCL 257.625(7)(d); MSA 9.2325(7)(d), the elements of 0imAiBAL-3rd are the same, but the sentencing options for a conviction of that offense are different:

If the violation occurs within 10 years of 2 or more prior convictions, the person is guilty of a felony and shall be sentenced to pay a fine of not less than $500.00 or more than $5,000.00 and to either of the following:

(i) Imprisonment under the jurisdiction of the department of corrections for not less than 1 year or more than 5 years.

(ii) Probation with imprisonment in the county jail for not less than 30 days or more than 1 year. Not less than 48 hours of the imprisonment imposed under this subparagraph shall be served consecutively.

MCL 257.625(7)(e); MSA 9.2325(7)(e) provides that a term of imprisonment imposed for ouii/UBAir3rd shall not be suspended.

2

The dissent, in footnote 1, draws a distinction between the “right to an attorney at the plea-taking process” and the “right to have a court-appointed attorney at trial.” Post at 717-718. Neither party raised or argued this distinction on appeal. In addition, MCR 6.610(E) clearly deals with situations in which a court accepts a plea of guilty or no contest. The acceptance of such a plea can take place during a pretrial proceeding, as was done here, or dining the trial. We therefore believe the distinction drawn by the dissent has no relevance to the issue we decide here. In any event, we also note that defendant separately stated that he understood that by pleading guilty he waived his right to a trial by a judge or a jury, as the following interchange shows:

The Court: Do you understand that by pleading guilty you’re waiving the right to a trial by a judge or jury?

Defendant Asquini: Yes, I do.

3

In Nichols, the United States Supreme Court overruled its prior holding in Baldasar v Illinois, 446 US 222; 100 S Ct 1585; 64 L Ed 2d 169 (1980), that a conviction could not be used for enhancement purposes unless the defendant had been represented by counsel or had been properly advised of and waived the right to appointment of counsel if indigent. Reichenbach, supra at 190-191. It is the former rule in Baldosar that was effectively written into the Michigan Court Rules with the promulgation of the pertinent sentence of MCR 6.610(E)(2).

4

We do regard the district court’s manner of informing defendant of his right to counsel as less than ideal. We need not express an opinion regarding whether the district court’s questioning would have provided the requisite information to allow a defendant of less than average intellectual ability to waive intelligently the right to counsel.

We also note that defendant apparently signed an advice-of-rights form on June 26, 1990, that advised him in connection with the first ouh/ubal charge of his right to the assistance of an attorney and of situations in which he would be entitled to court-appointed counsel. In light of our above analysis, we need not consider whether this advice-of-rights form may be considered to have informed defendant of his right to counsel. MCR 6.610(D)(3) allows waiver of an attorney by “a writing that is made a part of the file or orally on the record.” We observe that the advice-of-rights form could have been marked as an exhibit and made a part of the record, thus resolving any possible ambiguity. We recommend such a procedure to the district and circuit courts.

5

In any event, we reiterate that a mere failure to comply with plea-taking requirements during a plea proceeding is not a proper ground for a collateral attack on a conviction. Ingram, supra at 294-295.

6

People v Gonzales, 179 Mich App 477; 446 NW2d 296 (1989), does not compel a contrary result. In Gonzales, the Court cited People v Schneider, 132 Mich App 214, 218; 347 NW2d 21 (1984), for the proposition that not all uncounseled pleas of guilty are infirm. Gonzales, supra at 480. The Court went on to say:

We are of the opinion that defendant’s statement that he understood that he waived his trial rights, immediately after being told of his right to counsel, is a valid waiver of his right to counsel. While defendant did not use the magic words, “I waive my right to counsel,” he nonetheless unequivocally responded affirmatively to the proposition that he was giving up his rights, immediately after stating that he understood he had a right to counsel. [Id. at 482.]

Here, while defendant may not have used the magic words “I waive my right to retain counsel,” he nonetheless responded affirmatively to the proposition that he was giving up his right to courtrappointed counsel. Under the circumstances of this case, we find this waiver in connection with the totality of the plea proceeding to be constitutionally sufficient to waive defendant’s right to retain private counsel.

7

As with the first plea, defendant signed an advice-of-rights form some weeks before the plea proceeding. Again, we do not consider this fact in our analysis.