People v. Carpentier

521 N.W.2d 195, 446 Mich. 19

• Court: Michigan Supreme Court
• Decided: August 2, 1994
• Docket: 97268, (Calendar No. 10)
• Status: Published

Opinions

Brickley, J.

This case asks us to determine, in the context of a collateral challenge of juvenile adjudications used for purposes of subsequent recidivist sentencing and where the relevant juvenile records have been expunged, which party bears the initial burden of proving that the underlying convictions were procured without counsel or a proper waiver of counsel. Because we conclude that the alleged error is a jurisdictional defect not subject to the prerequisites of MCR 6.508(D)(3), judicial review of defendant’s collateral challenge is appropriate and the circuit court decision dismissing for lack of "good cause” is reversed. Similarly, while we affirm the reasoning of the Court of Appeals we do not remand because, applying the mandates of People v Moore, 391 Mich 426; 216 NW2d 770 (1974), defendant has failed to meet his initial burden of proof that a constitutional violation occurred.

Specifically, we hold that Moore, when properly interpreted and extended to the facts of this case, prohibits the extraordinary relief sought by defendant. Because defendant presented neither (1) prima facie proof that his prior juvenile adjudications were procured in violation of Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), nor (2) evidence that his request for such proof was refused by the sentencing court, or that the sentencing court failed to reply to his request, he has failed to satisfy his initial burden of showing that the circuit court erred by relying on prior juvenile adjudications in which he was allegedly not represented by counsel for purposes of sentencing.

i

In 1982, defendant Louis E. Carpentier, Jr., armed with a revolver, robbed a bank of over $5,000 during business hours. In 1983, a jury convicted him of armed robbery,¹ and the court sentenced him to twenty-five to fifty years imprisonment.

Defendant appealed the length of his sentence as excessive under People v Coles, 417 Mich 523; 339 NW2d 440 (1983), rev’d People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and the Court of Appeals remanded the case for an articulation of the reasons for the sentence. After remand, the Court affirmed the sentence, holding it justified under Coles.²

This Court denied leave to appeal.³

In November 1992, defendant again challenged the length of his sentence by filing for relief from judgment under MCR 6.508. Defendant alleged that he should be resentenced because the trial court considered juvenile adjudications that were constitutionally infirm to determine his sentence, in that he was not represented by counsel and did not waive the right to representation at the juvenile adjudications. At the sentencing hearing, defendant was twenty-one years old, and his prior contacts with the juvenile system were noted on the presentence hearing report.⁴ The defendant verified the accuracy of his juvenile history, and he did not object to the use of those adjudications. While the transcripts of those proceedings existed at the time of his sentencing and during his initial appeal, they were physically destroyed pursuant to administrative policy before the filing of defendant’s MCR 6.508 motion.

Finding that defendant had failed to establish "good cause” as required by MCR 6.508(D)(3), the trial court denied his motion. The Court of Appeals, however, concluded that defendant’s Sixth Amendment claim "represents, if established, a jurisdictional defect . . . and thus the 'good cause’ requirement of MCR 6.508(D)(3)(a) is not, by its own terms, applicable.” Accordingly, the Court of Appeals ordered the case remanded to the trial court for consideration of defendant’s collateral challenge.

This Court granted leave to appeal on February 3, 1994. 444 Mich 949.

II

Defendant’s collateral challenge is brought pursuant to MCR 6.508(D)(3), which provides, in pertinent part:

The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion

(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal or in a prior motion, and

(b) actual prejudice from the alleged irregularities that support the claim for relief. [Emphasis added.]

It is clear that, by its own terms, the "good cause” and "actual prejudice” prerequisites of MCR 6.508(D)(3) need not be satisfied where a defendant properly alleges a jurisdictional defect in a prior proceeding that resulted in conviction and sentence. It is also apparent that MCR 6.508— which articulates the procedures for obtaining postappeal relief — permits jurisdictionally based challenges to be raised after a criminal appeal has been exhausted. Certainly, if a criminal defendant may obtain postconviction review by establishing "good cause” and "actual prejudice” under MCR 6.508(D)(3), that defendant may alternately procure review by properly alleging the jurisdictional defect contemplated and exempted from the requirements of this rule. See also People v Johnson, 396 Mich 424, 442; 240 NW2d 729 (1976) ("Defendant may always challenge whether the state had a right to bring the prosecution in the first place”).

In this case, the Court of Appeals specifically found that defendant’s allegation of a Gideon violation at prior juvenile proceedings established a jurisdictional defect and, accordingly, remanded to the circuit court for consideration of defendant’s claim. The Court of Appeals reasoning has recently been affirmed by the United States Supreme Court in Custis v United States, 511 US _; 114 S Ct 1732; 128 L Ed 2d 517 (1994). In Custis, the Court held that, as a matter of federal law, a criminal defendant possesses the constitutional right to collaterally challenge a prior conviction that is used to enhance a sentence when that defendant alleges that the prior conviction was procured in violation of the Sixth Amendment right to counsel. Reviewing its history of permitting habeas corpus collateral challenges based on alleged right to counsel violations, the Court explained that it had long "attributed a jurisdictional significance to the failure to appoint counsel,” and reiterated that this alleged Sixth Amendment violation constituted such a jurisdictional defect:

"If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty[.] . . . The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.” [Id., 114 S Ct 1737 (emphasis added) (quoting Johnson v Zerbst, 304 US 458, 468; 58 S Ct 1019; 82 L Ed 1461 (1938).]

Notably, while affording "jurisprudential significanee” to alleged Gideon claims, the Court expressly limited the availability of collateral challenges to these particular Sixth Amendment violations and refused to extend the opportunity for relief to other alleged constitutionál infirmities. Custis, 114 S Ct 1734 ("We hold that a defendant has no such right [with the sole exception of convictions obtained in violation of the right to counsel] to collaterally attack prior convictions”). This limitation was based, in part, on the "historical basis in [United States Supreme Court] jurisprudence of collateral attacks for treating the right to have counsel appointed as unique . . . .” Id., 114 S Ct 1737-1738. The Court further emphasized that such a limitation was compelled by the ease of administration that accompanied such exceptional claims, and by the federal court’s interest in promoting the finality of judgments for other non-Gideon challenges. Id., 114 S Ct 1739.

We find the reasoning of Custis both persuasive and consistent with Michigan common law. Like the federal courts, both the Michigan judiciary singularly, and the citizenry whosé collective rights and protections it is obligated to protect, have a compelling interest in championing the finality of criminal judgments. However, and again like the federal courts, Michigan has recognized the unique import of a defendant’s constitutional right to counsel. See, e.g., People v Ingram, 439 Mich 288; 484 NW2d 241 (1992); People v Crawford, 417 Mich 607, 614; 339 NW2d 630 (1983) (Brickley, J., concurring). The exceptional nature of this constitutional protection counsels for similarly atypical protection. For'this reason, we align ourselves with the rationale and result of Custis and hold that an alleged Gideon violation constitutes a jurisdictional defect that may be collaterally challenged by a convicted criminal defendant.⁵

Because defendant’s collateral challenge raises a jurisdictional defect not subject to the "good cause” or "actual prejudice” demands of MCR 6.508(D)(3), the circuit court erred in dismissing defendant’s claim for lack of good cause. Relatedly, the Court of Appeals reasoning that defendant’s claim constituted a jurisdictional defect is affirmed as accurate.

hi

Unlike the Court of Appeals, however, we do not remand this action because, on the basis of the well-established procedure set out in Moore for reviewing collateral challenges alleging Gideon violations, defendant is incapable of proving that his prior convictions were constitutionally infirm.

A

Twenty years ago, this Court held that a defendant who collaterally challenges an antecedent conviction allegedly procured in violation of Gideon, supra, bears the initial burden of establishing that the conviction was obtained without counsel or without a proper waiver of counsel. Moore, supra. In Moore, we explained that a defendant could satisfy this initial burden by either of two approaches:

1) by presenting "prima facie proof that a previous conviction was violative of Gideon, such as a docket entry showing the absence of counsel or a transcript evidencing the same,” or

2) by presenting evidence that the defendant requested such records from the sentencing . court and that the court either (a) failed to reply to the request, or (b) refused to furnish copies of the records, within a reasonable time. Id. at 440-441.

Once either approach was satisfied, we held that a defendant would have met his initial burden of proof and a Tucker6 hearing would be convened at which "the burden [would] then be upon the prosecutor to establish the constitutional validity of the prior conviction.” Id. at 441.

Today we reaffirm that Moore articulates the proper procedures to be followed where a defendant collaterally challenges a prior conviction for lack of counsel or a proper waiver of counsel. In so affirming, however, we note that in the years since Moore, various interpretations of its prerequisites for Tucker relief have evolved to erode its fundamental premise that collateral challenges implicate extraordinary remedies and, accordingly, that the initial burden of proof must in fact rest with a defendant.⁷ Because we believe that our decision in Moore has been frequently misunderstood and misapplied by the lower courts, we now take this opportunity to review and reaffirm its mandates.

B

Our Moore decision is straightforward: to prevail upon a request for Tucker relief, defendant must present prima facie proof that a prior conviction violated Gideon, or present evidence that the sentencing court either "failed to reply” to a request for or "refused to furnish” requested copies of records and documents. Putting aside the first approach for a moment, it must be acknowledged that this Court was very specific in defining the second: a sentencing court must "fail[] to reply,” or "refuse[ ] to furnish,” requested evidence. Notably, the language of these prerequisites is markedly different from the interpretation articulated in People v Triplett (After Remand), 91 Mich App 82; 283 NW2d 658 (1979), rev’d 407 Mich 510; 287 NW2d 165 (1980), People v Schram, 98 Mich App 292; 296 NW2d 840 (1980), and People v Evans, 115 Mich App 711; 321 NW2d 686 (1982)—to wit, that a defendant must simply "have not received” requested records. Insofar as these decisions shift the focus of judicial inquiry away from the actions or inactions of a sentencing court, and instead examine whether a defendant actually receives requested records, they constitute an improper interpretation of Moore and, for the reasons stated herein, are overruled as overly broad interpretations of the case.

Indeed, we take this opportunity to explain that Mooré is in part directed at those situations in which a sentencing court affirmatively and intentionally acts to deny a defendant access to requested trial records. For example, where a sentencing court ignores a proper request for records, that court has "failed to reply” within the meaning of Moore. Alternatively, where a court refuses to forward records in its possession or control, that court has "refused to furnish” under Moore. Accordingly, to interpret Moore as only requiring a defendant to have requested but not received trial records opens the door to collateral challenges in a variety of situations not intended by the strict and narrow rule of Moore.

Nowhere are the implications of this expansive interpretation more conspicuous than in the instant case. The defendant here requested copies of his juvenile record so as to ascertain whether he had been afforded counsel, or had waived counsel, at prior juvenile proceedings. Defendant received a letter from the deputy register of the probate court explaining that his records had been properly expunged on his thirtieth birthday.⁸ It is clear that, pursuant to Moore, the probate court did not "fail[] to reply” to defendant’s request because a letter was sent detailing the unavailability of defendant’s records. Similarly, it is clear that the probate court did nót "refuse[] to furnish” copies of the records because one cannot refuse to furnish that which is not first possessed. After expungement, the probate court no longer possessed defendant’s records. Notably, however, had we held in Moore that defendant’s initial burden of proof was merely satisfied with a request and a failure to receive records, defendant undoubtedly would have met his initial burden of proof.⁹

We hold, therefore, that defendant has not met his burden of proof under Moore insofar as he has not established that the sentencing court either "failed to reply” or "refused to furnish” the records that were requested.

Further, defendant has not otherwise presented prima facie proof that his prior conviction was violative of Gideon. Defendant’s proifered evidence in support of a Tucker hearing consisted of the aforementioned letter from the probate court and two affidavits from attorneys claiming knowledge of procedures utilized in the probate court. As noted above, however, this letter is simply a reply from the court indicating that defendant’s records have been expunged; it says absolutely nothing about whether defendant had, or waived, counsel at his juvenile proceeding. Accordingly, it is not relevant to the Gideon violation alleged here. Similarly, the two affidavits only state general allegations concerning probate court procedures and do not address defendant’s Gideon -claim specifically. Accordingly, while somewhat relevant, these affidavits also do not establish prima facie proof of a right to counsel violation.

IV

It should be acknowledged that whereas Moore involved a scenario in which a trial record was available, in the instant case defendant’s record has been expunged and is no longer obtainable either by the defendant or the prosecutor. In fact, this lack of a record is the only significant distinction between the two cases. Accordingly, our view of Moore admittedly constitutes an extension of its mandates to those scenarios in which a record has been properly expunged. For the reasons stated below, however, we do not believe that this factual distinction counsels against extending Moore in this manner.

As previously noted, this state has a legitimate interest in promoting the finality of judgments. The United States Supreme Court recently recognized in Parke v Raley, 506 US _, _; 113 S Ct 517, 523; 121 L Ed 2d 391 (1992), that there is an important distinction, for purposes of presumptions and burdens, between direct review and collateral attack. In Parke, the Sixth Circuit Court of Appeals concluded — in the context of Boykin¹⁰ rights—that assigning the burden of proof to a defendant on the basis of a "bare record of conviction,” and absent the availability of a trial record, was constitutionally infirm. Reversing, the Supreme Court reasoned that while presuming invalidity from a silent or unavailable record may be appropriate on direct review, such a presumption is less compelling in a collateral challenge where the countervailing presumption of regularity is entitled to greater deference:

We see no tension between [assigning the burden of proof to the defendant] and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in 'our jurisprudence: the "presumption of regularity” that attaches to ñnal judgments, even when the question is waiver of constitutional rights. [Parke, 113 S Ct 523. Emphasis added.]

This presumption of regularity is well recognized in Michigan law as well, see Dow v Scully, 376 Mich 84; 135 NW2d 360 (1965); Fuller v Vanwagoner, 49 F Supp 281 (ED Mich, 1942), and its importance for assuring the finality of judgments, and conserving scarce judicial resources, cannot seriously be questioned. Therefore, while the presumption of invalidity may enjoy a very obvious and proper place in direct judicial review — simply to insure proper sentencing in the first instance— the presumption must be balanced against this state’s legitimate need to preserve scarce judicial resources with some finality of judgment. Because collateral attacks threaten such finality, it is appropriate to impose the burden of proof on that party making the challenge — in this case, the defendant.

Furthermore, it seems incongruous to demand that courts expunge juvenile records in certain instances, and then to permit criminal defendants the advantageoús use of this requirement to circumvent enhanced sentences. The absurdity of this position is underscored by the fact that expungement has been ordered for the beneñt of the defendant. We can see little reason why defendants should be permitted to misuse a policy, otherwise designed for their benefit, to avoid appropriate criminal sanctions.

v

In summary, where a juvenile record has been properly expunged, a defendant must bear the initial burden of establishing that prior juvenile adjudications were procured without counsel or without the proper waiver of counsel. This approach recognizes that expungement is a procedure benefiting the defendant and that collateral attacks seek an extraordinary judicial remedy, and adheres to the state’s well-recognized interest in insuring the finality of judgments. Properly interpreted, Moore provides an appropriate and workable framework within which a defendant may meet this initial burden.

For these reasons, and while the reasoning of the Court of Appeals is affirmed, we reverse its order remanding to the circuit court, and deny defendant’s request for relief from judgment.

Cavanagh, C.J., and Levin and Mallett, JJ., concurred with Brickley, J.

1 MCL 750.529; MSA 28.797.

2 Unpublished opinion per curiam of the Court of Appeals, decided November 21, 1985 (Docket No. 73945). The Court reasoned:

The judge noted that the offense committed was a serious one, punishable by up to life imprisonment. The robbery took place at a bank during business hours, and defendant was armed with a gun. Thus, several persons could have been seriously injured. The judge further noted that defendant, aged 20 at the time of the present offense, is a severe drug addict. He has a juvenile record which resulted in either probation or commitment for being a runaway, larceny in a building, breaking and entering a dwelling, unauthorized driving away of an automobile, and larceny from a person. As an adult, a negotiated plea of guilty to attempted larceny in a building resulted in a one-year sentence. Defendant showed no remorse regarding the instant offense. Defendant was discharged from the Army 13 months after he enlisted because of his inability to adapt to military life. According to defendant’s presentence report, he had been unable to sustain any consistent employment and lacks competitive job skills.

3 Unpublished order of the Supreme Court, entered June 3, 1986 (Docket No. 77731).

4 The presentence report listed defendant’s juvenile history:

02-15-78 Petition filed, Runaway.

02-15-78 Petition filed for Larceny in a Building. This offense involves Louis stealing a pocket warmer from Woolco.

02-16-78 Transferred to the Juvenile Home and it was noted that his mother refused to pick him up after being contacted by authorities.

02-17-78 Psychological examination administered by psychologist Carl Poit. The report pointed out Mr. Carpentier’s chaotic home situation and indicated he would not abide by the house rules. It was also mentioned that Mr. Carpentier liked to be a very independent individual despite being unable to adequately care for himself. He was administered the Weschler Intelligence Test with a full scale i.q. of 88, his verbal i.q. 87 and his performance 91. It was pointed out that Mr. Carpentier was functioning in both Math and English at the 7.7 level.

05- 31-78 Breaking and Entering, Runaway. This offense involves Louis breaking into a home located at 1233 N. Saginaw Street, Flint, Michigan.

06- 19-78 Six months probation and was made a Temporary Ward of the Court.

07- 13-78 Petition filed for Runaway, udaa and Larceny from a Person.

07- 27-78 Committed to the Department of Social Services.

08- 06-78 Transferred to the Park Place Halfway House in Kalamazoo, Michigan.

11-31-78 Transferred from Park Place to his mother’s home.

01- 23-80 Youth parole review board felt that Louis had not responded to the services that he had been exposed to and recommended discharge.

02- 01-80 Discharged from juvenile probation.

5 We note, of course, that whereas the defendant in Custis raised a Sixth Amendment collateral challenge during direct review of his enhanced criminal sentence, the defendant here has raised his similar challenge some ten years after the recidivist sentence enhanced by juvenile convictions. In this regard, it may be argued that the rule of Custis is specifically directed to those situations in which a defendant collaterally challenges prior convictions on direct review of a subsequent criminal proceeding and, accordingly, that our reliance on this Supreme Court decision is inapposite.

We reject both the distinction and the conclusion. The Custis decision expressly holds that convictions obtained in violation of Gideon constitute jurisdictional defects. As contemplated by MCR 6.508(D)(3), jurisdictional defects — and any alleged error for which a defendant can show "good cause” and "actual prejudice” — may be challenged postappeal, i.e., after direct review has been exhausted. Accordingly, while Custis may proceed upon a factual foundation of direct review, we believe that, for purposes of Michigan law, the structure of its reasoning extends beyond this limited scenario to include jurisdictional defects raised after direct review. Therefore, the only thing inapposite about Custis is the timing of the collateral challenges that it contemplates. Such jurisdictional challenges may be raised on direct review or, as contemplated by MCR 6.508(D)(3), in a postappeal motion for relief from judgment.

6 United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). In Tucker, the United States Supreme Court held that prior convictions invalid under Gideon, could not be considered at a subsequent criminal sentencing. "Tucker is applicable with full retroactivity to all sentences imposed by Michigan courts.” Moore, supra at 437.

7 The most notable development first emerged in People v Triplett (After Remand), 91 Mich App 82, 87; 283 NW2d 658 (1979), rev’d 407 Mich 510; 287 NW2d 165 (1980), in which the Court of Appeals dropped our requirement that a sentencing court either "fail[] to reply” or "refuse[] to furnish” requested records, and inserted language that simply required proof that a defendant had "requested such records and has not received them.” See also People v Schram, 98 Mich App 292; 296 NW2d 840 (1980) (same error); People v Evans, 115 Mich App 711; 321 NW2d 686 (1982) (same error). This interpretation has recently remanifested itself in People v Hannan (After Remand), 200 Mich App 123; 504 NW2d 189 (1993).

In Hannan, the defendant filed an affidavit stating that his request for transcripts of a prior adjudication was unfulfilled because the court reporter had been unable to locate any documentary materials pertaining to the prior conviction. Notably, the court reporter had replied to the defendant and informed the latter of the record’s unavailability. Nevertheless, the Court of Appeals concluded that the defendant’s affidavit presented a prima facie case that his pleas were obtained in violation of the right to counsel, and remanded for a Tucker hearing.

8 Neither appellee nor appellant has argued that the probate court’s reliance upon MCR 5.925(E)(2)(b) was improper, or that a different expungement rule should have been used. Accordingly, we do ,not decide if MCR 5.925 or a different rule is applicable for purposes of expungement in this case. Nor do we decide whether, under MCR 5.925, properly expunged juvenile convictions can be used for purposes of recidivist sentencing.

9 Indeed, defendant argues that Moore should apply where trial records are absent and insists that, under Moore, he has met his burden of proof in this case:

[Defendant] maintains that when he produces proof that a record does not exist or the conviction on its face indicates a lack of counsel, he has . . . taken affirmative steps to document his claim. The lack of a record or a silent record (or the court’s failure to respond) raises the issue of the lack of validity or reliability of the conviction. [Defendant] asserts that burden properly shifts to the prosecution to establish the propriety of his sentence enhancement based on what now appears to be invalid convictions. [Emphasis added.]

In short, because a record does not exist, defendant alleges to have maintained his initial burden of proof under Moore. For the reasons stated herein, we disagree.

10 Boykin v Alabama, 395 US 238, 243; 89 S Ct 1709; 23 L Ed 2d 274 (1969). Boykin specifically involved the waiver, by guilty plea, of three constitutional rights: (1) the right to a jury trial, (2) the right to confront one’s accusers, and (3) the privilege against self-incrimination. These constitutional rights are not the basis for defendant’s collateral attack here.

Defendant makes a strong argument that, because Michigan common law recognizes a difference between Boykin rights and the right to counsel, Parke is largely irrelevant. While technically accurate, we believe that defendant’s conclusion concerning Parke is incorrect. This Court has recognized that while the failure to advise a defendant of Boykin rights is not a constitutional issue (but, rather, one of policy), the right to counsel does implicate constitutional concerns and, accordingly, demands a more stringent inquiry on review. People v Ingram, supra; People v Crawford, supra at 615 (Brickley, J., concurring in the result) (Boykin rights "pale[] beside the right to counsel,” and the latter right must remain subject to collateral attack). Our decision today, of course, recognizes a defendant’s right to collaterally attack prior sentences procured in alleged violation of the right to counsel.

Nevertheless, we do not believe that this conclusion undermines the reasoning or rationale of Parke. The focus of our legal inquiry here is not on what happens after the waiver of counsel, but instead on the waiver (or lack thereof) itself. Specifically, who bears the burden of proof on the waiver issue? The fact that the right to counsel may enjoy greater importance before and after a guilty plea says nothing about who should bear the burden of proof concerning a waiver. For example, just because the right to counsel has greater importance after a guilty plea does not automatically mean that either the prosecutor or the defendant must bear the burden of subsequently proving or disproving a valid waiver. Instead it only suggests that the waiver remains subject to collateral attack — a conclusion not disputed in this opinion. In this regard, the distinction between Boykin rights and the right to counsel is not dispositive here and, accordingly, the reasoning of Parke is properly considered.