Michigan Supreme Court Lansing, Michigan
Syllabus Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kimberly K. Muschong
PEOPLE v KLUNGLE
Docket Nos. 168010 and 168011. Argued on application for leave to appeal April 8, 2026. Decided July 6, 2026.
Richard E. Klungle was convicted following a jury trial in the Emmet Circuit Court of one count of trespassing, MCL 750.552, and two counts of resisting or obstructing a police officer, MCL 750.81d(1). Defendant moved for a new trial and an evidentiary hearing, arguing that he was denied his Sixth Amendment right to counsel and right to maintain his innocence when trial counsel conceded defendant’s guilt on the trespassing charge. During the hearing, trial counsel testified that defendant had maintained his innocence of the charges, but counsel had used his “best legal judgment” by deciding to concede guilt on trespassing in the hope that he would maintain his credibility with the jury and obtain an acquittal on the felony charges. Counsel did not inform defendant of his plan to concede guilt, and defendant did not tell him to concede guilt. The trial court, Jennifer Deegan, J., denied the motion for a new trial, and the Court of Appeals, CAMERON, P.J., and JANSEN and SWARTZLE, JJ., affirmed. ___ Mich App ___ (November 19, 2024) (Docket Nos. 364125 and 367795). Defendant applied for leave to appeal in the Michigan Supreme Court, which ordered oral argument on the application. ___ Mich ___; 20 NW3d 573 (2025).
In a unanimous opinion by Justice BOLDEN, the Supreme Court held:
Trial counsel’s concession of guilt on the trespassing charge violated defendant’s Sixth Amendment right of autonomy to maintain innocence on all charges as the objective of his defense. Under McCoy v Louisiana, 584 US 414 (2018), this was a structural error that requires automatic reversal.
1. The Sixth Amendment, US Const, Am VI, guarantees a criminal defendant the right to the assistance of counsel for their defense. When represented by counsel, a defendant generally relinquishes control over trial management to their attorney, but the accused retains complete autonomy over certain fundamental choices, including the right to decide that the objective of the defense is to assert innocence. In McCoy, the United States Supreme Court held that when a client expressly asserts that the objective of their defense is to maintain innocence of the charged acts, the client’s lawyer must abide by that objective and may not override it by conceding guilt. The Court further held that ineffective-assistance-of-counsel jurisprudence did not apply in these situations because a client’s autonomy, not counsel’s competence, was at issue. The violation of a defendant’s Sixth Amendment right of autonomy is a structural error requiring reversal without a showing of prejudice. Although McCoy was a capital murder case, a defendant’s right to maintain innocence applies in all criminal prosecutions, and the Sixth Amendment principles from McCoy are not limited to capital cases.
2. Under McCoy, the concession of guilt by trial counsel here violated defendant’s right of autonomy to claim innocence as the objective of his defense. Like in McCoy, the expressed pretrial objective of defendant was to maintain his innocence, and as in McCoy, trial counsel was aware of defendant’s desire. Additionally, like in McCoy, defendant here testified at trial and maintained his innocence while doing so. While communication between defendant and trial counsel had deteriorated by the time of trial, what matters under McCoy is trial counsel’s confirmation at the evidentiary hearing that during his conversations with defendant about the objective of the defense for trial, defendant maintained his innocence. Knowing this, trial counsel could not disregard defendant’s prior statements and concede guilt without first consulting him. The lower courts’ reliance on the fact that defendant never told counsel not to concede guilt turned the inquiry on its head, ignoring the attorney’s duty of consultation and placing the burden on a client to tell his attorney what not to do. The Court of Appeals erred by concluding that the facts of this case were more similar to Florida v Nixon, 543 US 175 (2004), another capital case in which defense counsel believed that the best strategy to save his client’s life was to concede guilt. Nixon is plainly distinguishable from this case because its holding is limited to situations in which defense counsel consults the client regarding a concession strategy and the client is unresponsive. Here, there was no dispute that such a consultation did not happen, so the rule from Nixon did not apply.
3. A client need not contemporaneously object to their attorney’s conduct to establish a Sixth Amendment claim that their right of autonomy was violated. The fact that the defendant in McCoy “adamantly” objected to his attorney’s concession when it was made at trial does not mean that the failure to do so is fatal in all other cases. The right of autonomy to maintain innocence is not lost simply because a client fails to contemporaneously object, particularly where the attorney never discusses a concession strategy with the client and therefore deprives the client of an adequate opportunity to object. Additionally, where a defendant is represented by counsel, that attorney acts and speaks on behalf of the defendant; trial courts generally do not allow the represented defendant to speak whenever they choose, and this case was no different. The record shows that defendant tried to speak during trial after defense counsel’s closing argument and again after the prosecutor’s rebuttal argument, and on both occasions, the trial court instructed defendant to remain quiet and not interrupt. Requiring a defendant to contemporaneously object on their own behalf to their attorney’s conduct at trial would be impractical and inconsistent with our system of attorney-client representation. Nor is a contemporaneous objection by a client to their attorney’s concession of guilt necessary to preserve this type of Sixth Amendment claim. Assuming without deciding that a McCoy violation is an error that is subject to forfeiture, defendant preserved his claim by raising it with the trial court in a timely postjudgment motion for new trial and evidentiary hearing.
4. Defendant is entitled to a new trial on all charges because the structural error in conceding guilt on the trespassing charge was intrinsically harmful given that it rendered unfair or unreliable the determining of guilt or innocence by the jury on the resisting-or-obstructing charges. Trial counsel contested the resisting-or-obstructing charges. But all the charges against defendant were interconnected, in that defendant allegedly failed to comply with lawful commands and physically resisted police officers while refusing to leave the property on which he was trespassing. Because the common law grants the right to resist an unlawful arrest by an officer, the prosecutor had to establish as an element of resisting or obstructing that the officers acted lawfully when they arrested defendant for trespassing. Conceding guilt on the trespassing charge necessarily undermined any challenge to the lawful-act element.
Court of Appeals judgment reversed, convictions vacated, and case remanded to the trial court. Michigan Supreme Court Lansing, Michigan
OPINION Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood
FILED July 6, 2026
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v Nos. 168010; 168011
RICHARD EDWARD KLUNGLE,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
BOLDEN, J. In McCoy v Louisiana, 584 US 414, 422; 138 S Ct 1500; 200 L Ed 2d 821 (2018),
the Supreme Court recognized an accused’s Sixth Amendment right of autonomy to
maintain innocence as the objective of the defense and confirmed that this right is reserved
for the defendant. In this case, we consider whether trial counsel’s decision to concede the
guilt of defendant, Richard Klungle, on a trespassing offense violated this Sixth
Amendment guarantee. We hold that it did. Klungle consistently asserted his innocence to his attorney before trial and testified in his own defense that he did not believe he was
trespassing. Despite knowing that Klungle adamantly believed he had done nothing wrong,
defense counsel admitted Klungle’s guilt to the jury for the first time during closing
argument and never consulted Klungle about this strategy. Under McCoy, this concession
constituted a structural error that deprived Klungle of the autonomy to maintain his
innocence on all charges. We therefore reverse the judgment of the Court of Appeals,
vacate Klungle’s convictions and sentences, and remand this case to the Emmet Circuit
Court for further proceedings.
I. FACTUAL BACKGROUND
The convictions in this case arise out of a familial dispute over the ownership of
property. Klungle lived with his children and his grandmother for five years in a home that
his grandmother owned until she died in 2022. Because she died without a will, the home
passed to her four children, not Klungle. He nonetheless refused to leave the home,
believing that his grandmother intended for him to inherit it. Eviction proceedings were
initiated by the grandmother’s estate, resulting in a court order that Klungle vacate the
premises. After Klungle did not comply, a final notice of eviction was placed on the front
door of the home. A few days later, with Klungle still residing inside, officers with the
Emmet County Sheriff’s Department came to the home to enforce the eviction order. When
Klungle refused to leave, the officers informed him that he was being arrested for
trespassing. Klungle did not comply with the officers’ commands as they physically
removed him from the property. For his actions, Klungle was charged with one
misdemeanor count of trespass and two felony counts of resisting or obstructing a police
2 officer. Attorney Peter Lyons was appointed to represent him. They had an existing
relationship at the time. Lyons was already representing Klungle in a separate criminal
matter, and while that case was pending, Lyons had also agreed to represent Klungle in the
civil eviction case. Before the instant case went to trial, Klungle was convicted of domestic
violence in the other criminal case.
At trial here, Lyons told the jury during opening statements that Klungle believed
he “still ha[d] the right to occupy this property based on the agreements that he had with
his grandparents” 1 and therefore felt “he was on the property lawfully.” Lyons opined that
the evidence would lead the jury to find Klungle not guilty of all charges. In its case-in-
chief, the prosecution introduced the eviction order as evidence, as well as testimony and
body-camera footage from the officers who arrested Klungle. After the prosecution rested,
Klungle chose to testify in his own defense. He admitted that he had remained in the home
after receiving the eviction notice. But he testified that he “[did] not feel [he] was
trespassing” because the home had been purchased for him and his children, and he
believed he had the right to remain in the home. The defense rested without presenting any
additional evidence. In his closing argument, Lyons changed tactics, telling the jury that
Klungle trespassed:
I’m not going to sit here and try and tell you this is not a trespass. . . . [T]he proofs would show that a trespass was committed. I’m not going to try and tell you something that I don’t think the evidence supports. I think the evidence does support that.
1 Before moving into the home at issue, Klungle had lived with his grandfather and grandmother at a different residence.
3 Lyons asked the jury to find Klungle guilty of trespassing but not guilty of the resisting-
or-obstructing offenses. Klungle attempted to speak afterward, but the trial court directed
him to remain quiet. The jury returned a guilty verdict on all counts.
After sentencing, Klungle moved for a new trial and an evidentiary hearing, arguing
that he was denied his Sixth Amendment right to counsel and right to maintain innocence
when Lyons conceded his guilt on the trespassing charge. The trial court held an
evidentiary hearing to consider testimony from Lyons and Klungle. Lyons explained that
his relationship with Klungle had worsened after the domestic-violence conviction.
Although Klungle never refused to meet with Lyons before trial, Lyons felt that he could
not have meaningful discussion with Klungle about the charges in this case, and by the
time of trial, their relationship had “deteriorated” to the point that Klungle was not speaking
with him. Importantly, however, Lyons confirmed that when they had previously discussed
the charges, Klungle maintained his innocence. Lyons also confirmed that Klungle was
unwilling to admit to the facts that would have been necessary to enter a guilty plea.
Specifically, Klungle “never accepted” that he lacked a legal claim to remain in the home,
and Lyons could not “dislodge” Klungle’s “fixed belief” that the property “was his” and
that “he had not done anything” to justify the charges brought against him.
Regarding the decision to concede guilt, Lyons admitted that he was unaware of
McCoy at the time of trial. He also never informed Klungle of the planned concession, nor
did Klungle ever tell Lyons to concede his guilt. At the same time, Klungle never instructed
Lyons not to concede guilt. Lyons believed that “in the absence of that instruction” and
without “any meaningful communication” from Klungle, he was left to use his “best legal
judgment” to defend against the charges. Lyons hoped that by conceding guilt on
4 trespassing, for which he saw no viable defense, he would maintain his credibility with the
jury and obtain an acquittal on the felony charges. Klungle, meanwhile, testified that he
told Lyons he was innocent before trial and that Lyons never discussed with him any plan
to concede guilt as to the trespass charge. Klungle said he would have opposed a
concession if he had known it was going to occur.
The trial court denied the motion for a new trial, explaining that Klungle had a “duty
to assist [Lyons] in trial preparation” but would not speak with Lyons and never told him
not to concede guilt. In the court’s view, therefore, Lyons was entitled to manage the
defense in a manner he thought was “prudent and wise” and did not violate Klungle’s
fundamental rights by doing so. In a published opinion, the Court of Appeals affirmed.
People v Klungle, ___ Mich App ___; ___ NW3d ___ (November 19, 2024) (Docket Nos.
364125 and 367795). The panel reasoned in part that, because Klungle had refused to
communicate with Lyons and “did not express a contrary instruction” to the partial
concession, Lyons “properly exercised his discretion in implementing what he reasonably
believed was the most prudent trial strategy.” Id. at ___; slip op at 4.
Klungle then sought leave to appeal here. We ordered oral argument on the
application and directed the parties to address “whether trial counsel’s concession of the
defendant’s guilt to trespassing deprived the defendant of his right to counsel and of the
autonomy to decide that the objective of the defense is to assert his innocence.” People v
Klungle, ___ Mich ___, ___; 20 NW3d 573, 574 (2025). 2
2 Klungle’s application for leave to appeal also raised a sentencing argument. In light of our resolution of this appeal, the sentencing challenge is moot and therefore unnecessary to address.
5 II. LEGAL BACKGROUND
The Sixth Amendment of the United States Constitution guarantees a criminal
defendant the “Assistance of Counsel for his defence,” US Const, Am VI, and the
Fourteenth Amendment incorporates the right to counsel in state prosecutions, Gideon v
Wainwright, 372 US 335, 342-345; 83 S Ct 792; 9 L Ed 2d 799 (1963). When represented
by counsel, a defendant generally relinquishes control over “[t]rial management,”
including tactical decisions like what objections to make and which lines of questioning to
pursue, as that is “the lawyer’s province.” McCoy, 584 US at 422. But the accused retains
complete autonomy over certain fundamental choices, including “whether to plead guilty,
waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” Id. At
issue here is another aspect of the representation reserved for the client: the “[a]utonomy
to decide that the objective of the defense is to assert innocence.” Id.
Central to understanding the scope of this Sixth Amendment right is the Supreme
Court’s decision in McCoy. That was a capital murder case where defense counsel believed
that, absent a concession of guilt by the defendant, Robert McCoy, a death sentence would
be impossible to avoid during the penalty phase of trial. Id. at 418. When counsel advised
McCoy of this proposal, McCoy told counsel not to make such a concession and to pursue
an acquittal. Id. at 419. Nonetheless, at trial, counsel told the jury during the opening
statement and closing argument that McCoy was the killer. Id. at 419-420. McCoy
“adamantly” objected; he also testified and pressed his claim of innocence with an alibi
theory that was “difficult to fathom.” Id. at 417, 419-420. The jury convicted McCoy and
voted for a death sentence. Id. at 420.
6 The Supreme Court held that “[w]hen a client expressly asserts that the objective of
‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide
by that objective and may not override it by conceding guilt.” Id. at 423, quoting US Const,
Am VI. Therefore, when McCoy expressed to counsel that he was opposed to admitting
responsibility, counsel could not override McCoy’s objection. Id. at 424. The Court also
explained that because a client’s autonomy and not counsel’s competence was at issue,
ineffective-assistance-of-counsel jurisprudence did not apply. Id. at 426. Instead, the
violation of a defendant’s Sixth Amendment right of autonomy is a structural error,
requiring reversal without a showing of prejudice. Id. at 427-428. Accordingly, the Court
ordered a new trial for McCoy. Id. at 428.
The Court in McCoy also distinguished its holding from Florida v Nixon, 543 US
175; 125 S Ct 551; 160 L Ed 2d 565 (2004), another capital prosecution where defense
counsel believed that the best strategy to save the life of his client, Joe Elton Nixon, was to
concede guilt. Id. at 181. In that case, Nixon’s attorney attempted to explain the proposed
concession strategy to his client at least three times. Id. But whereas McCoy opposed his
attorney’s admission of guilt at every opportunity, Nixon was unresponsive and “never
verbally approved or protested” counsel’s recommendation. Id.; see McCoy, 584 US at
417-420. Escalating matters, Nixon’s behavior shifted to disruption and violence during
jury selection for his trial. Nixon, 543 US at 182. He refused to be escorted to the
courtroom and threatened to continue to misbehave if forced to attend the proceedings. Id.
As a result, Nixon was not present in the courtroom during the guilt phase of trial. Id.
Faced with this reality, Nixon’s counsel exercised his professional judgment and conceded
7 his client’s guilt at trial. Id. at 181-183. The strategy was unsuccessful, as the jury
recommended—and the trial court imposed—a sentence of death. Id. at 184.
The Supreme Court rejected Nixon’s argument that trial counsel provided
ineffective assistance by conceding guilt without obtaining Nixon’s express consent. Id.
at 189-192. The Court reaffirmed that an attorney “has a duty to consult with the client
regarding ‘important decisions,’ including questions of overarching defense strategy.” Id.
at 187, quoting Strickland v Washington, 466 US 668, 688; 104 S Ct 2052; 80 L Ed 2d 674
(1984). But “[w]hen counsel informs the defendant of the strategy counsel believes to be
in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic
choice is not impeded by any blanket rule demanding the defendant’s explicit consent.”
Nixon, 543 US at 192. So long as that strategy satisfies Strickland’s standard of objectively
reasonable performance, the defendant cannot establish that he was deprived of the
effective assistance of counsel. Id. Thus, in contrast to McCoy, the right of autonomy was
not at issue. See McCoy, 584 US at 424 (“Nixon’s attorney did not negate Nixon’s
autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any
such objective.”).
III. DISCUSSION
Klungle argues that trial counsel’s unilateral decision to concede his guilt on the
trespassing charge violated his Sixth Amendment right of autonomy as recognized in
McCoy. We review this question of constitutional law de novo, meaning independently
and without deference to the lower courts. People v Beck, 504 Mich 605, 618; 939 NW2d
8 213 (2019). Before turning to the substance of the argument, we address a threshold matter
raised by the prosecution.
A. RIGHT OF AUTONOMY IN NONCAPITAL CASES
The prosecution briefly suggests that it is “questionable” whether McCoy even
applies to noncapital cases like this one. Not so. Numerous statements from McCoy
support a broader application of its holding to noncapital cases. See, e.g., McCoy, 584 US
at 422 (comparing the right of autonomy to maintain innocence with a defendant’s choice
to refuse to plead guilty or reject the assistance of counsel); id. at 423 (“Counsel, in any
case, must still develop a trial strategy and discuss it with her client, explaining why, in her
view, conceding guilt would be the best option.”) (citation omitted). A defendant’s right
to maintain innocence—just like the other fundamental decisions listed in McCoy that are
reserved for the accused—applies in all criminal prosecutions. See Grant v Comm’r of
Correction, 345 Conn 683, 697 n 7; 287 A3d 124 (2022) (agreeing that McCoy applies
outside of the capital context and noting that “[i]t is axiomatic that the [S]ixth
[A]mendment applies to all criminal prosecutions and that the rights secured thereunder do
not turn on the severity of the potential punishment for an offense”). While McCoy arises
out of a capital case, the Sixth Amendment principles from the decision are not so limited.
B. APPLICATION OF McCOY
We now turn to the crux of Klungle’s argument. He contends that a
straightforward application of McCoy establishes a violation of his right of autonomy and
that Nixon does not apply to the circumstances of his case. The prosecution counters that
9 Klungle is not entitled to relief under McCoy and that Nixon governs trial counsel’s
failure to consult.
While this case is not on all fours with either decision, we hold that the
circumstances correspond more with McCoy. Like in McCoy, Klungle’s expressed pretrial
defense objective was to maintain his innocence. Like in McCoy, defense counsel was
aware that Klungle wanted to assert innocence and would not admit to wrongdoing. And
like in McCoy, Klungle testified at trial and maintained his innocence while doing so.
Under those circumstances, Lyons could not unilaterally concede guilt. In concluding
otherwise, the Court of Appeals erred in several respects.
To start, the Court of Appeals reasoned that Klungle’s lack of communication with
Lyons forced Lyons to make a reasonable strategic decision about concession. In support,
the panel quoted McCoy’s statement that “[i]f a client declines to participate in his defense,
then an attorney may permissibly guide the defense pursuant to the strategy she believes to
be in the defendant’s best interest.” McCoy, 584 US at 424. Simply put, Klungle did not
decline to participate in his defense. Most obviously, he testified in his own defense about
the circumstances of the offense. Earlier in the trial, too, the record reflects that Lyons
conferred with Klungle. True, meaningful communication had deteriorated leading up to
trial and their relationship had broken down. 3 But so had the attorney-client relationship
in McCoy, where the defendant tried to terminate counsel’s representation on the eve of
trial. Id. at 419. Thus, what matters for the analysis under McCoy is Lyons’s confirmation
3 This breakdown stemmed, at least in part, from counsel’s disagreement with Klungle about the validity of his claim of innocence.
10 that—when they had previously spoken about the objective of the defense for trial—
Klungle maintained his innocence. Knowing this, Lyons could not disregard Klungle’s
prior statements and concede guilt without first consulting him. See id. at 424 (“Presented
with express statements of the client’s will to maintain innocence, . . . counsel may not
steer the ship the other way.”). The fact that Klungle never told Lyons not to concede guilt
flips the inquiry on its head, ignoring the attorney’s duty of consultation and placing the
burden on a client to tell his attorney what not to do.
Further, the Court of Appeals erred by concluding that Nixon was more on point.
Nixon is plainly distinguishable from this case, as its holding is limited to situations where
defense counsel consults the client about a concession strategy and the client is
unresponsive. McCoy confirmed this understanding of Nixon. See id. at 417 (describing
Nixon as holding that “when counsel confers with the defendant and the defendant remains
silent, neither approving nor protesting counsel’s proposed concession strategy,” the
defendant’s explicit consent to that strategy is not required). There’s no dispute that this
consultation never happened here, so the rule from Nixon does not apply. See also United
States v Hashimi, 110 F4th 621, 630 (CA 4, 2024) (“[Nixon’s] rule does not apply when a
lawyer fails his initial duty of consultation, conceding guilt to a jury without first consulting
with his client and seeking the client’s views.”). 4
The Court of Appeals also drew a distinction between Klungle’s “generalized claim
of innocence” and McCoy’s claim of factual innocence. Klungle, ___ Mich App at ___;
4 Although the decisions of lower federal courts are not binding on us, we may consider these decisions for their persuasive value. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
11 slip op at 4. The panel reasoned that, whereas McCoy contested the facts of the charged
crime and presented an alibi defense, Klungle “did not challenge the factual basis for the
trespassing charge” and made only a “generalized claim of ownership of the home” without
sufficient factual support. Id. at ___; slip op at 4. This distinction is legally insignificant.
As McCoy made clear, “a defendant has the right to insist that counsel refrain from
admitting guilt” and to leave the prosecution to its burden of proving guilt beyond a
reasonable doubt. McCoy, 584 US at 417-418. This principle does not turn on whether, in
a trespass case, the defendant adequately supported his subjective belief that he did not
trespass because he had “legal authority to remain on the property.” M Crim JI 25.7(6). 5
Just as the accused may prefer “taking a chance at trial” despite “almost certain”
conviction, so may the accused choose to maintain innocence despite a legally flawed
belief of no wrongdoing. McCoy, 584 US at 423 (quotation marks, citation, and brackets
omitted). As Lyons put it at the evidentiary hearing, Klungle could not be “dislodge[d]”
from his “fixed belief” that he was innocent. The Sixth Amendment protected Klungle’s
right to assert this belief as the objective of his defense.
We do not question that Lyons felt he was using his “best legal judgment” when he
chose to admit Klungle’s guilt on the trespassing charge. But whether a concession of guilt
is well-intended or a reasonable trial strategy is not the question we ask under McCoy.
Rather, a client who wishes to maintain their innocence has the right to do so, no matter
5 Notably, the use note for the Model Criminal Jury Instruction for trespassing advises that this “legal authority” element should be read to the jury only “where the defendant presents some evidence that he or she had a legal right to remain on the premises.” M Crim JI 25.7, use note. The trial court in this case instructed the jury that the prosecution had to prove this element.
12 how ill-advised or unwise that decision may be. Counsel may not unilaterally override that
decision as a matter of professional judgment. Instead, McCoy authorizes a concession of
guilt under these circumstances only when counsel first consults the client and the client
either approves the strategy or, like in Nixon, remains unresponsive. In this case, Klungle
expressed his innocence to Lyons before trial and maintained this position on the witness
stand. Nonetheless, Lyons shifted strategy during closing argument by admitting
Klungle’s guilt on the trespassing charge without ever consulting Klungle about this plan.
We therefore hold that this concession of guilt violated Klungle’s right of autonomy to
claim innocence as the objective of his defense.
C. CONTEMPORANEOUS OBJECTION
In opposing relief for Klungle, the prosecution counters that his failure to
contemporaneously object to the concession of guilt, like the defendant in McCoy, renders
the claim both unpreserved and facially deficient. The legal rule from McCoy, the
prosecution contends, is that a defendant must voice an “intransigent and unambiguous”
objection to their attorney’s concession of guilt to make out a Sixth Amendment autonomy
claim. See McCoy, 584 US at 420. We do not read McCoy so narrowly.
In our view, the holding from McCoy is: “When a client expressly asserts that the
objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer
must abide by that objective and may not override it by conceding guilt.” McCoy, 584 US
at 423, quoting US Const, Am VI. The fact that McCoy “adamantly” objected to his
attorney’s concession when it was made at trial does not mean that the failure to do so is
fatal in all other cases. The right of autonomy to maintain innocence is not lost simply
13 because a client fails to contemporaneously object. That is particularly so where the
attorney never discusses a concession strategy with their client and therefore deprives the
client of an adequate opportunity to object. See Hashimi, 110 F4th at 630 (“McCoy puts
the obligation on the lawyer, requiring that before counsel may make a concession of guilt
to the jury, he must discuss his plan with the defendant.”); United States v Schaffer, 731 F
Supp 3d 382, 390-391 (ND NY, 2024) (“[C]ounsel cannot affirmatively concede guilt on
a charged crime without putting the client on notice of the plan and giving them some kind
of opportunity to raise an objection.”).
Moreover, when the unadvised concession comes for the first time at the end of trial,
the inability to object is heightened. See id. at 384-385, 390 (holding that the defendant
was denied any opportunity to object when his attorney suddenly conceded guilt during
closing argument). Were it otherwise, an attorney could refuse to consult their client about
a plan to concede guilt—despite knowing the client wished to maintain innocence—and
proceed with that concession without violating the client’s right of autonomy, so long as
the client did not immediately speak up. While a defendant may have better luck proving
their McCoy claim after a conviction if they made a contemporaneous objection at trial, 6
that is distinct from whether such conduct is a necessary element of the claim.
Another reason we do not read McCoy’s holding to mandate a contemporaneous
objection is a practical one. When a defendant is represented by counsel, that attorney acts
and speaks on the defendant’s behalf; trial courts generally do not allow the represented
6 For instance, depending on the circumstances, a contemporaneous objection might obviate the need for a postconviction evidentiary hearing like that which occurred in this case.
14 defendant to speak whenever they may choose. This case is no different. After Lyons
ended his closing argument, and after the prosecutor’s rebuttal argument, the transcript
twice reflects an attempt by Klungle to speak. Both times, the trial court instructed Klungle
to remain quiet and not interrupt. We cannot speculate whether Klungle was attempting to
object to his attorney’s partial concession of guilt on either of these occasions; the point is
that, whatever he was attempting to say, the trial court did not allow him to make a record.
Requiring a defendant to contemporaneously object on their own behalf to their attorney’s
conduct at trial would therefore be impractical and inconsistent with our system of
attorney-client representation. See Hashimi, 110 F4th at 630 n 4 (disagreeing that a client
must object in open court to establish a McCoy violation by explaining that “we do not
craft legal rules to encourage clients to speak out of turn in court”). We are unaware of
any other context during a trial where a represented defendant is required to object, without
prompting by the trial court, to their attorney’s decision. In sum, requiring a defendant to
contemporaneously object to an attorney’s concession of guilt when it occurs is neither
legally required by McCoy nor practically wise.
The impracticality of this requirement also informs the question of preservation.
Many claims of error require a contemporaneous objection for appellate preservation,
including some claims of structural error. See People v Davis, 509 Mich 52, 65; 983 NW2d
325 (2022). Common justifications for that rule are that litigants are “best equipped to
respond to alleged errors at the time they occur,” People v Cain, 498 Mich 108, 114; 869
NW2d 829 (2015), and that a timely objection similarly allows a trial court “the opportunity
to correct the error” in the moment, People v Vaughn, 491 Mich 642, 674; 821 NW2d 288
(2012). These justifications generally assume, in the case of represented defendants, that
15 it is the attorney who has failed to object. See id. (discussing the concern that “counsel can
harbor error as an appellate parachute by failing to object” to a possible structural error).
But as discussed, the nature of the claim here—assessing whether defense counsel
conceded guilt over the defendant’s contrary wishes—is not well-suited to that rule because
it would require a defendant to speak out of turn.
Further, like an ineffective-assistance-of-counsel claim, “the errors underlying
[McCoy] claims often are not apparent from the trial record but instead require additional
evidentiary development.” See People v Randolph, 502 Mich 1, 14; 917 NW2d 249
(2018). Just as a client need not contemporaneously object to their attorney’s conduct to
preserve a Sixth Amendment claim of ineffective assistance of counsel, see id. at 14-15, a
client need not do the same to preserve a Sixth Amendment claim that their right of
autonomy has been violated. Therefore, assuming without deciding that a McCoy violation
is an error that is even subject to forfeiture, 7 we conclude that Klungle preserved this claim
by raising it with the trial court in a timely postjudgment motion for new trial and
evidentiary hearing. 8 The failure to contemporaneously object to the concession of guilt
7 Relying on People v King, 512 Mich 1; 999 NW2d 670 (2023), Klungle maintains that the forfeiture doctrine does not apply to a claimed violation of the Sixth Amendment right of autonomy. We held in King that the forfeiture doctrine does not apply “where a self- represented defendant fails to object when the trial court fails to obtain a valid waiver of the right to counsel.” Id. at 4. The right to counsel, we explained, cannot be forfeited because “the right is preserved absent a personal and informed waiver[.]” Id. at 14. Therefore, requiring a defendant to object to their own invalid waiver would be an “impractical rule.” Id. at 14-15. See also Vaughn, 491 Mich at 655-657 & n 42 (distinguishing the right to counsel from other constitutional rights that require an affirmative invocation to preserve for appellate review). 8 The prosecution’s position also strikes us as inconsistent with our preservation jurisprudence because it effectively treats the purported forfeiture of a McCoy claim as dispositive of the merits. In the prosecution’s view, the same omission that forfeits a Sixth
16 neither forfeited nor foreclosed his claim on the merits and thus does not alter our
conclusion that Klungle was denied his Sixth Amendment right to maintain innocence as
the objective of his defense.
D. REMEDY
Last is the question of remedy. As noted, a violation of a defendant’s Sixth
Amendment right of autonomy is a structural error, McCoy, 584 US at 427, and when
preserved, it requires automatic reversal, Davis, 509 Mich at 67. The logic of deeming
certain errors structural is that they “affect[] the framework within which the trial
proceeds[.]” Arizona v Fulminante, 499 US 279, 310; 111 S Ct 1246; 113 L Ed 2d 302
(1991). We don’t require a defendant to show prejudice because a structural error is one
that is too difficult to measure or that implicates fundamental fairness. McCoy, 584 US at
427. The reason a McCoy violation is a structural error is twofold: a concession of guilt
“blocks the defendant’s right to make the fundamental choices about his own defense,” and
“the effects of the admission would be immeasurable, because a jury would almost
certainly be swayed by a lawyer’s concession of his client’s guilt.” Id. at 428.
This case presents a factual wrinkle not present in McCoy: where an attorney
improperly concedes guilt on one charge but contests others, does the structural error
require reversal of all convictions obtained in the trial? We conclude, on the facts of this
case, that full reversal is appropriate. The charges against Klungle were interconnected
Amendment autonomy claim—the failure to contemporaneously object—also renders that claim facially deficient. In other words, a forfeited claim is necessarily an unsuccessful one. Yet when a claim of structural error is forfeited, that claim may still be proven, but under a heightened standard. See Davis, 509 Mich at 67-68 (describing the modified plain- error standard for forfeited structural errors).
17 and arose from one ongoing incident. That is, Klungle allegedly failed to comply with
lawful commands and physically resisted two police officers while refusing to leave the
property he was trespassing on. Because the common law grants the right to resist an
unlawful arrest by an officer, the prosecution must establish as an element of a resisting-
or-obstructing charge that an officer’s actions were lawful. People v Moreno, 491 Mich
38, 51-52; 814 NW2d 624 (2012); M Crim JI 13.1(4). In this case, therefore, the jury was
instructed that the prosecution had the burden to show that the police officers acted lawfully
when they arrested Klungle for trespassing. Conceding guilt on the trespassing charge
necessarily undermined any challenge to this lawful-act element. Although Lyons
contested other elements of the felony charges, we think the structural error in conceding
guilt on the trespassing charge, under these circumstances, was “intrinsically harmful” so
as to “render[] unfair or unreliable the determining of guilt or innocence” by the jury on
the resisting-or-obstructing counts. People v Duncan, 462 Mich 47, 51; 610 NW2d 551
(2000). 9 A new trial is therefore warranted on all charges.
IV. CONCLUSION
Trial counsel’s concession of guilt on the trespassing charge violated Klungle’s
Sixth Amendment right of autonomy to maintain innocence on all charges as the objective
of his defense. Under McCoy, this error is structural and requires automatic reversal. We
9 We decline to address whether the remedy might be different in a case involving a partial concession of guilt where the contested charges arise from separate incidents. But see Phillips v State, 570 P3d 936, 947 (Alas App, 2025) (declining to reverse all convictions for a McCoy violation where trial counsel conceded guilt on only one sexual-assault charge but the defendant was found guilty of committing three additional sexual assaults against three other victims).
18 therefore reverse the judgment of the Court of Appeals, vacate Klungle’s convictions and
sentences, and remand to the Emmet Circuit Court for further proceedings consistent with
this opinion. We do not retain jurisdiction.
Kyra H. Bolden Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kimberly A. Thomas Noah P. Hood