People of Michigan v. Anthony Lewis McCrory ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 22, 2015
Plaintiff-Appellee,
v No. 311205
St. Clair Circuit Court
ANTHONY LEWIS MCCRORY, LC No. 11-002928-FH
Defendant-Appellant.
Before: GADOLA, P.J., and JANSEN and BECKERING, JJ.
PER CURIAM.
A jury convicted defendant, Anthony Lewis McCrory, of aggravated stalking, MCL
750.411i, and the trial court sentenced him as a fourth habitual offender, MCL 769.12, to a
prison term of 46 months to 25 years. Defendant appeals his conviction as of right. While the
appeal was pending, this Court granted defendant’s motion to remand to allow defendant to
move for resentencing.1 On remand, the trial court resentenced defendant, again as a fourth
habitual offender to an identical prison term of 46 months to 25 years.2 We vacate defendant’s
conviction and sentence and remand for a new trial.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The dispositive issue in this case surrounds defendant’s request for self-representation.
In this regard, we note that three appointed attorneys discontinued representation of defendant
because they were unable to work with him. The first withdrew, with defendant’s blessing, at
the time of the arraignment because defendant would not cooperate with him. At the time the
1
People v McCrory, unpublished order of the Court of Appeals, entered December 27, 2013
(Docket No. 311205).
2
Defendant originally filed an appeal as of right concerning his resentencing; the case was
assigned to Docket No. 321452, and we consolidated the matter with the instant appeal.
Defendant subsequently moved to dismiss his appeal in Docket No. 321452. On September 8,
2015, we vacated the previous consolidation and dismissed the appeal in Docket No. 321452.
People v McCrory, unpublished order of the Court of Appeals, entered September 8, 2015
(Docket No. 321452).
-1-
second attorney withdrew, again at defendant’s request, the trial court judge recused himself,
given his past experiences with defendant. Defendant proceeded with a third appointed attorney
for a period of time, but eventually, asked that attorney to withdraw as well. Five days before
trial was scheduled to begin, at a hearing on this third attorney’s motion to withdraw, the trial
court engaged in a colloquy with defendant in which defendant asserted his right to self-
representation. The entire exchange is as follows:
THE COURT: Give me a moment. I’m talking about the Motion to
Withdraw as Counsel. What do you have to say about that?
Is, is what [trial counsel] says is [sic] true?
THE DEFENDANT: Yes. It [is] true. I’d like to represent myself.
THE COURT: Okay.
THE DEFENDANT: Like to represent myself.
THE COURT: What I am going to do is this: I will relieve [trial counsel]
of his responsibility to represent you as your lawyer. I am going to order that he
continue in an advisory capacity. So he will be present with you at the trial
should you want to seek advice from him. But he will not be speaking for you at
the trial, nor will anyone else speak for you. You will speak for yourself and only
you will speak for yourself.
Understood?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. Trial is still scheduled to go forwards on Tuesday
of next week. So we will see you then, and you will be representing yourself at
that trial.
Do you have any questions.
THE DEFENDANT: Yes, ma’am. (Unintelligible) . . . Motion to
Quash . . . (unintelligible) . . .added . . . (unintelligible) . . . Motion to Quash . . .
(unintelligible).3
THE COURT: Sir, that’s not--
THE DEFENDANT: (Unintelligible).
3
The record reveals that defendant had a speech impediment and that the reporter often could not
transcribe what he said. However, it appears that, after asserting he wanted to represent himself,
defendant attempted to argue motions that had already been decided.
-2-
(Unintelligible) . . . it says--
THE COURT: Sir--
THE DEFENDANT: -- (unintelligible) . . . November 10th--
THE COURT: Sir--
THE DEFENDANT: -- (unintelligible) --
THE COURT: Sir, sir, time out. You know what this means. Okay.
Now, I didn’t ask you about those things. I’m--those, those issues are now in the
past.
What I’m asking you is: Do you understand that we are going to trial on
Tuesday?
THE DEFENDANT: Oh, yes, understood.
THE COURT: Very good. That’s all I needed to know.
The issue of defendant’s self-representation was not mentioned again. Defendant
represented himself at trial, with his third appointed attorney serving as standby counsel.
Following his convictions, defendant moved for a new trial, arguing that his waiver of the
right to counsel was not knowing, intelligent, and voluntary. The briefing submitted by the
parties revealed that defendant apparently represented himself in another criminal trial in 2006
and was acquitted in that case. Referencing that fact, as well as the fact that defendant had
discharged three appointed attorneys, the trial court denied the motion for a new trial, finding
that defendant’s waiver was knowing, intelligent, and voluntary. Specifically, the trial court
ruled:
THE COURT: All right. Well, let me tell you, unlike--this is a, a
situation where the Defendant has in the past represented himself. Once
successfully so I might add.
* * *
And his--given his history a court can reasonably assume that he is aware
of the downside of representing himself as well as the upside given the fact that
he did so on one occasion successfully.
In this instance he went through three different lawyers and the third was,
the third was appointed by me on an advisory basis and [defendant] had ample
opportunity and consulted with [standby counsel.]
* * *
-3-
. . . Given [defendant’s] unequivocal expressions--expression of his desire
not to want to be represented by an attorney on three separate occasions,[4] given
the fact that he had access to counsel throughout the course of trial, given the fact
that he has--considering also that he has represented himself on one occasion
somewhat successfully, although the success or merit really isn’t that relevant of--
well, in another case entirely separate from this, the Court concludes that he,
[defendant], was well aware of the potential disadvantages of representing
himself. So, the Court is going to deny the motion.
II. SELF-REPRESENTATION
A. STANDARD OF REVIEW
Defendant argues that his waiver of counsel was not knowing, intelligent, and voluntary.
“We review for clear error the trial court’s factual findings surrounding a defendant’s waiver” of
the right to counsel. People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004). “However, to
the extent that a ruling involves an interpretation of the law or the application of a constitutional
standard to uncontested facts, our review is de novo.” Id. The meaning of “knowing and
intelligent” is a question of law that we review de novo. People v Williams, 470 Mich 634, 640-
641; 683 NW2d 597 (2004) (citations omitted).
B. RIGHT TO COUNSEL & WAIVER OF THAT RIGHT
The right to counsel is guaranteed by both the United States and Michigan Constitutions.
Id. at 641-642. However, counsel cannot be forced upon a defendant, and a defendant charged
with a crime may waive his right to counsel and elect to represent himself. Id. Like the right to
counsel, the right of self-representation is protected by both the United States Constitution
(implicitly) and the Michigan Constitution (explicitly). People v Dunigan, 299 Mich App 579,
587; 831 NW2d 243 (2013), citing US Const, Am VI; Const 1963, art 1, § 13. Nevertheless, as
the United States Supreme Court has cautioned, “courts should ‘indulge every reasonable
presumption against waiver of fundamental constitutional rights.’ ” Williams, 470 Mich at 641,
quoting Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 2d 1461 (1938).
“While a defendant may choose to forgo the assistance of counsel at trial, any waiver of
the right to counsel must be knowing, voluntary, and intelligent.” Russell, 471 Mich at 188. See
also Faretta v California, 422 US 806, 835; 95 S Ct 2525; 45 L Ed 2d 562 (1975) (explaining
that, “in order to represent himself, the accused must knowingly and intelligently forgo” the right
to counsel and the benefits associated therewith) (citation and quotation marks omitted). In
4
Defendant expressed a desire not to be represented by his particular appointed counsel on three
separate occasions. He did not, however, express that he did not “want to be represented by an
attorney on three separate occasions.” On the first two occasions, defendant sought appointment
of different counsel. He only expressed his desire to represent himself on the one occasion noted
above.
-4-
People v Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976), our Supreme Court
articulated three criteria that must be met before a trial court may grant the defendant’s request to
proceed pro se. As summarized by the Court in Williams, 470 Mich at 642, those requirements
are:
First, the waiver request must be unequivocal. Second, the trial court must be
satisfied that the waiver is knowingly, intelligently, and voluntarily made. To this
end, the trial court should inform the defendant of potential risks. Third, the trial
court must be satisfied that the defendant will not disrupt, unduly inconvenience,
and burden the court or the administration of court business.
“In addition, a trial court must satisfy the requirements of MCR 6.005(D)[.]” Russell,
471 Mich at 190. Those requirements are, in pertinent part:
The court may not permit the defendant to make an initial waiver of the
right to be represented by a lawyer without first
(1) advising the defendant of the charge, the maximum possible prison
sentence for the offense, any mandatory minimum sentence required by law, and
the risk involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained
lawyer or, if the defendant is indigent, the opportunity to consult with an
appointed lawyer.
If a defendant waives his or her right to counsel, MCR 6.005(E) provides, in pertinent part, that
“the record of each subsequent proceeding” “need show only that the court advised the defendant
of the continuing right to a lawyer’s assistance (at public expense if the defendant is indigent)
and that the defendant waived that right.”
Our Supreme Court has repeatedly held that strict adherence to the waiver procedures is
not required. See, e.g., Russell, 471 Mich at 191. Rather, the Court adopted a “substantial
compliance” standard. Id.Substantial compliance requires that the court discuss the substance of
both Anderson and MCR 6.005(D) in a short colloquy with the defendant, and
make an express finding that the defendant fully understands, recognizes, and
agrees to abide by the waiver of counsel procedures. The nonformalistic nature of
a substantial compliance rule affords the protection of a strict compliance rule
with far less of the problems associated with requiring courts to engage in a word-
for-word litany approach. [People v Adkins, 452 Mich 702, 726-727; 551 NW2d
108 (1996), overruled on other grounds by Williams, 470 Mich 634.]
Ensuring substantial compliance with the Anderson factors “provides a practical, salutary tool to
be used to avoid rewarding gamesmanship as well as to avoid the creation of appellate
parachutes: if any irregularities exist in the waiver proceeding, the defendant should continue to
be represented by counsel.” Russell, 471 Mich at 192.
-5-
C. APPLICATION
With respect to the first Anderson requirement, the record clearly establishes that
defendant made an unequivocal request for self-representation at a hearing five days before the
start of trial. Defendant advocated for the withdrawal of his third appointed attorney and
expressed that he wanted to represent himself.
The crux of defendant’s argument on appeal, as well as our analysis of this issue, lies in
the second Anderson requirement. “[O]nce the defendant has unequivocally declared his desire
to proceed pro se the trial court must determine whether defendant is asserting his right
knowingly, intelligently and voluntarily.” Anderson, 398 Mich at 368. See also Faretta, 422 US
at 835 (reasoning that because the defendant gives up “many of the traditional benefits associated
with the right to counsel” the defendant “must knowingly and intelligently forgo those
relinquished benefits.”) (citation and quotation marks omitted). The United States Supreme
Court has characterized a knowing and intelligent waiver of counsel as one made when the
defendant “knows what he is doing and his choice is made with eyes open.” Iowa v Tovar, 541
US 77, 88; 124 S Ct 1379; 158 L Ed 2d 209 (2004) (citation and quotation marks omitted). The
trial court is not required to follow any particular script or recite any special phrases when it
determines whether the defendant’s choice is made “with eyes open.” Id. Nonetheless, the
Tovar Court explained, “before a defendant may be allowed to proceed pro se, he must
be warned specifically of the hazards ahead.” Id. at 88-89. In particular, “[w]arnings of the
pitfalls of proceeding to trial without counsel . . . must be rigorously conveyed.” Id. at 89(citation, quotation marks, and alteration omitted). “[T]he existence of a knowing and intelligent
waiver must depend in each case upon the particular facts and circumstances surrounding that
case, including the background, experience and conduct of the accused.” Anderson, 398 Mich at
370.
While there is no precise formula used to determine whether a waiver is knowing,
intelligent, and voluntary, our courts have stressed the importance of creating a record on this
point, given the significance of the rights involved. See Adkins, 452 Mich at 721 (“Proper
compliance requires that the court engage, on the record, in a methodical assessment of the
wisdom of self-representation by the defendant.”). Indeed, it is important for the trial court to
engage the defendant in a colloquy as to the knowing, intelligent, and voluntary nature of the
waiver “so that the record will establish that [the defendant] knows what he is doing . . . .”
Anderson, 398 Mich at 368. See also People v Dennany, 445 Mich 412, 434; 519 NW2d 128
(1994) (opinion by GRIFFIN, J) (recognizing that while there are no precise guidelines, “the trial
court must, on the record, advise the defendant of the dangers and disadvantages of self-
representation . . . .”). “Clearly, the more searching the inquiry at this stage the more likely it is
that any decision on the part of the defendant is going to be truly voluntary . . . .” People v
Brooks, 293 Mich App 525, 538; 809 NW2d 644 (2011), vacated in part on other grounds 490
Mich 993 (2012) (citation and quotation marks omitted).
Furthermore, as articulated by our Supreme Court in Dennany, 445 Mich at 438 (opinion
by GRIFFIN, J), not only is a record of compliance with Anderson important to protect the
defendant’s rights, but a record of compliance is also important for protecting the integrity of the
trial court proceedings and to “safeguard against the opening of an appellate parachute . . . .” As
recognized in Dennany,
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Whether the prospective pro per is a naïve character who sincerely believes he
can represent himself better than can a lawyer, a cagey loser who is going to try to
reduce the trial to a shambles in the hope that somehow reversible error will creep
in, a free soul with a touch of ham, or simply someone who wants to have some
fun with the judicial establishment, the trial judge must recognize that the first
ground on appeal is probably going to be that the defendant was allowed to
represent himself without having intelligently and voluntarily made that decision.
Such are the facts of life. Therefore, pragmatically, and defensively, in addition
to the legal necessity of establishing that a defendant voluntarily and intelligently
reached this decision, the trial court should also protect itself-and the record. [Id.
at 437-438 (citations and quotation marks omitted; emphasis added).]
Turning to the instant case, we agree with defendant that the trial court failed to engage in
a meaningful assessment as to the knowing, intelligent, and voluntary nature of defendant’s
waiver. In fact, the trial court engaged in virtually no inquiry at all. The transcript reveals that
the April 19, 2012 hearing at which defendant was deemed to have waived his right to counsel
began with a request by defendant’s appointed counsel to withdraw. When asked if defendant
wanted counsel to withdraw, defendant brought up the idea of representing himself. Thereafter,
the trial court asked defendant two questions: (1) whether he knew that his recently-dismissed
attorney could not speak for him at trial; and (2) if he knew the date on which trial started.
“Instead of following the brightly illuminated path paved by the court rules” and Anderson, see
Brooks, 293 Mich App at 539, the court simply stated that it was proceeding to trial the
following week, as scheduled. The court paid no heed to the requirements of MCR 6.005(D) or
Anderson, but merely accepted defendant’s assertion at face value. This does not pass muster
under Anderson.
In finding a deficiency under the second prong of Anderson, we remain cognizant that the
applicable standards mandate only substantial compliance with the requirements found in
Anderson and MCR 6.005 and that there are no talismanic words or phrases that must be used.
See, e.g., Russell, 471 Mich at 191. We too decline to fashion a list or mandate a procedure that
must be done in each and every case. The import of our ruling, however, is that a trial court
must do something to ensure the defendant goes in with “eyes open.” It cannot sit back and do
nothing after the defendant has requested to represent himself. Simply sitting back and accepting
the defendant’s request neither warns the defendant of the coming pitfalls nor ensures that he is
entering into the precarious world of self-representation with eyes open. Compliance with the
requirements of Anderson cannot be fairly characterized as “substantial” when there is no
compliance whatsoever. We refuse to apply the “substantial compliance” standard in such a way
as to water it down to a “no compliance” standard. And, given the paucity of the trial court’s
inquiry, to affirm in this case would be to countenance a “no compliance” standard. The court
engaged in no colloquy and failed to give even passing mention to the “pitfalls of proceeding to
trial without counsel,” much less “rigorously conveyed” those pitfalls. See Tovar, 541 US at 89(citation, quotation marks, and emphasis omitted). In addition, the court did not even pay lip
service to the court rules. There was no attempt to “advise the defendant of the charge, the
maximum possible prison sentence for the offense” or any of the “risk[s] involved in self-
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representation . . . .” MCR 6.005(D)(1).5 While our courts have rejected a formalistic approach
to the warnings that must be given a defendant, they have consistently held that the court “must
make the pro se defendant aware of the dangers and disadvantages of self-representation, so that
the record will establish that he knows what he is doing and his choice is made with eyes open.”
Dennany, 445 Mich at 432 (citations and quotation omitted; emphasis added) (opinion by
GRIFFIN, J). Though it pains us to do so, we cannot, in good conscience, determine that that was
done in the instant case.
We find this case to be comparable to Brooks, 293 Mich App at 539. In that case, the
trial court failed to engage in a meaningful assessment of the defendant’s waiver of counsel. Id.
The court failed to engage in any dialogue and made no attempt to comply with the court rules;
consequently, we found that the court failed to substantially comply with Anderson and MCR
6.005(D). Id. For many of the reasons stated above, we find that the compliance in this case was
far less than substantial and not in line with what is required by Anderson and Adkins. See id.
We also find the instant case to be comparable to Dennany, 445 Mich at 447-448 (opinion by
GRIFFIN, J).6 The Court’s opinion in Dennany was a consolidation of two cases involving two
defendants—Jones and Dennany. Id. at 416-417. Less than a month before trial was to begin,
Jones stated that he wanted standby counsel to handle a pre-trial hearing, and thereafter, Jones
wanted to represent himself. Id. at 418. The court appointed counsel to handle the pretrial
hearing, then asked if Jones still wished to represent himself. Id. Jones responded in the
affirmative, and the trial court, after assuring Jones that standby counsel could help him with
certain tasks, allowed Jones to act as his own attorney. Id. at 418-419. The Court concluded that
Jones’s waiver was invalid because “the trial judge never advised [Jones] of the dangers and
disadvantages of self-representation as contemplated by Faretta[,]” “nor did he conduct the
detailed three-part inquiry expressly required by Anderson.” Id. at 447.
In arguing that we should find defendant’s waiver was knowing, intelligent, and
voluntary, the prosecutor argues that we should be swayed by the fact that defendant represented
himself in an earlier criminal trial. In determining whether a waiver was knowing, intelligent,
and voluntary, a trial court may consider a variety of “case-specific factors, including the
defendant’s education or sophistication, the complex or easily grasped nature of the charge, and
the stage of the proceeding.” Tovar, 541 US at 88. A defendant’s previous experience in and
personal involvement with the criminal justice system can indicate “that he knew what he was
doing and made his choice with eyes open.” Anderson, 398 Mich at 371. In Adkins, 452 Mich at711 n 2; 729-730, our Supreme Court found that the defendant’s waiver was knowing,
5
Not to mention that after taking defendant’s waiver at a pre-trial motion for appointed counsel
to withdraw, the trial court, contrary to MCR 6.005(E), did not make any attempt to consider the
validity of defendant’s waiver at trial. Furthermore, the trial court gave no consideration
whatsoever to the third Anderson factor—a determination of whether defendant’s self-
representation would not disrupt or unduly burden the court.
6
Although Justice Griffin’s lead opinion was joined by only two other Justices—Justice Mallett
and Justice Brickley—Justices Cavanagh and Levin concurred with the result reached in the lead
opinion, but wrote separately on unrelated matters.
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intelligent, and voluntary based, in part, on the fact that defendant had represented himself in an
earlier criminal proceeding. However, we note that unlike in the instant case, the trial judge in
Adkins engaged the defendant in a lengthy colloquy about self-representation, wherein it
described the role of counsel, the risks and hazards of self-representation, explained that the
defendant would be subject to the rules of evidence and would be expected to act with decorum
in the court, and explored the defendant’s educational and employment background. Id. at 709-
710, 729-730.
We are not convinced by the prosecutor’s argument. As an initial matter, we note that
there is no indication in the record regarding whether the trial court knew that defendant had
previously represented himself at the time it allowed him to act pro se in the instant case. And,
given the importance of the rights at stake in foregoing the assistance of counsel and forging
ahead as one’s own attorney, we question whether allowing such post-hoc justifications for
accepting a waiver of the right to counsel are advisable. See Raulerson v Wainwright, 469 US
966, 971; 105 S Ct 366; 83 L Ed 2d 302 (1984) (MARSHALL, J, dissenting) (opining that a “post
hoc rationalization of the trial court’s failure to engage in a Faretta inquiry is not only at odds
with the holding and spirit of Faretta, but also with lower court opinions construing Faretta.”).7
Regardless, we do not believe the record is adequate to show a knowing, intelligent, and
voluntary waiver in the instant case. Although defendant represented himself in an earlier
proceeding—and was apparently acquitted—he did so six years ago, and the record in regard to
this prior representation can only charitably be characterized as scant. There is no indication
whether defendant was warned of any of the risks or pitfalls of self-representation at the earlier
proceeding. There is no indication whether the trial court in the earlier proceeding engaged in
the type of colloquy that was missing in this case. There is also no indication regarding whether
defendant represented himself in the entire proceeding, or whether he only represented himself
for parts of it. And this is hardly a case where it appears, at least from the record and defendant’s
various letters written to the trial court, that defendant was well-versed in the risks involved with
self-representation or otherwise knew of the gravity of the task he sought to undertake. Cf.
Anderson, 398 Mich at 370-371 (holding that a defendant’s previous legal experience, combined
with “the sophisticated and comprehensive nature” of his reasons for dismissing appointed
counsel, showed that the defendant’s choice to proceed pro se was knowing, intelligent, and
voluntary). Again, because of the lack of any type of record or inquiry into this matter, we can at
best speculate about the impact this six-year-old experience had on defendant at the time he
waived his right to counsel in the instant case.
7
Indeed, conducting a hearing or even brief inquiry allows a trial court opportunity to ensure that
the defendant truly knows and understands what he is doing, and it provides an opportunity to
create a record for appeal to prevent the defendant from later claiming that his waiver was not
knowing, intelligent, and voluntary. See Raulerson, 469 US at 970 (MARSHALL, J, dissenting).
“As a result, once a defendant affirmatively states his desire to proceed pro se, a court should
cease other business and make the required inquiry. It is through this hearing that the right to
counsel is protected.” Id.-9-
In addition, even though defendant previously represented himself, we are again faced
with the reality that the trial court made no effort to determine whether defendant knew and
understood the pitfalls of self-representation. In this regard, the instant case is distinguishable
from Adkins, 452 Mich at 709-710, 729-730, where the trial court engaged in an extensive
colloquy with the defendant and determined, based on that colloquy and on the defendant’s prior
experience with self-representation, that the defendant’s waiver was knowing, intelligent, and
voluntary. Given the lack of inquiry by the trial court, we find the instant case is comparable to
United States v Kimmel, 672 F2d 720 (CA 9, 1982).8 In that case, the defendant had previously
represented himself “in at least one case[.]” Id. at 722. However, the trial court failed to engage
the defendant in any type of inquiry as to whether his current waiver was knowing, intelligent,
and voluntary. Id. The Ninth Circuit considered the defendant’s previous foray into self-
representation, but explained that that previous experience was not dispositive. Id. “While this
background information suggests that [the defendant] appreciated the risks of self-representation,
we need more details to conclude that he sufficiently understood them.” Id. “For example, it
would be helpful to know whether [the defendant] was informed about these risks when he
represented himself previously.” Id. Further, there was no colloquy concerning what the
defendant knew and understood at the time he surrendered his right to counsel and decided to act
as his own attorney. Id. Cf. United States v Gerritsen, 571 F3d 1001, 1011-1012 (CA 9, 2009)
(finding that the defendant’s waiver was knowing, intelligent, and voluntary based on a colloquy
with the trial court and based on the fact that the defendant had previously represented himself
“in at least six jury trials[.]”). Here, just as in Kimmel, the record lacks sufficient detail about
defendant’s previous waiver. And, the record is completely void of any inquiry into what
defendant knew at the time he made his waiver. Accordingly, notwithstanding the fact that
defendant previously represented himself, there was insufficient record evidence to determine
whether defendant’s waiver of counsel was knowing, intelligent, and voluntary.
D. REMEDY
Because of the trial court’s failure to substantially comply with Anderson, defendant is
not required to show prejudice, and reversal is required in this case. Russell, 471 Mich at 194;
People v Willing, 267 Mich App 208, 224-225; 704 NW2d 472 (2005). Accordingly, we vacate
defendant’s conviction and sentence and remand for a new trial. See id. See also Brooks, 293
Mich App at 540. However, it is with great reluctance that we arrive at this conclusion. It
appears quite likely that this was a situation where defendant was more than content to forego the
assistance of counsel and steer the ship himself. We are also aware that our decision affords a
defendant who appeared to want to represent himself a new trial specifically because he was
allowed to represent himself. If this appears baffling, it is because it should. Had the trial court
taken the time to make a record and engage defendant in even a brief colloquy, the result in this
case might very well be different. It was perhaps for this reason that our Supreme Court
admonished trial courts with regard to the importance of taking a valid waiver and ensuring that
such a waiver is knowing and intelligent:
8
While decisions from lower federal courts are not binding, we may look to them as persuasive
authority. People v Jackson, 292 Mich App 583, 595 n 3; 808 NW2d 541 (2011).
-10-
[T]he trial judge must recognize that the first ground on appeal is probably going
to be that the defendant was allowed to represent himself without having
intelligently and voluntarily made that decision. Such are the facts of life.
Therefore, pragmatically, and defensively, in addition to the legal necessity of
establishing that a defendant voluntarily and intelligently reached this decision,
the trial court should also protect itself-and the record. [Dennany, 445 Mich at
437-438 (opinion by GRIFFIN, J) (Citation and quotation marks omitted).]
See also Williams, 470 Mich at 645 (emphasizing the importance of making a record in regard to
the defendant’s right of self-representation in order to prevent the defendant from making “a
mockery of the criminal justice system and the constitutional rights sought to be protected.”)
(citation and quotation omitted).
III. CONCLUSION
We vacate defendant’s conviction and sentence and remand for a new trial. Because our
analysis of this issue is dispositive, we do not address the remainder of defendant’s arguments.
We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Kathleen Jansen
/s/ Jane M. Beckering
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