People v. Edwards , 18 Mich. App. 526 ( 1969 )

18 Mich. App. 526 (1969) 171 N.W.2d 592

PEOPLE
v.
EDWARDS

Docket No. 5,660.

Michigan Court of Appeals.

Decided July 31, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney and Robert J. Stephan, Assistant Prosecuting Attorney, for the people.

Fred D. Falkinburg, for defendant on appeal.

Before: J.H. GILLIS, P.J., and R.B. BURNS and V.J. BRENNAN, JJ.

V.J. BRENNAN, J.

Defendant, Eddie Edwards, was charged with felonious assault and tried before a Kent county circuit judge sitting without a jury. Shortly before the trial began, defendant requested the court to appoint different counsel as he was dissatisfied with his court-appointed attorney's preparation for trial. The trial court inquired into the possible causes of his discontent, found none of merit, and told defendant that his attorney was capable of conducting an adequate defense. The trial court also informed defendant that he could either dismiss his attorney and defend himself, or he could continue with said counsel.

Counsel remained and defended Edwards without his objection. The judge found Edwards guilty and subsequently sentenced him to a term of 2-1/2 to 4 years. An associate of the court-appointed attorney represented Edwards during the sentencing proceeding, as the court-appointed attorney had fallen seriously ill. Edwards did not object to the substitution.

On appeal Edwards assigns as error an alleged refusal by the trial court to permit him to choose between continuing with the appointed attorney and defending himself. This allegation is unfounded. The record does not disclose an unwillingness on the trial court's part to permit a defense in propria persona, nor does it contain an expression by defendant of a desire to represent himself. Aware of the alternatives open to him, defendant had sufficient opportunity, before the trial began to make his decision known, or, if he was undecided, to communicate his indecision to the court.

Defendant also contends the trial court erred by denying his request for a different attorney, although he does not maintain that his trial counsel was incompetent. The right to assigned counsel does not extend to counsel of the indigent defendant's own choosing. People v. LaMarr (1965), 1 Mich. App. 389. Therefore the denial of appellant's request does not constitute error.

Defendant seeks to be resentenced, claiming he was denied due process of law by reason of his trial counsel's absence during the sentencing proceeding.

The indigent defendant is entitled to the benefit of effective appointed counsel at the sentencing proceeding. People v. Dye (1967), 6 Mich. App. 217; People v. Theodorou (1968), 10 Mich. App. 409. The effectiveness of counsel's assistance at the sentencing proceeding is not determined, however, by his participation at the trial. Thus the substitution of the associate does not ipso facto constitute a denial of the right to counsel.

A need for resentencing is not apparent here. Defendant does not contend that the substitute was incompetent or unprepared. Moreover, the trial court inquired into the existence of mitigating circumstances, and defendant was responsive to the questioning.

Affirmed.

All concurred.