People v. Richert , 216 Mich. App. 186 ( 1996 )

548 N.W.2d 924 (1996) 216 Mich. App. 186

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Thomas William RICHERT, Defendant-Appellant.

Docket No. 155564.

Court of Appeals of Michigan.

Submitted February 6, 1996, at Detroit. Decided April 2, 1996, at 9:15 a.m. Released for Publication June 11, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Elwood L. Brown, Prosecuting Attorney, and Peter R. George, Chief Assistant Prosecuting Attorney, for the People.

State Appellate Defender, by Kristina Larson Dunne and Jennifer A. Pilette, for defendant on appeal.

Before: O'CONNELL, P.J., and REILLY and SHELTON,^[*] JJ.

O'CONNELL, Presiding Judge.

In this case of first impression, we conclude that a prior plea-based misdemeanor conviction, obtained without benefit of counsel but for which no incarceration was imposed, may be used in a subsequent criminal prosecution for purposes of sentence augmentation.

In 1987, defendant pleaded guilty to the misdemeanor of second-degree retail fraud, M.C.L. § 750.356d(1); M.S.A. § 28.588(4). Acting without counsel, defendant admitted that he had shoplifted a $9.37 tape measure from a department store. The presentence investigation report prepared for the offense reflects only that defendant paid a $205 fine.

In 1992, defendant was again charged with retail fraud. Had defendant not previously been convicted of second-degree retail fraud, the circumstances surrounding the 1992 offense would again have supported a conviction of second-degree retail fraud. However, M.C.L. § 750.356c(2); M.S.A. § 28.588(3)(2), contains a recidivist provision providing that one who commits second-degree retail fraud after having previously been convicted of second-degree retail fraud is guilty of first degree retail fraud. In contrast to second-degree retail fraud, first-degree retail fraud is a felony.^[1]

Defendant, who was represented by counsel, pleaded guilty to first-degree retail fraud, admitting that he had shoplifted a $69 electric toothbrush. Immediately before sentencing, he attempted to withdraw his plea, contending that he had believed that he was pleading guilty to second-degree retail fraud. The court refused to allow him to withdraw his plea and sentenced him to a term of imprisonment of sixteen to twenty-four months.

Defendant appealed as of right. Among other allegations of error, he claimed that because the 1987 conviction constituting one of the elements of his 1992 first-degree retail fraud conviction had been obtained while he was without counsel, it could not properly be considered in establishing the factual basis for the 1992 conviction. Defendant submitted that, because of this, he should have been allowed to withdraw his plea.

On April 15, 1993, this Court remanded the matter to the circuit court, ordering the court "to allow the defendant-appellant to move to withdraw his plea...." The circuit court complied with this Court's order and then denied defendant's motion to withdraw his plea. Defendant now contends that his prior conviction was obtained in violation of his right to counsel as guaranteed by U.S. Const., Am. VI, and Const.1963, art. I, § 20, and cannot be used in the 1992 prosecution. The remainder of defendant's allegations of error having been dispensed with on remand, we address only the issue whether his 1987 conviction without counsel may be utilized for purposes of augmentation in the 1992 prosecution.

I

Our review of the record indicates that defendant did not waive any right he may have had to counsel in the 1987 proceeding.^[2] As stated in People v. Carpentier, 446 Mich. 19, 50-51, 521 N.W.2d 195 (1994) (concurrence by Riley, J.), quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70 (1962), "to validly waive [any] right to counsel, ``[t]he record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.'" Further, MCR 6.610(D)(3) provides that any right a defendant may have

to the assistance of an attorney [or] to an appointed attorney ... is not waived unless the defendant

(a) has been informed of the right; and

(b) has waived it in a writing that is made part of the file or orally on the record.

Here, the record reflects no written or oral waiver of any right defendant may have had to counsel in the 1987 prosecution, and no evidence otherwise suggests that defendant intelligently and understandingly waived any right to counsel. Carpentier, supra. In fact, the present case is similar to People v. Courtney, 104 Mich.App. 454, 456, 304 N.W.2d 603 (1981), in which the "[d]efendant was informed by the trial judge that only if he wished to stand trial did he have a right to counsel. Nowhere was defendant informed that he was entitled to counsel if he chose to plead guilty." In the 1987 district court proceedings, the sole reference to counsel is the following: "Do you understand that, if you want a trial, you'd have the right to be represented by an attorney or a Court-appointed attorney?" Obviously, this statement suggests that defendant did not waive any right he may have had to an attorney. In light of the clear language of the court rule and the pertinent case law, we conclude that defendant did not waive any right to counsel he may have had in the 1987 prosecution.

II

Because defendant's 1987 conviction was obtained without counsel or a valid waiver thereof, it is necessary that we reach the constitutional questions. However, in light of recent Supreme Court precedent, we conclude that defendant's right to an attorney under the Sixth Amendment of the United States Constitution was not violated.^[3] The Sixth Amendment of the United States Constitution provides, in relevant part, as follows: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."

The Supreme Court has construed this provision to mean "that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 2012, 32 L. Ed. 2d 530 (1972). Whether knowingly or not, the Argersinger Court shifted the focus from "criminal prosecutions," the term used in the Constitution, to "imprisonment."

In Scott v. Illinois, 440 U.S. 367, 373-374, 99 S. Ct. 1158, 1162, 59 L. Ed. 2d 383 (1979), the Court reaffirmed Argersinger, stating:

[W]e believe that the central premise of Argersinger — that actual imprisonment is a penalty different in kind from fines or

the mere threat of imprisonment— is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel.... We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. [Emphasis added.]

However, in the subsequent case of Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980), the Supreme Court ruled, for reasons not entirely clear, that despite the fact that a defendant was not entitled to representation at a proceeding where no imprisonment was ultimately imposed, a conviction resulting from that proceeding could not be used for purposes of sentence enhancement in a later prosecution. No rationale for such limitation was adopted by a majority of the Court.

The Supreme Court quickly realized the inconsistency between Argersinger and Baldasar, explicitly overruling Baldasar in Nichols v. United States, 511 U.S. ___, 114 S. Ct. 1921, 128 L. Ed. 2d 745, 752 (1994). In Nichols, the Court, following Scott, stated that "where no sentence of imprisonment [is] imposed, a defendant charged with a misdemeanor ha[s] no constitutional right to counsel." Nichols, supra, 511 U.S. at ____, 114 S.Ct. at 1925, 128 L. Ed. 2d at 752. Though the road has been winding, Nichols is currently the definitive interpretation of the Sixth Amendment in the present context.

In the case sub judice, defendant had been convicted of the misdemeanor of second-degree retail fraud before the instant prosecution. As set forth above, the sentence served was payment of $205 in fines. Thus, under Scott and Nichols, he had no right to counsel under the federal constitution, and, therefore, no right to counsel could have been infringed upon. Accordingly, considering only the federal constitution, the circuit court acted properly in considering the 1987 conviction.

III

Although we have no case on point addressing the present topic in the context of our state constitution, we hold that defendant similarly had no right to an attorney under Const.1963, art. I, § 20. The language of Const.1963, art. I, § 20, is nearly identical to that of its federal counterpart, providing that "[i]n every criminal prosecution, the accused shall have the right ... to have the assistance of counsel for his defense." Thus, we must consider whether our state constitution is to be construed more broadly than the analogous, and nearly identical, federal provision.^[4]

We find no justification to construe Const. 1963, art. I, § 20, more broadly than its federal analogue in the present context. As stated in People v. Hellis, 211 Mich.App. 634, 648, 536 N.W.2d 587 (1995), quoting People v. Perlos, 436 Mich. 305, 313, n. 7, 462 N.W.2d 310 (1990), "[u]nless there is a compelling reason to afford greater protection under the Michigan Constitution, the Michigan and federal provisions will be treated as affording the same protections." Similarly, the Supreme Court has recently iterated that "[t]he question of state constitutional adjudication, however, is not whether this Court may interpret our constitution differently than the federal constitution, the issue is whether we must." People v. Pickens, 446 Mich. 298, 315, 521 N.W.2d 797 (1994) (emphasis supplied).

Generally, when our courts have considered both U.S. Const., Am. VI, and Const. 1963, art. I, § 20, it has been done in one breath, with no distinction being drawn between the two. See, e.g., People v. Bladel (After Remand), 421 Mich. 39, 50-68, 365 N.W.2d 56 (1984), aff'd sub nom. Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L.Ed.2d 631 (1986). In fact, the only explicit statement on the matter of which this Court is aware reaches the identical conclusion: "Virtually all Michigan case law regarding the right to counsel tracks the analysis by the United States Supreme Court of the Sixth Amendment right to counsel." People v. Wright, 441 Mich. 140, 173, 490 N.W.2d 351 (1992) (Riley, J., dissenting). Further, Justice Riley in her dissent avers that "[t]here is nothing conspicuous in the language of [art. I, § 20 of] the Michigan Constitution that would distinguish it from the rights guaranteed by the federal constitution." Id., p. 177, 490 N.W.2d 351. In short, whatever differences may exist between the two constitutional provisions, they are not implicated in the present context.

Therefore, there being no compelling reason to construe Const.1963, art. I,§ 20, more broadly than its federal counterpart, U.S. Const., Am. VI, we construe the two identically. Accordingly, there being no right under the federal constitution to counsel in a misdemeanor prosecution where no incarceration is ultimately imposed, there is no such right under the Michigan Constitution.

IV

Turning, then, to the case at hand, defendant had no right to counsel under either the federal or state constitution in his 1987 prosecution because no incarceration was ultimately imposed therefor. Thus, the consideration of that prior conviction in the current prosecution impinged no constitutional right of defendant. While the court may not consider constitutionally infirm convictions in a subsequent prosecution, see People v. Miller, 179 Mich.App. 466, 469, 446 N.W.2d 294 (1989), no constitutionally infirm convictions exist in the present case. Therefore, finding no constitutional right to have been violated, we affirm.

Affirmed.

NOTES

[*] Donald E. Shelton, 22nd Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

[1] This type of sentence augmentation was recently described by this Court "as exceptional inasmuch as the Legislature provide[s] for augmented punishment of a simple misdemeanor for repeat offenders up to and including felony treatment." People v. Erwin, 212 Mich.App. 55, 65-66, 536 N.W.2d 818 (1995).

[2] The parties agree that defendant was not represented by counsel, meaning that this Court need consider only the issue of waiver.

[3] While this is the first opinion in Michigan of which we are aware applying the standard enunciated in Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994), Nichols has twice been referred to favorably by the courts of this state, People v. Hamm, 206 Mich.App. 270, 273 n. 1, 273, (Corrigan, J., concurring); 520 N.W.2d 706 (1994), and Carpentier, supra, 51, n. 10, 521 N.W.2d 195 (Riley, J., concurring). While Justice Riley, in Carpentier, questioned the applicability of Nichols in Michigan prosecutions in light of People v. Leary (On Remand), 198 Mich.App. 282, 285, 497 N.W.2d 922 (1993), given that the Court effectively overruled Leary the day after Carpentier was issued, 446 Mich. 866, 522 N.W.2d 630 (1994), we consider the reference to Nichols to be approving.

[4] Other states have addressed the identical question in the context of their respective state constitutions. See, e.g., In re Advisory Opinion to Governor, 666 A.2d 813 (R.I. 1995); Griswold v. Commonwealth, 21 Va.App. 22, 461 S.E.2d 411 (1995); State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994); Ghoston v. State, 645 So. 2d 936 (Miss. 1994); Paletta v. Topeka, 20 Kan. App. 2d 859, 893 P.2d 280 (1995). Although we have reviewed these opinions, we do not find them enlightening for purposes of construing our constitution.