Opinion
No. 330685
02-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KEVIN SCOTT BURKHARD II, Defendant-Appellant.
UNPUBLISHED Berrien Circuit Court
LC No. 2015-001005-AR Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ. PER CURIAM.
Defendant appeals by leave granted the circuit court's ruling affirming his misdemeanor conviction of domestic violence, MCL 750.81(2), which was rendered by a jury in a district court trial. The district court sentenced defendant to 30 days in jail for the conviction. We reverse and remand for further proceedings.
Approximately two weeks before trial, a status conference was held in which defendant indicated that he wished to fire his court-appointed attorney and proceed with a search to locate and hire a private attorney. The district court terminated appointed counsel's representation of defendant, informed defendant that he was free to hire a private attorney, and told defendant that he also had the option of representing himself, which the court viewed as a "bad idea unless you've gone to law school[.]" The district court denied defendant's request for an adjournment of the trial date. On the day of trial, defendant appeared without counsel, and the district court had defendant represent himself at the trial. At no point in the district court proceedings did defendant make an affirmative statement that he wished to represent himself, nor did the district court make any inquiry into whether defendant desired to represent himself. Indeed, the trial transcript reflects that there was no discussion whatsoever between the district court and defendant concerning waiver of the right to counsel in relationship to self-representation; defendant simply began conducting the trial pro se. In preliminary instructions to the jury, the district court explained to the jurors that a defendant can hire an attorney, can have one appointed by the court if indigent, or can choose to exercise his or her constitutional right of self-representation. The trial commenced, with defendant struggling mightily to comport with the court rules and rules of evidence. He was twice held in contempt by the district court. The jury ultimately convicted defendant of domestic violence, and the circuit court affirmed the conviction, rejecting defendant's arguments that the district court erred by denying the request for an adjournment and by failing to obtain a valid waiver of the right to counsel.
The district court advised defendant that it could not give him legal advice during the trial, although the court did inform defendant that it would prompt him when it was defendant's turn to speak.
On appeal, defendant argues, in part, that the circuit court erred in failing to vacate the conviction, given that the district court did not obtain a valid waiver of the right to counsel. We agree. "The Sixth Amendment of the United States Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, provides that '[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence.' " People v Kammeraad, 307 Mich App 98, 122; 858 NW2d 490 (2014) (citation omitted; alteration and ellipsis in original). "The analogous provision of the Michigan Constitution provides that '[i]n every criminal prosecution, the accused shall have the right to . . . have the assistance of counsel for his or her defense[.]' " Id., quoting Const 1963, art 1, § 20 (alterations and ellipsis in original). "[U]nder both the federal and state constitutions, a defendant accused of a misdemeanor is entitled to appointed trial counsel only if 'actually imprisoned.' " People v Reichenbach, 459 Mich 109, 120; 587 NW2d 1 (1998) (citation omitted). In this case, a jail sentence was imposed by the district court on the domestic violence conviction.
Defendant also contends that the circuit court erred in not reversing the district court's ruling regarding an adjournment. As we agree with defendant's argument with respect to waiver of counsel and self-representation, it is unnecessary for us to examine and resolve the adjournment issue. --------
"The right of self-representation is secured by both the Michigan Constitution, Const 1963, art 1, § 13, and by statute, MCL 763.1." People v Dunigan, 299 Mich App 579, 587; 831 NW2d 243 (2013). "The right of self-representation is also implicitly guaranteed by the Sixth Amendment of the United States Constitution." Id. "[A]lthough the right to counsel and the right of self-representation are both fundamental constitutional rights, representation by counsel, as guarantor of a fair trial, 'is the standard, not the exception,' in the absence of a proper waiver." People v Russell, 471 Mich 182, 189-190; 684 NW2d 745 (2004) (citations omitted). The Russell Court reviewed its earlier decision in People v Anderson, 398 Mich 361; 247 NW2d 857 (1976), observing:
In People v Anderson, this Court applied the . . . standard for self-representation and established requirements regarding the judicial inquest necessary to effectuate a valid waiver and permit a defendant to represent himself. Upon a defendant's initial request to proceed pro se, a court must determine that (1) the defendant's request is unequivocal, (2) the defendant is asserting his right knowingly, intelligently, and voluntarily through a colloquy advising the defendant of the dangers and disadvantages of self-representation, and (3) the
defendant's self-representation will not disrupt, unduly inconvenience, and burden the court and the administration of the court's business. [Russell, 471 Mich at 190.]
The United States Supreme Court has held that waiver of the right to counsel must be done knowingly and intelligently, with sufficient awareness of the pertinent circumstances. Iowa v Tovar, 541 US 77, 81; 124 S Ct 1379; 158 L Ed 2d 209 (2004). "In addition, it is a long-held principle that courts are to make every reasonable presumption against the waiver of a fundamental constitutional right, including the waiver of the right to the assistance of counsel." Russell, 471 Mich at 188 (citations omitted).
Here, there was no express request by defendant for self-representation, let alone an unequivocal request. And thus there was no determination by the district court that there was an unequivocal request by defendant to proceed pro se. Further, at the trial, there was no colloquy between the district court and defendant on the dangers and disadvantages of self-representation, as necessary to show that defendant was asserting his right to self-representation knowingly, intelligently, and voluntarily. To the extent that it is even proper to contemplate remarks made earlier at the status conference, at which point defendant was focused on hiring his own attorney, the district court's brief comment that self-representation is a "bad idea unless you've gone to law school" was woefully inadequate to meet constitutional requirements.
Moreover, MCR 6.610(D)(3)(b), which pertains to criminal procedure in the district court, see MCR 6.001(B), provides that the right to counsel or to an appointed attorney "is not waived unless the defendant . . . has waived it in a writing that is made a part of the file or orally on the record." In this case, there is no written waiver in the file, nor did defendant orally waive his right to counsel on the record at any time. The circuit court's conclusion that defendant orally waived his right to trial counsel at the status conference by simply telling the district court that he wished to fire his attorney is faulty to say the least. In fact, at that time, defendant hoped to procure a private attorney, absent any mention whatsoever by defendant of self-representation. In sum, there was no oral waiver of the right to counsel, nor even an attempt by the district court to obtain an oral waiver, at the status conference or the trial itself.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Brock A. Swartzle