Opinion
No. 116744.
January 26, 2001.
COA: 205118, Ogemaw CC: 96-001114-FH.
On order of the Court, the delayed application for leave to appeal from the January 4, 2000 decision of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
People v Ingram, 439 Mich. 288, 296-297, 484 N.W.2d 241 (1992), holds that, with respect to prior plea convictions, a violation of the right to counsel is subject to collateral attack. However, Ingram also holds that a mere procedural violation in accepting a plea is not subject to collateral attack. Id. at 294-295, 484 N.W.2d 241.
Here, the claim is that one of defendant's underlying pleas was taken in violation of the requirements of MCR 6.610(E) because the judge did not specifically inform him of the right to counsel on the record when taking the plea. However, the judge accepting the plea specifically confirmed that defendant had read the advice of rights form (which stated that he was entitled to an appointed attorney if indigent) and specifically confirmed that he was waiving his right to an attorney. Under these circumstances, I believe it is clear that defendant intelligently waived the right to counsel. Here, the failure to specifically inform defendant of the right to appointed counsel was a procedural violation of MCR 6.610(E), but not an actual violation of the right to counsel. Under Ingram, such procedural violations are not subject to collateral attack.
I would grant leave in this case to consider the argument advanced in Judge Danhof's Court of Appeals dissent.
Defendant alleges that one of his underlying convictions for OUIL is constitutionally invalid because, during the proceeding, he did not waive his right to an attorney. He did sign a form notifying him of his right to an attorney. However, the trial judge did not inquire of him whether he understood he had that right. He merely asked defendant if he wished to waive it.
I agree with Judge Danhof that the form does not fulfill the requirements of MCR 6.610(E)(2)(a) that obliges the judge to inform a defendant of his right to an attorney. MCR 6.610(E) provides that a defendant may be informed of certain trial rights by means of a form, but the right to an attorney is not one of them. The failure to satisfy the court rule is an indicator that adequate advice of rights was not made. If defendant was not adequately informed of his right to counsel, he could not have waived it.
The substance of defendant's argument is that his constitutional right to counsel was violated. A defendant may collaterally attack his earlier plea conviction if it was taken in violation of this right. People v. Ingram, 439 Mich. 288, 296-297, 484 N.W.2d 241 (1992).
We should grant leave in this case to clarify the court rule. We should determine whether use of a form in obtaining a waiver of the right to an attorney complies with MCR 6.610(E)(2)(a) and a defendant's right to counsel.