Opinion
No. 162327
07-28-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank KING, Defendant-Appellant.
Joseph Toia, J. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Peter Lucido, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Emil Semaan, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Jacqueline J. McCann and Jessica L. Zimbelman) for defendant. Everett R. Jackson, in propria persona, amicus curiae.
Joseph Toia, J.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Peter Lucido, Prosecuting Attorney, Joshua D. Abbott, Chief Appellate Attorney, and Emil Semaan, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Jacqueline J. McCann and Jessica L. Zimbelman) for defendant.
Everett R. Jackson, in propria persona, amicus curiae.
BEFORE THE ENTIRE BENCH
OPINION
Bolden, J.
[1, 2] 4This case concerns whether the forfeiture doctrine articulated in People v Carines, 460 Mich. 750, 597 N.W.2d 130 (1999), applies where a self-represented defendant fails to object when the trial court fails to obtain a valid waiver of the right to counsel. We hold it does not. Absent a defendant’s valid waiver of their right to counsel, deprivation of counsel during critical stages of the criminal proceedings is a structural error subject to automatic reversal, even when a defendant formally requests to represent themself.
5I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant was charged with breaking and entering as a fourth-offense habitual offender. The trial court appointed counsel for defendant. A few months before trial, defendant moved the trial court to terminate his relationship with his appointed attorney, and he requested to proceed in propria persona. The trial court held a hearing on the motion on March 22, 2018. At the hearing, defendant claimed that defense counsel had failed to pursue his previously filed pro se motions, adequately investigate defenses he wished to pursue, and represent him in the way that he requested. Defense counsel responded that he could not endorse any of the motions that defendant had filed on his own behalf and that defendant would have to either engage a different attorney who was willing to pursue the motions or represent himself. During the hearing to determine whether defendant could represent him- self, the following exchange between the trial court and defendant occurred:
The pro se motions at issue included a motion to quash and a motion to dismiss, which defendant had filed in October and November 2017.
See, e.g., Fields v Attorney General of Maryland, 956 F.2d 1290, 1296 (CA 4, 1992) ("[The defendant] alleges that because [defense counsel] did not attend the rearraignments, he was denied counsel at a critical stage of the proceedings in violation of the Sixth Amendment …. Yet this claim concerns an alleged constitutional deprivation that occurred prior to [the defendant’s] guilty plea and is unrelated to it. Tollett therefore bars this claim."); United States v Bohn, 956 F.2d 208, 209 (CA 9, 1992) (holding that the defendant's plea waived the argument that he was deprived of Sixth Amendment counsel during an in camera hearing that determined the validity of one of his defenses); Davila v State, 831 P.2d 204, 206 (Wy, 1992) ("Denial of the right to representation does not implicate ‘the very power of the state to bring the defendant into court to answer the charge brought against him,’ and would not have prevented a trial.") (citation omitted); State v Spates, 64 Ohio St 3d 269, 273, 595 N.E.2d 351 (1992) (claim regarding denial of counsel at the preliminary hearing barred by Tollett); Powell v State, 309 Ga. 523, 528, 847 S.E.2d 338 (2020) (stating that, even if the defendant had properly requested new counsel, his claim that the trial court erred by denying his request need not be considered because, "[a]s a general rule, a guilty plea waives all defenses except that based on the knowing and voluntary nature of the plea").
The Court: How do you want to proceed, [defendant], because I’m not going to appoint another attorney. You’ve already been through several. This matter is set for trial.
[Defendant]: I’ll proceed in pro per, your Honor.
The Court: All right. I’m going to keep [defense counsel] on for advisory, as advisory counsel only.
[Defense Counsel]: Very well.
The Court: Be prepared to try your case, sir.
[Defendant]: Yes, sir. Thank you, your Honor.
Following this exchange, the trial court granted defendant’s request to represent himself. However, the trial 6court ordered defendant’s now former defense counsel to act as advisory counsel to defendant. Trial was scheduled to begin approximately six weeks later, on May 1, 2018.
[3] At a subsequent pretrial hearing held in April 2018, the prosecutor indicated that defendant did not wish to enter a plea. The prosecutor estimated that, if defendant were to be found guilty as charged, his sentencing guidelines would reflect a minimum sentence range of 72 to 240 months’ imprisonment, and the prosecutor would request that defendant be sentenced to a minimum prison term of 15 to 20 years, or 180 to 240 months. Before the hearing, the prosecutor suggested to advisory counsel that the court might consider a Cobbs agreement, which could result in a sentence running concurrently with a sentence that defendant was already serving for an unrelated conviction. However, at that time, defendant was not interested in this Cobbs agreement and wished to proceed to trial.
In People v Cobbs, 443 Mich. 276, 283, 505 N.W.2d 208 (1993), this Court held that at the request of a party, before the trial court enters a plea agreement the court may state on the record, based on the information then available to the court, "the length of the sentence that … appears to be appropriate for the charged offense." Over time, accepted plea offers in which the parties exchange specific sentencing information when formulating their plea agreement have become colloquially known as "Cobbs agreements." See, e.g., People v Brown, 492 Mich. 684, 705, 822 N.W.2d 208 (2012) (Young, C.J., concurring in part and dissenting in part) (explaining that a genuine Cobbs agreement is one in which a defendant enters a guilty plea in exchange for a specific sentence disposition by the trial court).
Although defendant pleaded no contest rather than guilty, this distinction would not appear to matter for purposes of Tollett and New, See People v Cole, 491 Mich. 325, 332 n 6, 817 N.W.2d 497 (2012) ("No-contest pleas are essentially admissions of all the elements of the charged offense and are treated the same as guilty pleas for purposes of the case in which the no-contest plea is entered."), citing New, 427 Mich. at 493 n 10, 398 N.W.2d 358.
Defendant was also on parole at the time of this offense and was advised during the proceedings that his sentence in this case and his sentence for the unrelated conviction would run consecutively with his sentence for the parole violation.
Compare United States v Oreye, 263 F.3d 669, 672 (CA 7, 2001) ("[The attorney], while labeled standby counsel, was functionally counsel, period. We are mindful of the many cases which hold or imply that appointment of standby counsel does not satisfy the Sixth Amendment, if the defendant wants to be represented …. But we do not submit gracefully to the tyranny of labels. If the defendant's counsel provides all the assistance required by the Sixth Amendment, the fact that he is called ‘standby counsel’ would not violate the amendment."); McClinton v United States, 817 A.2d 844, 859 (DC, 2003) ("In essence, as in Oreye, standby counsel for [the defendant] ‘was functionally counsel.’ "); United States v Ross, 703 F.3d 856, 871 (CA 6, 2012) ("Despite the failure of the trial court to appoint full-time counsel, participation by standby counsel during a competency hearing may be sufficient to overcome a denial of counsel claim."); with United States v Taylor, 933 F.2d 307, 312 (CA 5, 1991) (rejecting the contention that standby counsel could satisfy the constitutional right to counsel).
On the first day of trial, following jury selection, preliminary instructions, opening statements, and 7some witness testimony, defendant decided to enter a plea. He entered a no-contest plea in exchange for a Cobbs agreement that capped the minimum sentence imposed at 72 months, to be served concurrently with the sentence he was serving in his other case. Advisory counsel apparently handled the details of the sentencing arrangement that were understood to be part of the Cobbs agreement. The plea colloquy included multiple references to the advisory attorney as defendant’s "attorney," although the court also noted that defendant represented himself. At the sentencing hearing, advisory counsel indicated that he had spent a great deal of time working out the Cobbs agreement, and defendant was sentenced consistent with that agreement.
Defendant sought leave to appeal his conviction, and the Court of Appeals denied his delayed application for leave to appeal. People v King, unpublished order of the Court of Appeals, entered February 20, 2019 (Docket No. 346559). Defendant then sought leave to appeal in this Court, and we remanded the case to the Court of Appeals as on leave granted "to address: (1) whether the defendant’s waiver of his Sixth Amendment right to counsel was constitutionally valid; and (2) if so, what effect, if any, the defendant’s subsequent no contest plea had on that waiver." People v King, 505 Mich. 851, 934 N.W.2d 279 (2019).
On remand, the Court of Appeals affirmed. People v King, unpublished per curiam opinion of the Court of Appeals, issued October 15, 2020, 2020 WL 6117685 (Docket No. 346559). To obtain relief, the Court of Appeals determined that defendant was required to establish: (1) the error had occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial 8proceedings independent of defendant’s innocence. Id. at 7, citing Carines, 460 Mich. at 763-764, 597 N.W.2d 130.
Applying the Carines test, the Court of Appeals held that the first three factors of the test were met. The purported waiver of counsel was invalid and thus constituted plain error because the trial court had "failed to comply with the substance of [People v Anderson, 398 Mich. 361, 247 N.W.2d 857 (1976),] and the court rule, [MCR 6.005(D)] … ." King, unpub. op. at 8. The plain error also affected defendant’s substantial rights. See id. However, the panel opined that the "underlying purposes" of the right to counsel were upheld during the Cobbs plea because "defense counsel played a significant role in the plea process" and thus defendant had "actually reaped the benefits of being represented by counsel despite purporting to represent himself." Id. at 10. Further, defendant showed some knowledge of his rights by citing Faretta v California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), and echoing this Court’s language in Anderson, 398 Mich. at 367-368, 247 N.W.2d 857. For these reasons, the panel held that the fourth prong had not been met, recognizing that "[r]eversal is not justified under the fourth Carines prong if the ‘underlying purposes’ of the right at issue have been alternatively upheld." King, unpub. op. at 8-9, quoting People v Cain, 498 Mich. 108, 119, 869 N.W.2d 829 (2015). Judge Swartzle concurred dubitante, agreeing that the majority correctly applied the Carines plain-error test but noting the absurdity of requiring a defendant, who is requesting to proceed in propria persona, to object in order to preserve the 9appellate right to challenge the waiver of legal counsel. See King (Swartzle, J., concurring dubitante), unpub. op. at 1-2.
The Court of Appeals also recognized that the mere presence of "standby" or advisory counsel did not cure the error in this case. See King, unpub. op. at 10 n. 6.
To its credit, the majority forthrightly acknowledges that its opinion does not address whether defendant understood his right to counsel and validly waived that right at the plea hearing. See ante at 679-80. And the majority also appears to leave open the issues I have raised here for another day. See id. at 679 n 7.
Defendant sought leave to appeal in this Court. In response, we ordered oral argument on the application, directing the parties to address (1) whether the Court of Appeals erred by concluding that the trial court’s failure to comply with the requirements of Anderson and MCR 6.005(D) did not warrant reversal, and (2) whether the standard of review for unpreserved constitutional errors from Carines should apply when a criminal defendant argues on appeal that their waiver of counsel was invalid. People v King, 508 Mich. 938, 938-939, 957 N.W.2d 797 (2021).
II. ANALYSIS
A. FORFEITURE v WAIVER
[4–9] The United States Supreme Court has made clear that "[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’ " United States v Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed. 2d 508 (1993), quoting Johnson v Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver extinguishes the right, as well as any right to pursue an alleged error on appeal. See Olano, 507 U.S. at 733, 113 S.Ct. 1770; see also People v Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000) ("One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.") (quotation marks and citation omitted). On the other hand, when a litigant fails to timely assert a right or object to an alleged error, it is deemed to be 10 forfeited, but the error is not extinguished. Id. at 215, 612 N.W.2d 144; Olano, 507 U.S. at 733, 113 S.Ct. 1770. Notably, preserved structural errors are a limited class of constitutional errors that are not subject to harmless-error analysis, see Arizona v Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed. 2d 302 (1991), but are instead subject to automatic reversal, Neder v United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed. 2d 35 (1999).
"[T]he defining feature of a structural error is that it affects the framework within which the trial proceeds, rather than being simply an error in the trial process itself." Weaver v Massachusetts, 582 U.S. 286, 295, 137 S.Ct. 1899, 198 L.Ed. 2d 420 (2017) (quotation marks, citation, and brackets omitted). "The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial." Id. at 294-295, 137 S Ct 1899.
[10, 11] As properly recognized by the Court of Appeals, unpreserved constitutional errors, including structural errors, are reviewed for plain error affecting substantial rights. See Carines, 460 Mich. at 764, 597 N.W.2d 130. This Court recently modified the Carines "plain error" test as applied to unpreserved structural errors in People v Davis, 509 Mich. 52, 67-68, 983 N.W.2d 325 (2022). In addressing the third prong, also known as the prejudice prong, the Davis Court held that "a forfeited structural error creates a formal presumption that this prong of the plain-error standard has been satisfied." Id. at 75, 983 N.W.2d 325. "The formal rebuttable presumption in cases of forfeited structural error … shift[s] the burden to the prosecutor to demonstrate that the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceeding." Id. at 76, 983 N.W.2d 325. In such instances, the prosecutor must present specific facts that "affirmatively demonstrate that, despite the error, the overall fairness, integrity, and reputation of the trial court proceedings 'were preserved." Id.
11B. RIGHT TO COUNSEL
[12–16] The right to the assistance of counsel at all critical stages of criminal proceedings for an accused facing incarceration is protected by the Sixth Amendment, applicable to the states through the Fourteenth Amendment. People v Williams, 470 Mich. 634, 641, 683 N.W.2d 597 (2004), citing Maine v Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 88 L.Ed. 2d 481 (1985), and Gideon v Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963); see also U.S. Const., Ams. VI and XIV. The right to self-representation is also protected by the Sixth and Fourteenth Amendments. See Faretta, 422 U.S. at 818-821, 95 S.Ct. 2525. Additionally, both the right to self-representation and the right to counsel are protected by the Michigan Constitution. Const. 1963, art. 1, §§ 13 and 20. Trial is a critical stage of criminal proceedings. People v Russell, 471 Mich. 182, 187-188, 684 N.W.2d 745 (2004). A plea hearing also qualifies as a critical stage. Iowa v Tovar, 541 U.S. 77, 87, 124 S.Ct. 1379, 158 L.Ed. 2d 209 (2004).
[17–21] Choosing self-representation necessarily requires waiving the right to be represented by counsel. Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Therefore, the Constitution requires a defendant to give a "knowing, voluntary, and intelligent" waiver of the right to counsel in order to exercise the right to self-representation. Tovar, 541 U.S. at 87-88, 124 S.Ct. 1379. Before granting a defendant’s request to proceed in propria persona, a trial court must substantially comply with the factors set forth in Anderson, 398 Mich. at 367-368, 247 N.W.2d 857, and MCR 6.005(D) for a defendant to effectuate a valid waiver of the right to counsel. Russell, 471 Mich. at 191-192, 684 N.W.2d 745. Under Anderson, 398 Mich. at 367-368, 247 N.W.2d 857, the trial court must find that the following three factors have been met: (1) the defendant’s request to represent themself is unequivocal, (2) the defendant is asserting the right knowingly, intelligently,12 and voluntarily after being informed 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." Additionally, MCR 6.005(D) provides that the trial 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.
C. FORFEITURE OF THE RIGHT TO COUNSEL
The first issue we address is the applicable standard of review when a defendant requests to represent themself but fails to object to an invalid waiver of their right to counsel. It is undisputed that defendant’s waiver of his right to counsel was invalid.
The prosecution urges this Court to review the issue as a request to withdraw a plea and apply the standard articulated for such requests as discussed in People v Cole, 491 Mich. 325, 817 N.W.2d 497 (2012), because defendant waived his right to trial and elected to plead no contest pursuant to a Cobbs agreement. We decline to review the issue in the manner suggested by the prosecutor. The issue raised in this appeal concerns the invalid waiver of the right to counsel (which occurred both before trial was completed and before the plea agreement was entered), not defendant's ability to withdraw his plea. See King, 508 Mich. at 939, 957 N.W.2d 797. Alternatively, the prosecution argues that the modified plain-error standard articulated in Davis, 509 Mich. at 67-68, 983 N.W.2d 325, applies. As discussed below, because defendant’s claim of error is preserved, this Court's recent modification of the standard for reviewing unpreserved structural errors in Davis does not apply.
13The crucial question here is whether a defendant may forfeit the right to counsel. In People v Vaughn, 491 Mich. 642, 654-655, 821 N.W.2d 288 (2012), this Court addressed the application of the Carines forfeiture rule to the right to public trial. We held that the Carines forfeiture doctrine was applicable to unpreserved issues involving violations of the Sixth Amendment public-trial right because, although structural in nature, this right was not one of those few rights that cannot be waived absent informed personal consent. See id. at 655-657, 664, 821 N.W.2d 288.
In reaching this conclusion, the Vaughn Court distinguished between constitutional rights that require an affirmative invocation and the narrow class of constitutional rights that are preserved absent a personal and informed waiver:
While certain constitutional rights are preserved absent a personal waiver, those rights constitute a narrow class of foundational constitutional rights that "are of central importance to the quality of the guilt-determining process and the defendant’s ability to participate in that process." Indeed, each of the foundational constitutional rights that are preserved absent a personal waiver necessarily implicates a defendant’s other constitutional rights. For example, the purpose of the right to counsel "would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution" because it is counsel’s responsibility to "protect an accused from conviction resulting from his own ignorance of his legal and constitutional lights …. " Because the right to counsel "invokes, of itself, the protection of a trial court," preservation of the right does not require an affirmative invocation. [Id. at 655-657, 821 N.W.2d 288 (citations omitted).]
Vaughn concluded that a violation of the right to a public trial, which was at issue in that case, was not an error that " ‘necessarily affect[ed] qualitatively the 14guilt-determining process or the defendant’s ability to participate in the process’ " and therefore was subject to preservation requirements. Id. at 657, 821 N.W.2d 288 (citation omitted). However, as stated, Vaughn recognized at the outset that a violation of the right to counsel is an error that does not require preservation. See also id. at 656 n 42, 821 N.W.2d 288 (stating that under New York v Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed. 2d 560 (2000), violation of the right to counsel is a structural error that "fall[s] outside the ordinary issue preservation requirements because [it] require[s] a personal waiver"); Vaughn, 491 Mich. at 656 n 44, 821 N.W.2d 288 (stating that under Hill the right to counsel "exist[s] outside our ordinary preservation requirements").
[22, 23] According to Vaughn, the right to counsel, unlike the right to a public trial, is a fundamental right that cannot be forfeited and is preserved "absent a personal waiver." See id. at 655-657, 821 N.W.2d 288 ("Because the right to counsel ‘invokes, of itself, the protection of a trial court,’ preservation of the right does not require an affirmative invocation.") (citation omitted). Accordingly, a defendant need not affirmatively invoke their right to counsel in order to preserve that right— the right is preserved absent a personal and informed waiver, and it is not forfeitable. Therefore, without a valid waiver, a defendant remains entitled to the right to counsel for every critical stage of criminal proceedings. See Russell, 471 Mich. at 189-190, 684 N.W.2d 745 ("[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.") (citation omitted).
[24] Requiring a defendant who did not make a knowing and intelligent waiver of the right to counsel to recognize15 and object to their own waiver as invalid would be an impractical rule. Because "forfeiture is the failure to make the timely assertion of a right," and the right to counsel is the "standard" and "does not require an affirmative invocation," it defies logic to argue that such a right could be forfeited. See id.; Olano, 507 U.S. at 733, 113 S.Ct. 1770; Vaughn, 491 Mich. at 657, 821 N.W.2d 288. In other words, when there is an invalid waiver of a defendant’s right to counsel, the defendant remains entitled to full representation at each critical stage of the criminal proceedings.
In People v Lewis, 501 Mich. 1, 3-4, 903 N.W.2d 816 (2017), this Court considered whether deprivation of the right to counsel during a preliminary examination entitled a defendant to automatic reversal. We concluded that Coleman v Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970), controlled, narrowly holding that denial of counsel at a preliminary examination is not a structural error and is, therefore, subject to harmless-error review. Lewis, 501 Mich. at 3-4, 9-10, 903 N.W.2d 816. Importantly, Lewis differentiated the denial of counsel at a preliminary examination from denial of counsel at other critical stages of the proceedings, including the denial of counsel at trial. See id. at 10-11, 903 N.W.2d 816 ("Coleman does not permit us to presume that a defendant, who was ultimately convicted at an otherwise fair trial, suffered no harm from the absence of counsel at his preliminary examination.").
[25] Lewis is categorically different from the instant case. The defendant in Lewis was only denied counsel during a preliminary examination. Id. at 3, 903 N.W.2d 816. Harmless-error analysis applied in Lewis because after defendant’s preliminary examination, he was found guilty beyond a reasonable doubt in an otherwise fair trial. Id. at 11, 903 N.W.2d 816. Here, because defendant’s invalid waiver of 16counsel occurred before his trial began, defendant was denied his right to counsel during most of the critical stages of the proceedings. See Williams, 470 Mich. at 641, 683 N.W.2d 597; Russell, 471 Mich. at 187-188, 684 N.W.2d 745; Tovar, 541 U.S. at 87, 124 S.Ct. 1379.
As a result of the invalid waiver of his right to counsel, defendant was deprived of his right to counsel, at a minimum, during (1) pretrial preparations, including at least one pretrial hearing, (2) jury selection, (3) opening statements, (4) judge’s instructions, and (5) direct and cross-examination of key witnesses. Because defendant was deprived of his right to counsel at critical stages of the criminal proceedings, including at trial, the error is subject to automatic reversal. See Gideon, 372 U.S. at 344, 83 S.Ct. 792; Russell, 471 Mich. at 194 n 29, 684 N.W.2d 745 ("The complete denial of counsel at a critical stage of a criminal proceeding is a structural error that renders the result unreliable, thus requiring automatic reversal.").
[26–28] We are unpersuaded by the prosecutor’s remaining arguments that defendant is not entitled to relief because any error was extinguished by defendant’s eventual plea agreement and because his standby counsel acted as his trial counsel for Sixth Amendment purposes. As recognized by Judge Swartzle, a valid no-contest plea at a later stage of proceedings "does not necessarily or fully cure the deficiencies at the earlier waiver-of-counsel stage, especially with respect to whether defendant should have known to object to the deficient waiver." King (Swartzle, J., concurring dubitante), unpub. op. at 2. Indeed, the focus of the plea hearing was to ensure the plea was understanding, voluntary, and accurate. See MCR 6.302. Whether defendant understood his right to counsel and properly waived that right in accordance with Anderson and 17 MCR 6.005(D) was not addressed. Further, al- though counsel was present at trial and the plea hearing, he served as standby counsel, which is not constitutionally sufficient. See People v Lane, 453 Mich. 132, 138, 551 N.W.2d 382 (1996) ("The presence of standby counsel does not legitimize a waiver-of-counsel inquiry that does not comport with legal standards. The presence of standby counsel is not recognized as an exception to the Anderson or court rule requirements."), citing People v Dennany, 445 Mich. 412, 446, 519 N.W.2d 128 (1994) (opinion by Griffin, J.).
Whether entry of a no-contest plea can be considered valid when the earlier proceedings have been so corrupted by deprivation of counsel without a valid waiver is a question that this opinion need not decide.
III. CONCLUSION
[29] Defendant was not required to affirmatively invoke his Sixth Amendment right to counsel in order to preserve that right. Defendant was not required to object to the invalid waiver of the right to counsel, and the Carines forfeiture doctrine does not apply. Because defendant’s waiver of his right to counsel was invalid, he was deprived of counsel during significant portions of the critical stages in the proceedings, including trial, and the error is subject to automatic reversal. Accordingly, we reverse the Court of Appeals judgment and remand to the trial court for further proceedings.
Clement, C.J., and Zahra, Bernstein, Cavanagh, and Welch, JJ., concurred with Bolden, J.
Viviano, J. (concurring dubitante).
In our adversary system, courts are largely constrained to the issues presented and developed by the parties. It is generally inappropriate for a court to reframe a case, raising new 18issues and arguments. For this reason, I am constrained to concur in the majority opinion—but I do so dubitante, which is to say that I have doubts about the soundness of the outcome but am unwilling, given the issues and arguments before us, to conclude it is wrong. See Black's Law Dictionary (11th ed) (explaining that "dubitante" is a "term … placed in a law report next to a judge’s name, indicating that the judge doubted a legal point but was unwilling to state that it was wrong").
In particular, I question whether a different result would have been reached had two additional issues or arguments been properly raised. It appears to me that because defendant’s conviction arose from a plea of no contest, to reverse the conviction we must find some error in or affecting the plea. The majority reverses on the basis of an error—the invalid waiver of the right to counsel prior to the partial trial— that occurred before the plea. The majority does not consider whether this error had any relationship to defendant’s plea in this case. Generally, however, a defendant’s guilty plea bars the defendant from obtaining relief based on constitutional violations that occurred prior to the plea:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [previous caselaw]. [Tollett v Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed. 2d 235 (1973).]
19Thus, when a defendant enters a plea of guilty or no contest, any errors that might have impacted the question of factual guilt—constitutional or otherwise—are rendered irrelevant. See Menna v New York, 423 U.S. 61, 62 n 2, 96 S.Ct. 241, 46 L.Ed. 2d 195 (1975) ("The point of [Tollett and its progeny] is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established.").
This Court, in People v New, 427 Mich. 482, 491, 398 N.W.2d 358 (1986), recognized the Tollett rule and explained further that
a defendant, after pleading guilty, may raise on appeal only those defenses and rights which would preclude the state from obtaining a valid conviction against the defendant. Such rights and defenses "reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial … ." [People v] White, 411 Mich[ 366,] 398[, 308 N.W.2d 128 (1981)] (Moody, J., concurring in part and dissenting in part.) In such cases, the state has no legitimate interest in securing a conviction. On the other hand, where the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant’s factual guilt, it is subsumed by defendant’s guilty plea.
Under this logic, numerous courts have held that claims based on an earlier deprivation of counsel are 20waived when a defendant decides to plead guilty and the plea is not related to the deprivation.1a
In the present case, this issue and the relevant authorities have not been raised or discussed.2a Moreover, it is not entirely clear how they would apply. It would seem that the earlier deprivation of counsel at trial could be waived by defendant’s subsequent plea. But defendant observes that he was never given a proper advisement of his right to counsel, either before trial or as part of the plea process. It might be contended, therefore, that the deprivation related to or affected defendant’s decision to plead no contest. 21 Tollett, of course, does not prevent a defendant from challenging the voluntariness of the plea. Thus, even if the deprivation of counsel during the partial trial was waived under Tollett, defendant may argue—and indeed in this case has argued—that the deprivation of counsel during the partial trial created a separate error by rendering the plea involuntary.
On the other hand, defendant had standby counsel who actively participated during the plea. The majority relies on People v Lane, 453 Mich. 132, 138, 551 N.W.2d 382 (1996), for the proposition that standby counsel cannot act as Sixth Amendment counsel. But in Lane, we merely said that "[t]he presence of standby counsel does not legitimize a waiver-of-counsel inquiry that does not comport with legal standards. The presence of standby counsel is not recognized as an exception to" the rules requiring advisement of the defendant’s rights to counsel. Id. at 138, 551 N.W.2d 382 (emphasis added). We did not consider whether standby counsel who actively participated in the proceedings could satisfy the Sixth Amendment light to counsel. The federal circuit courts appear to be split on this question, but those that have found standby counsel to be constitutionally sufficient have raised strong arguments worth our consideration in an appropriate case.3a The Court of 22Appeals has apparently sided with those courts holding that standby counsel is always insufficient to satisfy the Constitution. See People v Willing, 267 Mich App 208, 227-228, 704 N.W.2d 472 (2005). The prosecutor has not addressed the relevant caselaw or otherwise developed this issue such that we can decide it now. But even assuming that the standby counsel here was constitutionally sufficient, we would need to determine whether defendant’s no-contest plea waived or cured the earlier deprivation of counsel.
My own research has discovered no case involving the precise circumstances before us. Given the lack of guidance on these complicated matters and, more importantly, the parties’ failure to address the relevant issues, I agree with the result reached by the majority on the questions we confront today. But because those questions are the narrow ones presented by the parties, I see nothing in the majority opinion that would foreclose the arguments I have sketched above.4a For these reasons, I concur dubitante.