People of Michigan v. Gary Patrick Lewis, 322 Mich. App. 22

Defendant Gary Lewis was bound over after an unrepresented preliminary examination where he was expelled for disruptive conduct; stand-by counsel was present but not participating.
After bindover, defendant was tried and convicted by a jury of four counts of third-degree arson and one count of second-degree arson; sentenced as a fourth habitual offender to 17–30 years on each count.
On initial appeal, this Court vacated the convictions, treating the denial of counsel at the preliminary examination as a structural error requiring automatic reversal.
The Michigan Supreme Court reversed, directing harmless-error analysis per Coleman v. Alabama and remanded for this Court to identify the appropriate harmless-error framework and apply it.
This panel applied Coleman’s factors (skillful cross-examination/impeachment, discovery of State’s case, preservation of defenses, and other pretrial benefits including plea negotiation and motions) and concluded any deprivation of counsel was harmless beyond a reasonable doubt.
The Court affirmed the convictions but remanded for resentencing inquiry under Lockridge because OV 9 was scored using facts not found by the jury or admitted by defendant, affecting the guidelines range.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of counsel at preliminary examination requires automatic reversal or is subject to harmless-error review	State: Error is subject to harmless-error review under Coleman; must be tested under harmless-error framework	Lewis: Denial of counsel at preliminary exam harmed him and required reversal (structural error)	Harmless-error review applies; deprivation here was harmless beyond a reasonable doubt
Whether sentencing must be revisited after Lockridge because guideline facts were not found by jury	State: PRV/OV scoring largely correct but Lockridge requires inquiry if judge would have imposed a materially different sentence	Lewis: Sentencing violated Sixth Amendment because OV 9 was based on judge-found facts; requests remand for resentencing	Remand required for the trial court to determine whether it would have imposed a materially different sentence absent the unconstitutional constraint on discretion

Coleman v. Alabama, 399 U.S. 1 (1970) (deprivation of counsel at preliminary hearing is subject to harmless-error analysis)
Lockridge v. Michigan, 498 Mich 358 (2015) (mandating remedy where guidelines were applied mandatory and judge-found facts increased range)
People v. Carines, 460 Mich 750 (1999) (prosecution must prove preserved constitutional error harmless beyond a reasonable doubt)
People v. Bennett, 290 Mich App 465 (2010) (sufficient evidence at trial can render erroneous bindover harmless)
Ditch v. Grace, 479 F.3d 249 (3d Cir. 2007) (denial of counsel at preliminary hearing did not have substantial effect where jury was apprised of weaknesses in identification)
Thomas v. Kemp, 796 F.2d 1322 (11th Cir. 1986) (absence of counsel at preliminary hearing was harmless where successor counsel used hearing transcript to impeach)
State v. Canaday, 117 Ariz 572 (1977) (Coleman factors guide harmless-error analysis for preliminary-hearing counsel deprivation)
People v. Eddington, 77 Mich App 177 (1977) (discussing importance of counsel at preliminary hearing and relevant considerations)