Lead Opinion
Defendant pleaded guilty of unauthorized use of a telephone credit card for telephone services of a value over $100, MCL 750.219a; MSA 28.416(1), and was sentenced to thirty-two to forty-eight months’ imprisonment. We affirm her conviction, but remand for resentencing before a different judge.
i
This case arises from a series of unauthorized telephone calls made by defendant using the calling card of Karen Sharon. Karen befriended defendant after meeting her through a homeless program sponsored by Karen’s church. On an unspecified date, defendant and Karen’s daughter, Tammy, took a third party to a hospital. While at the hospital, Tammy made a telephone call using Karen’s telephone calling card. Defendant later added the personal identification number from the calling card to Karen’s telephone number and made a series of unauthorized telephone calls.
Defendant was charged with unauthorized use of a telephone credit card and with being a fourth-offense habitual offender. On June 28, 1993, defendant pleaded guilty before acting Bay Circuit Judge John C. Learning of unauthorized use of a telephone credit card. In exchange for the plea, the prosecutor dismissed the supplemental information charging defendant as an habitual offender.
After the guilty plea was taken, but before sentencing, Bay Circuit Judge Eugene C. Penzien sua sponte entered an order relieving defendant’s attorney, public defender Robert K. Hess, of his representation of defendant. The July 9, 1993, order provides in pertinent part:
Robert K. Hess is presently appointed by the court to represent the defendant in the above action. Mr. Hess has engaged in a course of unprofessional, insolent and contemptuous behavior involving making numerous unsubstantiated allegations of personal impropriety and lack of integrity on the part of the undersigned judge. Mr. Hess has engaged in these attacks by reducing them to writing and distributing them to other persons who have no legal interest in the matters. The Court is satisfied that continuing Mr. Hess as a court-appointed attorney in the above cause may cause the defendant to be concerned that [her] interests would be lost sight of and may lead to the appearance of injustice.[1 ]
Judge Penzien then appointed attorney Shawn M. Sutton to replace Hess.
Defendant still requested that Hess be reappointed to represent her. Judge Penzien then reiterated that Hess had routinely called him a liar. Judge Penzien also stated that Hess frequently misrepresented the law to him and that he would have to treat everything Hess said as suspect and "check it all out.” Judge Penzien then indicated that he would provide defendant with another attorney if she believed that Sutton was not adequately representing her. Judge Penzien indicated that, as an alternative, he could provide defendant with additional time to get comfortable with Sutton if she desired such extra time. Defendant then informed the judge that she was comfortable with Sutton and that she wanted to proceed with sentencing.
On September 13, 1993, Judge Penzien sentenced defendant to thirty-two to forty-eight months’ imprisonment. Defendant now appeals as of right, contending that Judge Penzien abused his discretion in removing sua sponte Hess as her counsel and that the trial court improperly based her sentence on a subsequent pending charge.
ii
Defendant’s first issue implicates the right to
A court may remove a defendant’s attorney on the basis of gross incompetence, physical incapacity, or contumacious conduct. People v Arquette,
For the reasons set forth in our opinion in Johnson, the Sixth Amendment right to counsel is implicated in this case where the trial court improperly removed defendant’s court-appointed counsel at a critical stage in the proceedings. A "harmless-error” analysis is not applicable where defendant’s Sixth Amendment right to counsel was violated by the trial court. A "prejudice” standard simply does not apply.
Further, in the present case, defendant specifically objected to the removal of Hess by Judge Penzien. Judge Penzien first removed counsel where defendant did not request this action and where defendant specifically objected to it. After defendant objected, Judge Penzien called defendant’s counsel a liar and stated that he could not trust Hess and that Hess frequently misrepre
Accordingly, we follow those cases that have heid that a trial court’s arbitrary removal of a defendant’s appointed trial counsel during a critical stage in the proceedings, over the objection of the defendant, violates the defendant’s Sixth Amendment right to counsel. Smith v Superior Court of Los Angeles Co, 68 Cal 2d 547, 562; 68 Cal Rptr 1;
Finally, as we noted in Johnson, the fact that substitute counsel may have performed adequately at sentencing is of no consequence. The trial court improperly removed court-appointed counsel over the objection of the attorney and defendant before sentencing. This issue relates to an arbitrary and improper infringement of the Sixth Amendment right to counsel. This is not a claim of ineffective assistance of counsel where a showing of prejudice
Finding that the trial judge improperly removed court-appointed counsel and that such an action is not subject to analysis for harmless error or prejudice, we remand for resentencing before a different judge. People v Evans,
in
Defendant also claims that the sentencing judge could not consider pending charges in another county where those charges had not been fully adjudicated at the time of sentencing in this matter. However, a sentencing judge may consider a pending charge in sentencing a defendant. People v Ewing (After Remand),
We affirm defendant’s conviction, but remand for resentencing before a different judge. If defendant requests that attorney Robert Hess represent her at resentencing, then the trial court shall appoint Hess to represent her. No further jurisdiction is retained in this matter.
Notes
It is apparent, however, that Judge Penzien removed Hess from his representation of defendant because Hess was challenging Judge Penzien’s "interim investigation orders.” This Court held in another case that those orders were both constitutionally and statutorily impermissible. People v Johnson,
Concurrence Opinion
(concurring in part and dissenting in part). The majority finds that the circuit court did not have a justifiable basis to order the removal of defense counsel. On this point, I agree and join in that portion of the Court’s opinion. However, my colleagues find that the removal of appointed counsel is a structural error that infects the entire trial and that therefore requires automatic reversal. I respectfully dissent from that finding.
In People v Anderson (After Remand),
the total deprivation of the right to trial counsel, an impartial judge, excluding grand jury members who are the same race as defendant, denial of the right to self-representation, denial of the right to a public trial, and a constitutionally improper reasonable doubt instruction. [Id.]
Clearly, the Supreme Court contemplated rights under the United States Constitution fundamental to a fair trial. The Sixth Amendment provides that the accused in all criminal prosecutions shall "have the Assistance of Counsel for his defence.” US Const, Am VI. While the case under consideration does implicate the Sixth Amendment, the deprivation that Ms. Durfee argues she suffered is not an error of the magnitude contemplated in Anderson; although indigent defendants do have a right to counsel under the Sixth Amendment, they do not have a right to appointed counsel of their own choosing. People v Ginther,
It is well settled in Michigan that "statements concerning a principle of law not essential to determination of the case are obiter dictum and lack the force of an adjudication.” Roberts v Auto-Owners Ins Co,
Requiring a showing of prejudice would bring improper removal of counsel claims in line with ineffective assistance of counsel claims brought under Strickland v Washington,
The appellant here has not asserted prejudice. The record reflects that she was represented by counsel at all critical points of the criminal trial process, either by Mr. Hess or by Mr. Sutton. The trial judge adjourned the sentencing for three weeks after Mr. Hess’ removal to allow adequate time for Mr. Sutton to prepare. Consequently, appellant does not challenge Mr. Sutton’s efficacy. More importantly, appellant does not argue that the removal of prior counsel affected the sentence itself. Ultimately, prejudicial error requiring reversal must exhibit itself somewhere; in this case the logical point is sentencing. However, appellant challenges the sentence only on procedural grounds, arguing that the trial judge impermissibly considered a charge pending in another county. Appellant does not, and cannot, claim that the alleged error was a result of the removal. I would conclude that the appellant has not demonstrated any prejudice.
The circuit court committed error in improperly removing appellant’s trial counsel. However, I would affirm the sentence because the appellant has not asserted any prejudice, and I would therefore conclude that the error was harmless beyond a reasonable doubt. I join in part m of the majority opinion.