*1 PEOPLE v JUSTICE May January 17, 1996, Lansing. at Decided No. 170619.Submitted Docket 17, 1996, 9:05 AM. at Court, pleaded guilty Earl E. in the Genesee Circuit Bruce C. Justice being Borradaile, J., first-degree fraud and a second- retrial thirty- eighteen sentenced to habitual offender. He was offense imprisonment. appealed, alleging The defendant six months of original charge elevating of second- erred in the trial court fraud, pursuant degree first-degree retail to MCL retail fraud to prior 750.356c(2); 28.588(3)(2), MSA on the basis of a having had the that was obtained without the defendant conviction fine, had received a counsel and for which the defendant benefit of jail not a sentence. Appeals held: The Court of to counsel under the 1. A criminal defendant’s identical under the United States Consti- Constitution is by greater rights guaranteed those tution and affords than federal constitution. of this case is controlled Nichols v United The resolution US_;
States, 128 L Ed which 114 S Ct 2d 745 Amendments of the federal con- held that the Sixth and Fourteenth prior sentencing a defendant’s allow a court to consider stitution of counsel if misdemeanor conviction obtained without the benefit actually result in incarceration. Because a that conviction did not lawfully can be sentenced on the basis of conduct that if that conduct is established did not result a conviction preponderance evidence, a defendant also could be sen- basis of a misdemeanor conviction obtained tenced on the on the conduct where without the benefit of counsel based same beyond рroved doubt. that conduct is a reasonable was not con- the defendant’s 3. Under actually stitutionally not result in incarcera- infirm because it did considering the defendant’s court did not err tion. The circuit offense-enhancing element. conviction as an Affirmed. P.J., concurring, that consideration of the stated Fitzgerald, Sixth Amendment of the United
conviction does not offend the 216
Opinion disagreed holding majority States Constitution but that such consideration does violate Const Michigan Constitution, person Under the does have charged regardless сounsel when with a misdemeanor of whether imposed *2 result of It incarceration as a the conviction. was error felony prior present to use the defendant’s conviction to elevate the however, pursuant required here, offense. Concurrence is 1996-4, People (After Order Administrative No. because Richert Remand), which was decided before this case, greater rights found that Const no affords guaranteed by than those the federal constitution. Right — — 1. Law Constitutional Criminal Law to Counsel. A criminal defendant’s under counsel Constitu- tion is identical to the under the United States Constitution greater rights guaranteed by and affords than those the federal (US Const, VI; 1, 20). constitution Am Const — — — Law Constitutional Criminal Law Sentences Prior Misdemeanor Convictions Without Benefit Counsel. The Sixth and Fourteenth Amendments of the States United Constitu- sentencing prior tion allow court to consider a defendant’s misde- having meanor conviction obtained without the defendant had the benefit of counsel where the conviction did not result in the defendant’s incarceration. Jeffrey Young, M. for appeal. the defendant on Sawyer Before: P.J., and JJ. Fitzgerald, Young, pleaded J. Defendant guilty of first-degree Young, 750.356c; retail MCL fraud, MSA 28.588(3), and of being second-offense offender, habitual MCL 769.10; MSA 28.1082. He was eighteen thirty- sentenced to six of imprisonment months and now as appeals right. We affirm.
i shoplifted $100. Defendant goods worth less than normally That support only conduct would a convic- tion of second-degree fraud, retail MCL 750.356d; MSA 28.588(4). However, law, under Michigan when a of cеrtain enumer has a conviction defendant fraud is ele offenses,1 second-degree retail theft ated penalties possible and the first-degree vated to 750.356c(2); 28.588(3)(2). MSA MCL increase. prior misdemeanor convic had a Because defendant $100, 750.356; under MCL larceny for tion first-degree his was elevated 28.588, charge MSA larceny Defendant that the argues retail fraud. have been used to elevate should not conviction obtained charge because that had having legal the benefit of without dеfendant Indeed, lower court record this case counsel. legal did not have indicates larceny guilty to the misdemeanor pleaded when he is no record evidence to estab charge in There knowingly lish that defendant waived record that defendant was counsel. The also indicates jail conviction, but was not sentenced to *3 fined.
n constitutional change Because of recent compelled scope pro- law, we are to consider the afforded Constitution to Michigan tections whether a conviction obtained with- determine had having out the defendant the benefit and may charge be used to enhance defraud, 750.218; 28.415; pretenses MSA lar- False with intent to MCL second-degree fraud, 750.356d; ceny, 750.356; 28.588; MCL MSA retail MCL any larceny 750.360; 28.592; building, 28.588(4); MSA or MCL MSA substantially corresponding retail fraud statute or local ordinance to the statutes. to the enumerated 216 Mich punishment.2 Michigan The and federal constitutions provide as follows: every prosecution,
In
criminal
the accused shall have the
right ...
to have the assistance of counsel
his
for
or her
defense.
[Const
20.]
prosecutions,
enjoy
In all criminal
the accused shall
right...
to have the Assistance of Counsel
for
defence.
Const, Am
[US
VI.]
governing
Our review discloses that the law
question
applied Michigan
exclusively
and
has been
developed
stages.
federal. The federal law
in two
question
first
right
itself with the
concerned
of when the
regarded
to counsel attaches and the second
any,
what use, if
could be made of a conviction
obtained in violation of the
to counsel.
Beginning
Wainwright,
with Gideon v
335;
372 US
83 Ct
L
792;
S
9 Ed 2d 799
the United States
Supreme
Court ruled that
to counsel
felony
attaches in
cases,
that, if
and
a defendant can-
required
counsel,
afford
the constitution
that one
supplied by
government.
Argersinger
be
In
Hamlin,
25;
407 US
S
92 Ct
At the
the manner
time
conviction obtained without
prior
a
misdemeanor
subsequent
be used in
cases
benefit of counsel could
Illinois,
Baldasar
question. In
open
was still
S Ct
Although
Stratton,
opinions, People v
multiple
because of its
Michi-
App 70, 77-78;
broadly to mean that
interpreted the case
gan courts
conviction obtained without
to counsel could not
proper
waiver of the
*5
638
216 Mich
633
Opinion
Id.
used to enhance a
principle
sentence.
evolved
in Michigan
even further
mean
that such
convic-
during
tion could not be considered
sentencing for
any purpose, People Miller,
v
App 466, 469;
294 (1989), and, therefore,
NW2d
must be deleted
v
from
People Martinez, presentence report,
App 377, 386;
See
(1992).
also
People Olah,
v
The conflict concerning Baldasar ultimately Nichols United resolved in States, US _; 114 S Ct 128 L 2dEd 745 (1994). process, In the Supreme Court overruled Baldasar held that Sixth and Fourteenth Amendments allow a sentencing court consider
conviction obtained without the benefit of counsel if actually that conviction did not result in incarcera- previously the defendant had been tion. which driving, misdemeanor drunk for convicted of cоn- not incarcerated. He later was he was fined but felony possess (conspiracy victed of a federal When sentenced deliver). with intent cocaine felony conviction, misdemeanor convic- history under scoring his criminal tion was used guidelines, higher sentencing resulting have calcu- than would been recommended sentence *6 not been prior had misdemeanor conviction lated rejected defend- The court sentencing considered. prior misdemeanor conviction аrgument ant’s be benefit of counsel could not without obtained only that such considered, that Baldasar meant ruling conviction could not be used a misdemeanor In how- felony. a to a elevate misdemeanor felony. Therefore, a ever, the new offense was itself prevent not consideration of Baldasar did conviction. because a defendant that,
The Court ruled lawfully sentenced on the basis of conduct can be if did in a conviction that conduct not result by preponderance evidence, of Williams established 1079; US 69 S Ct 93 L Ed York, v New on the could also be sentenced of a conviction obtained basis same of based on the without the benefit proven beyond been where that conduct has conduct 2d 755. Nichols, supra, L Ed a reasonable doubt. are under the Unquestionably, we bound Nichols Court, question constitution. before should, a matter therefore, whether as continue to adhere law, own constitutional its of defend- disallow the enhancement Baldasar adopt per conviction, or ant’s the rule of Nichols and second-degree mit the state elevate retail fraud first-degree offense to where the obtained without the benefit of counsel did not result in incarceration.3 argument
Defendant in this case has based his
entirely
reversal
on the federal constitution. He has
Michigan pre-Baldasar
apparently
cited some
cases,
persuade
attempt
Michigan,
in an
us that
followed
Baldasar-type rule before Baldasar was decidеd. Our
they
review those cases shows that
not
did
involve
question posed
appeal.
in this
respect
question
With
to the
whether our state con-
protections
greater
provided
stitution affords
than
the Sixth Amendment of the federal constitution, our
Supreme Court has had occasion to address the
scope
1, 20,
but failed to reach
agreement.
People Wright,
suspect
being
NW2d 351
a criminal
inter-
police.
rogated
police
He told the
that he did
attorney;
have
an
he was not advised when one
might
appointed
for him. The defendant did not
family
attorney
repre-
know that his
had hired an
attorney
him;
sent
nor was he advised that had
*7
police
during
interrogation
arrived at the
station
the
but was not allowed
see
his client. The defendant
3
question
only
may
Our consideration of this
is based
on what use
subsequent
made
a in
misdemeanor conviction obtained
case of a
felony
the
of
without
benefit
counsel. Prior
convictions obtained without
constitutionally
or a
waiver
counsel
valid
of the
to counsel are
infirm
any purpose,
including
and cannot be
used
sentence enhancement.
Burgett
Texas,
109, 115;
258;
(1967).
389 US
88 S Ct
eventually confessed.
under
the constitution
did not violate
conduct
police
precedent.4
States
United
himself and Justice
Mallett, writing for
Justice
had been obtained
opined that
the confession
Levin,
rights
under
violаtion of the
compelled self-
1,
against
art
1963,
(privilege
§
pro-
corresponding
if the
federal
even
incrimination)
was not offended.
Amendment)
(the
vision
Fifth
Mallett did not
supra,
Thus, binding there is no we on Supreme Court, and must therefore embark independent question. own effort to deсide the our law has not Our review of the shows on interpretation based its (1986). L SCt 89 Ed2d410 475US Moran v Burbine, *8 216 App Opinion of authority, applied state constitutional but rules has solely on the of basis the federal constitution. See supra; supra, Olah, (discussing Stratton, 148 Mich 74-79 ***5 origin rule).* Michigan federal All the addressing appropriate cases use misdemeanor convictions obtained without benefit of counsel precedent. have been based on federal Michigan’s provision guaranteeing constitutional virtually thе assistance of counsel is identical provision. Only two words differ: the state prosecutions constitution refers to “all” criminal “every,” provides instead of and it that the defendant rights “enjoy” “have” shall certain rather than them. changes Neither difference material: both Michigan Constitution involve the substitution counterparts import words with identical to their in the federal constitution. a result, As there can protection entirely doubt that our state’s is based on provision. the federal to the assistanсe of counsel in pro
dates back to our first constitution in 1835.6 That appeared every Michigan vision has Constitution § since. See 1850, 6, Const art 2, Const 1908, art § 19. that, We believe if the framers of four different provide state constitutions had intended the state to they greater rights, adopted language would not have People Moore, 426, 436-440; See also exclusively grounds constitutionally which decided on federal infirm impeachment purposes convictions could not be used for or considered at sеntencing. Nichols, supra, teaches that misdemeanor convictions constitutionally obtained without the benefit of counsel are not infirm imprisonment actually under the Sixth Amendment where was not imposed. Thus, Moore does not alter the outcome of case. prosecutions, right... “In all criminal the accused shall have the have the assistance of counsel for his defense.” Const “every" changed “All" pertinent regards all fed-
that was identical provision. eral *9 at is buttressed remarks
This conclusion Convention that drafted the 1963 con Constitutional time, рre first the 1963 constitution stitution. For the in appeal a to criminal convictions.7 right served question that discussing proposed addition, While provision that would also mean that arose whether court-appointed right would have a to defendant attorney appeal: to assist an King: question [Raymond] direct a to Mr. I should like to Delegate Norris, your Norris, might. Delegate if I it under- provision providing standing that under this constitutional counsel, employment must of of that this counsel for the necessity expense рublic in provided of the be for at able hire his own counsel? that the accused is not event say that, King, Mr. is that Mr. Norris: All I can [Harold] supreme decisions, United States are court there certain particularly Illinois, supreme decisions, court Griffin participation regard of the state in the extent of in the federal constitution assis- giving effect to the 7 upon People Mallory, concurring opinion 378 in this case relies proposition 66 for the that our NW2d Mich protections 1963, 1, § art 20 affords broader hаs held that Const Court counterpart. misplaced. This The Mal- than of its federal reliance those provides Michigan’s expressly recognized lory Constitution 20, 1963, 1, appeal, art that has no defendants a Const criminal 555-556, Mallory, supra, counterpart Mich the federal constitution. justices constitution, that, 567, majority held under our state A 571. appointed appeal indigent counsel on from an was entitled to 567, supra, 559, Mallory, Mich 575. How- misdemeanor conviction. majority justices ever, did not hold that the constitutional source of the joined by lay 1, Only 1963, § 20. Justice Dethmers, in Const art 1, § 20 no distinctions made stated Justice Adams, supra, Mallory, Mich No felonies and misdemeanors. between opinion. portion joined justice Justice Dethmbr's Conse- in this other Mallory upon concurring plurality opinion quently, relied authority dispositive opinion binding issue before in this is not case us. counsel, particular tance of and insofar as that would applicable, you then it would have some effect on what think, questioning. however, are now I don’t there has been any gone state court has decision which farther than what provided. So, say no matter what we the federal has court here, go beyond it wouldn’t what the United States supreme requires. court now Record, Official Constitu- [1 p Emphasis tional Convention added.] We also note that when the Constitutional Convention development held the vast of this area of law that started with Gideon v Wainwright, supra, yet had not begun, because Gideon was not decided until 1963.
We do not consider Const 20 to be ambiguous, if but even it were ambiguous and we required beyond were to look the language of our constitution to construe the intent of framers, we *10 support find no argument they that intended a right based in state law that was broader than that in provided the federal constitution. Had the framers beyond a protected intended that law, federal they adopted would have language broader than the counterpart they as did with the appeal,
Because we find that
independent
there
state
basis for adhering to the rule of Baldasar, we con-
clude
practice
that Nichols controls the sentencing
our state. We further note that the
approach
Nichols
was utilized
analogous
in an
shortly
situation
after
Baldasar
People
was decided.
v
Courtney,
App
Mich
454, 457-458;
not Consequently, thе circuit court incarceration. result in considering an conviction as did err in not offense-enhancing element of retail fraud.
Affirmed.
Sawyer, J., concurred. {concurring). I concur with the P.J. Fitzgerald, majority’s that of the conclusion consideration Sixth Amendment of conviction does not offend the disagree However, I the United States Constitution. Remand), holdings (After Richert with the _ _ and the NW2d majority holding herein, such considera- afoul tion does run of Const only required I Therefore, I am to do concur because Order Nо. 1996-4. so Administrative of the United States Consti- Sixth Amendment provides, part, all “[i]n relevant criminal tution enjoy right... prosecutions, accused shall *11 How- have of Counsel his defence.” the Assistance given ever, Court has this amendment reading, stating “where sen- that rather restricted imposed, imprisonment a defendant [is] tence of 216 Mich by Fitzgerald, Concurrence P.J. charged with misdemeanor no constitutional [has] States, to counsel.” Nichols v United right US _, _; 1921; 114 S 128 L 2d Ct Ed citing Illinois, Scott 1158; 440 US L S Ct 59 Ed 2d 383 (1970).
Here, defendant had been convicted misde- $100 larceny meanor of under before the instant pros- ecution. The sentence imposed Thus, a fine. Scott, under he had no to counsel under the fed- and, therefore, eral constitution no right to counsel could have upon. been infringed only Considering constitution, the trial properly court acted considering 1981 conviction.
However, the has Michigan Constitution been con provide expansive strued to more rights for those accused of crimes. Const provides, 20§ every part, relevant that criminal prosecution, “[i]n the accused shall have right... to have the assis tance of counsel for his or her Although defense.” language nearly identical appearing Sixth Amendment, the Michigan Supreme Court has stated that distinction is made between felonies “[n]o types misdemeanors or or seriousness of crimes in ... the Constitution of Michigan.” People v Mallory, 378 Mich parallel NW2d 66 (1967).1 This App 225, 227; Lewis, attempted to draw a distinction between felonies and misdemean- ors as was done in Scott. The Court reasoned that because the then-extant provided charged felonies, court rules those with but not those charged misdemeanors, counsel, had to be advised of their 1, § 20 was not offended where a defendant convicted of a However, misdemeanor had not advised been of his to counsel. provide charged court rules have since been amended to that a defendant with a misdemeanor must advised of his to the assistance of an attorney. 6.610(D)(l)(c)(i). Therefore, reasoning , MCR of Lewis hav- superseded by rule, ing good longer been court is no law. *12 People 647 v Justice by Fitzgerald, P.J.
Concurrence misdemeanors and charged those with treatment of rules, provide which in the court felonies echoed apprised must be that a defendant type with of offense. charged when either also MCR see n 6.610(D)(l)(c)(i); MCR 6.104(E)(3); supra. sum, the federal constitution a
In while under where convicted of has no to counsel defendant where incarceration a misdemeanor and a defend under the Constitution imposed, charged when with ant does have the to counsel of whether incarceration is regardless a misdemeanor Therefore, result imposed as a conviction. where, here, infirmity exists as. constitutional is convicted of misdemeanor without having waived of counsel and without benefit I it Hence, would hold that counsel.2 lar error for the trial court use from a ceny present to elevate the offense felony. People Miller, See constitu App 466, 469; (1989) (a Mich used to enhance tionally conviction cannot be infirm рrinci with established accordance punishment). conviction and I reverse defendant’s ples, would second-degree entry of a conviction remand 440, 443; Jenkins, retail fraud. See NW2d 503 (1975). may align interpretation Supreme of Const wish to its Our Supreme interpretation Court’s § the United States However, analogous it until Sixth Amendment of the constitution. matter, so, on the its most recent statement this Court is bound does felony prosecutions occurring Mallory, in which misdemeanor obligation together. expressly grouped It is Court’s were obsolete, and, modify until it or case law if it becomes takes overrule authority. action, bound and all lower courts are this Court such (1993). Shows, NW2d Boyd v W G Wade