*1 findings question whether hoard were upon evidence. substantial based request grant “that the said Interlochen’s We Appeals and the Court of be reversed order of the Appeals to the Court of be remanded matter hearing if order of on the record” to determine statutorily proper order for enforce- the board is a ment. final results. to abide the
Costs J., T. E. C. Black, Brennan, Dethmers, JJ., concurred T. M. Kavanagh, Adams, Kelly, v. McKINLEY. PEOPLE JUDGE.) (McKINLEY CIRCUIT v. IOSCO Appellate Right — — Law Law Constitutional 1. Criminal — — Request Waiver. Counsel United a statement Supreme Court is bound holding assistance Supreme where the Court States be furnished requisite, counsel is a constitutional request that when depend not does manifest indigency are and desire defendant whose appeal, of his trial counsel the services does spe- failure simply from defendant’s it cannot be inferred that he appellate counsel cifically appointment right. knowingly intelligently waived [9,10] [5] [1-8] Constitutionally ment Right as 21 Am Jur regards 16 Am of counsel References indigent Jur new 2d, protected 2d, trial or Criminal Law §§ Constitutional state court for Points in criminal case prosecution. 93 Law indigent accused to in Headnotes 316-319. ALR2d 1072. § 26. to aid ALR2d 747. of state appoint Presumption — — — Waiver Constitutional Law Words Phrases. relinquishment or Waiver the intentional abandonment Supreme indulges every known and the reasonable against presumption waiver of constitutional *2 3. Constitutional Law —Waiver. Intelligent rights depend constitutional of must on the may considered choice defendant and be of not made by participation. counsel without defendant’s 4. Constitutional Law —Waiver. knowing intelligent Whether there has a been and waiver of a right depend upon must the facts and circum- particular stances of each case. — Proceedings — 5. Constitutional Law Post-conviction Assist- op — ance Counsel Waiver. Indigent request specifically appointment defendant’s failure to post-conviction of proceedings 60-day counsel for within the period permitted appeal right for of did not constitute a knowing, intelligent right appointment waiver of his to of counsel, appellate defendant, by timely request where his transcript, post-conviction relief, for a indicated a for desire appointed proper where counsel was for timely essential a and securing post-conviction rights, of where, defendant’s and although technically post- defendant advised of various remedies, apparent conviction it is from the record and should apparent judge have been colloquies to the trial from his post-conviction defendant that defendant desired but counsel that, ignorance because of confusion, his and he failed to comprehend procedural the substantive or nature available post-conviction remedies. — Proceedings — 6. Constitutional Law Post-conviction Assist- op op — — ance Counsel Waiver Statements Counsel. Trial counsel’s to statement the court that had not defendant requested post-conviction proceedings services for can be only taken at most to indicate desire that defendant did not appellate trial counsel to continue as his counsel not that defendant intended to appointment waive his propria persona. proceed in counsel and op Proceedings 7. Criminal Law —Post-conviction —Assistance Waiver—Duty op Counsel — Trial Court. judge Trial who realizes or should realize after conviction permitted within the time appeal defend- that the duty post-conviction as- pursue relief has desires to ant and the waiver of assist- that certain knowingly understandingly and appellate ance ignore made; hence, trial court de- it was error for the rely exclusively manifest desire to fendant’s all inform of his constitutional counsel to defendant rights. Concurring Opinion Black, Appellate — — — — Waiver Law Counsel Counsel Criminal Bequest. Supreme United is bound a statement The Court Supreme holding even States if made, its appeal had been counsel on would not amount a waiver absence of defendant’s Bight Appeal Appeal Amend- —Constitutional Error — ment. encouragement current, ever-mounting prevalent, expenses appeals and the resultant Fourteenth Amendment profligate drain incurred services is *3 for only by county stopped a' can and state treasuries and be appeals barring civil and criminal constitutional amendment grantahle limiting on to such as are and them of application. Appeal Appeal op Bight. and 10. Error — barring appeals civil and criminal A constitutional amendment grantahle limiting appeals those are which and our upon application would is both due and and afford fair against frivolity protection same state its subdivisions the Supreme squander United Court. which insulates the States Division 3, Appeals, from Court of
Appeal JJ., Quinn, H. J.,C. J. Gillis and Lesinski, Allan Iosco, control over superintending denying (Calendar 11, March 1970. Miller, J. C. Submitted Decided 52,256-1/2.) May Docket No. No. filed writ of habeas corpus for Application hereafter McKinley, Louis of Appeals Court Application treated as com- “defendant”. called superintending plaint control denied appeals. Appeals. Remanded Defendant proceedings. court for further to trial Kelley, Attorney Robert A. General, Frank J. Derengoski, Freeman, H. General, Stewart Solicitor Myles, Attorney General, and Kenneth J. Assistant Prosecuting Attorney, people. for the Robinson, Wyble (J. & Richard Parks, Church counsel), for defendant. Defendant was convicted T. M. Kavanagh, robbery “being jury and there armed while then ** ** weapon, dangerous to-wit:
with a * * * ”1 and was sentenced beer bottle brown August years. to 20 At that to a term of 8 29, 1966, judge that: time the trial informed defendant given you can use to initiate “You are a form that days You an within 60 from the date hereof. appoint an at- the Court copy torney you, for a of the tran- ask (defendant’s counsel) script. will Mr. Freel request.” you in more advise detail about this September On defendant’s trial 26, 1966, appeared before the court and advised it that he had making in received a from defendant further letter quiry appeal.2 possibility to the Rather attempting than to determine defendant’s intention *4 reproduction that Michael N. Louis received as to the “Mr. Freel 1MCLA 750.529 I, F. for import from possibility McKinley in the § of the entire (trial the said County Freel, court-appointed this oral motion as discussed attorney of an (Stat of Iosco the matter defendant appeal. proceedings: Ann 1969 Cum defendant): a letter heretofore August attorney Supp making [23] tried Let and § for the defendant 28.797). the record further infra 24, 1966, the Circuit warrants inquiry show have 533 Opinion op the Court. the trial proceedings, respecting transcript trial a of the copy ordered court merely reminder that to defendant with a transmitted to he to within appeal a decision must make defendant of sentencing. of the date 60 days the his counsel of informed trial Upon being upon being a transcript providing court’s order limitation, the time 60-day advised of subsequent inquiries make requests to proceeded (Letter appeal.” eompleate my needed “to [sic] regard I the Court send the defendant “In would move to that permit McKinley transcript me to copy a of the Louis F. days appeal from apprise of his within the defendant date of his sentence. the you any objection, Mr. Ernst? Do have “The Court: Attorney County): I (Prosecuting Iosco would “Mr. Ernst of Honor, transcript time, furnishing that this Your object to the of appeal. ground has not an intention to the defendant filed on the statutory period, is not the he is filed within Until such intention transcript. to a entitled your position, Mr. some “The I think is merit Court: there Ernst, Freel ing transcript prepared appoint Mr. but we will order specific just purpose of forward- attorney for the at this time reminding he make transcript the defendant that must days appeal within 60 date sentence. a decision asking it, Freel, you to be he is not “As understand Mr. appeal, appointed an is he? correct, Honor, is not. “Mr. That is Your he Ereel: request grant he such we “The Court: If would make would I note it, in the making as I understand it. but is not that he counsel, requested we he but will order that has not order complete transcript. to furnish him a reason There no transcript preliminary examination.” of the McKinley: “Dear Mr. your possibilities receipt concerning the of an “I am in letter your matter. You indicate appeal in the above from conviction transcript possibility appeals after you for the awish McKinley, are codefendants, and Jack Ona Lee Roberts from the you days date prosecuted. be from Please advised right. sentencing prosecute your as a matter County for an Iosco Circuit Court “I date moved the have this you transcript proceedings, that of the provide with a order testimony sentencing which transcript the trial and of is a he Brown, expect transcript after Miss Bessie granted you. may You opportunity to stenographer, has had a reasonable court prepare this material. initiating forms for “Also find enclosed “Very truly yours, N. Freel” “Michael *5 Mich Opinion op the Court. stenographer from defendant to court dated Novem judge, 1966.) however, ber The trial informed 1, by 13, 1966, defendant letter dated December that: request for an “We have received a prosecute appeal, although you from it does appear request transcript, for that we had through sub- your mitted Mr. N. Freel, Michael court-appointed attorney. The record shows that transcript you. on 8 the November was mailed you “As should have aware from the advice been given at time the of sentence and the advice further given by your appeal expired Mr. for Freel, time or about October you you “If wish the assistance of counsel should promptly. advise me this At time counsel would petition appeal.” delayed
have to for leave to file a by orOn about November 3,1967, letter defendant requested the trial court to review his conviction. The trial court treated the letter as a motion for delayed leave upon to file motion for and— new trial upon hearing defendant’s at the the subsequently “petition motion and in a filed for coun- only” appointed represent sel counsel to defendant — presenting in hearing his motion. After a held this motion the trial court denied the defendant’s motion and likewise denied defendant further assist- subsequent pro- ance of in ceedings. propria persona application
Defendant filed for corpus Appeals habeas alleging the Court in- competence post- of trial counsel and denial of Appeals, conviction remedies. The Court treat- ing application complaint the superintending as a for control, denied the same lack of meritorious grounds sought. for the relief
Delayed application leave to granted 809) (381 this Mich Court but limited to ap- of whether issue prepare and file
pointment counsel to delayed application for to the Court leave to Appeals. placed People upon Much reliance is (1969), Judge Menominee Circuit of Jensen v. case interim decided *6 appeal arguments grant to and oral of leave between in the instant distinguish- Jensen is However, case. prior to 1963 involved a conviction in that it able (Jen- right appeal” (constitutional) of “no carried sen, 540), years supra, p that over six had at post- attempted any expired to secure before Jensen In case had the instant defendant conviction relief. right appeal4 and his or desire to indicated interest by his least within so letter to to do sentencing. days 60 from date question instant as case, The crucial in the distin- guished and decided those issues discussed from right supra, Jensen, whether defendant waived his is appeal corollary right appointment to his to appellate counsel. people’s position that was ad-
It is rights opportu- vised of and was not denied an his appointed nity right appeal to counsel. implied argument is this that defendant’s It to be silence the matter should be construed to constitutional his appellate counsel. are the statement bound, however,
We (87 (1967), 258 996, v. Bosler 386 US S Ct Swenson 33): 18 L Ed 2d think contained in this tran-
“We the documents script respondent did indicate demonstrate his the Missouri courts desire counsel 1, 1963, 4 Mich art Const 20. § Mich we do made, not been had if such But even a waiver of would amount absence think its not where settled ‘that respondent’s It now is requisite, is a counsel the assistance the a depend on does furnished counsel to be (1962), request.’ Carnley 369 US v. Cochran 76). (82 aWhen 8 L Ed 2d 884, 889, Ct 513 defendant S indigency are desire to whose of his trial coun have the services does not manifest simply appeal, from de it be inferred cannot sel on request appointment specifically failure fendant’s knowingly and in he appointment telligently to the waived (P 260.) appellate counsel.” repeatedly defined as that term has been Waiver, relinquishment or Court, the intentional Welling right. v. of a known See abandonment Drugs, (1961), 389; 362 Mich Inc. Dave’s Rate Cut (1958), Company v. 352Mich Book Furniture Chance Maxey (1955), Kelly 453; Mich v. Proctor 521; (1969), Allegan County Judge Circuit every presumption indulges The Court reasonable *7 (See against waiver of John [56 304 82 son v. Ct [1938], Zerbst US S 1461].) Intelligent L is made waiver, course, Ed depend upon defendant, the considered choice of participated a and choice counsel but not made does not meet constitutional stand (See Fay [83 v. [1963], ard. Noia S Ct US Phillips People 837]. See, 9 L Ed 2d v. also, 464.) analysis, In the deter [1970], 383 final intelligent mination of whether there been depend upon knowing the facts and must particular case. each See Johnson circumstances supra, p Zerbst, v. reading
A instant case careful the record technically although defendant was discloses compre- rights, of his he failed to advised various procedural hend either the substantive or nature of post-conviction remedies. the available ignorance Illustrative of defendant’s and confu- sion as to the available remedies is application proceeding held on the leave to delayed Only motion for trial.5 after file the hearing new the ap- way
had been well under did it become parent court that his motion, to the defendant, attempting appointment of to secure counsel: * * * you hand, “The Court: On the other do proof moving have the burden now. You are party, way got you and some or other to demon- your allegations strate for a a motion for new trial. sir. Yes, That wasn’t meant for a “Defendant: going motion for trial. I new That is what was get lawyer. lawyer. use Iwhen I You see want a you asking lawyer? “The Court: are for a Oh, thought I Yes. what this “Defendant: was. lawyer “The You Court: never asked me up you just to this minute, until said it now. You lawyer. never oncehave asked for a thought I that is what this towas, “Defendant: lawyer. ask for a You see I don’t understand court proceedings. you asking
“The Well, Court: is this what are asking lawyer? for? You are for Yes. That is what that was meant “Defendant: for there. say “The Court: itWell, doesn’t I so. re- will read it see you to see if I missed that. Mr. do Ernst, anything lawyer? here where he asked for (Prosecuting Attorney “Mr. Ernst Iosco County): Your I No, don’t. Honor, you “The got Court: legal assumed had all that you advice cite you wanted. From the number cases you pretty good jail-house must have had some counsel.
5 February 5, 1968.
ask for an for an Even for new way give you it is too If trial, late. could me some justify your period delay reason of long for such a might delayed request, we time, consider a but so you far all have done here is cite a lot of cases. I thought you the good lawyer had such down there in prison you any that didn’t want of the local law- yers. you for sue this “The Court: just have petition a new trial. You want an changed for a new trial. * now and * * [*] [*] IasWell, you [*] are no attorney understand it longer asking pur- Yes. “Defendant: you attorney “The Court: Or do want grant event I a new trial? Which is it? or both? ways. I want an I both “Defendant: don’t anything pro- understand about these court ceedings. my understanding, Ernst: It was Your “Mr. McKinley’s being Mr. letter was re- Honor, application garded petition an as or to file leave delayed motion, than motion rather itself. right. “The Court: That’s you it a brief, “You call Mr. Do any delay? reason at all for the ignorant Just that am of the law “Defendant: thing and don’t understand it. about That is only possible reason.” totality From a of the facts and circumstances presented abundantly it is record, clear permitted defendant, within the time right, ap- desired relief and that pointed timely proper counsel was essential to a securement those *9 Opinion the Court. occurring not infer from events within do the
We days the trial the 60 from date of as did conviction, satisfying judge, merely some that defendant was curiosity an idle as to It should have been judge to the trial that defendant desired manifest attempting and was some relief his way, by requesting transcript, ignorant own to remedy some for his conviction. secure can Neither we construe the trial counsel’s state- proceedings ments at the to secure the trial tran- script acceptable binding upon defendant or as constitutionally satisfactory equivalent for defend- appeal right ant’s “considered choice” to waive his right to counsel. The most liberal inference only drawn can be indicates that defendant did trial counsel desire to continue as his attorney and not that defendant intended to waive appointment proceed the of counsel and persona. propria only trial Not counsel’s am- bivalent statements but also the unusual prosecutor’s objec- defendant —as indicated suggested tion—should have at least to the trial judge appointment that the of an was nec- essary indigent to assist post-conviction proceedings. desired judge ignore It was error for the trial defend appeal rely ant’s manifested desire to exclu sively upon fully trial counsel to inform defendant rights. of all his constitutional It was incumbent upon judge the trial he realized or have should —once upon realized after conviction that the trial, de pursue post-conviction fendant desired to relief—to make certain that and coun understandingly sel to assist defendant is and know 6 The sum and substance of the trial in counsel’s advice to the defendant, carcerated expiring, rapidly whose time as of reproduced supra, is fn upon commented, Black ingly Mr. Justice made.7 Gillies analogous in Von Molthe v. situation, 309): (68 92 L Ed (1948), S Ct 332 US right of an ‘The said: “We represented of it- invokes, to he accused protection in which the court, self, liberty stake—is without is at life or accused—whose imposes protecting duty the serious counsel. This judge responsibility weighty the trial and determining intelligent and com- there whether *10 by discharge petent To waiver the accused.’ presumption duty light properly strong of the right against to counsel, waiver the thoroughly judge investigate long and must as as the circumstances of the case before him demand. The fact may
that an tell him is in- accused that he right of his counsel formed this and desires to waive automatically judge’s does not end the responsibility. To valid such be waiver must be apprehension made with of the nature the charges, the statutory offenses included within them, range punishments pos- of allowable thereunder, charges sible defenses to the and circumstances mitigation and all thereof, other facts essential to a understanding judge broad whole A matter. professed can make certain that an accused’s waiver understandingly wisely only counsel is made comprehensive penetrating from examination of all plea the circumstances under which such a (Pp 724.) tendered.” 723, People (1962), See, also, v. Whitsitt Mich 609. presented We conclude from the facts the rec- ord in the instant case that defendant did not intelli- gently knowingly waive his constitutional appointed. and his to have counsel quate discharge The period there is an advice within intelligent which to the trial the court’s judge competent initial subsequent cannot be condoned as an ade- responsibility to the the accused. expiration to determine v. Black, Opinion by J. ap- is remanded to
The cause court for proper post-conviction pro- pointment of ceedings. J., T. E. and Dethmers, C. Brennan, Kelly, and T. G. concurred JJ., Adams Kavanagh,
T.M.
J.
Kavanagh,
(concurring
remand)-.
majority
Black,
opinion Douglas
(1963),
Reflect this case as an ex- ample. Only appellate services rendered thus saying nothing expenses in this Court, and of the far paid by county professional incurred and Iosco representation McKinley during jury of Mr. * Every forceful, dissenting bit as Justices Harlan and Stewart (Douglas endorsed p 361): this am implicit constrained to dissent from the extension of the “[I] equal protection approach here —to a case which the state denies no appeal, only one- an keep but seeks within reasonable bounds the instances digents.” assigned which in- counsel will be Mich
Opinion by Black, county has conviction, in his 1966 which resulted appointed recently by for fees billed been aggregating $1,000 which $3,687.22, and costs encouragement ever-mounting paid. theWith been prevalent appeals Amendment Fourteenth county profligate and state drain now, stopped only constitutional, can be treasuries appeals barring as of and criminal civil amendment grantable upon limiting right; to such as are them application. It and fair. will is both due an amendment
Such provide no more and its subdivisions for our state frivolity protection against that same than Supreme squander the United States insulates which unchallenged statistics, facts and see For Court. pp 358, aforesaid, dissent Mr. Justice Clark’s proposed. in remand as said, above concur