People v. Kanouse
134 Mich. App. 401
| Mich. Ct. App. | 1984
134 Mich. App. 401 (1984)
350 N.W.2d 760

PEOPLE
v.
KANOUSE

Docket No. 68278.

Michigan Court of Appeals.

Decided January 3, 1984.
Decided on rehearing May 1, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Anthony A. Monton, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

State Appellate Defender (by Mardi Crawford), for defendant on appeal.

Before: DANHOF, C.J., and MacKENZIE and M. DODGE,[*] JJ.

ON REHEARING

PER CURIAM.

In our original opinion in this case, 131 Mich. App. 363; 346 NW2d 101 (1984), we affirmed defendant's convictions of driving under the influence of liquor (DUIL), third offense, MCL 257.625; MSA 9.2325, and resisting arrest, MCL 750.479; MSA 28.747. We granted defendant's application for rehearing to clarify our position regarding who has the burden of proof in a situation, such as defendant's, where a prior DUIL conviction is challenged as invalid for sentence enhancement *403 purposes because the defendant was not informed of his right to appointed counsel if indigent.

We hold that it is the defendant's burden to show, when making his collateral challenge, that he was indigent at the time of the prior offense in order to invalidate a prior guilty plea conviction at which the trial judge failed to inform defendant of his right to appointed counsel if the defendant could not afford to retain an attorney. Our holding here puts no greater burden on a defendant than that borne by him originally. In order to obtain appointed counsel at trial, a defendant must disclose his financial status and show an inability to retain counsel. See People v Gillespie, 41 Mich. App. 748; 201 NW2d 104 (1972); People v Cochran, 406 Mich. 947 (1979). Upon a showing of indigency, counsel is appointed for the defendant. Where a defendant asserts that a prior conviction is invalid because he was not informed of his right to appointed counsel, defendant must show prejudice by proving that he was indigent at the time of the prior conviction. Where, as here, a defendant makes no showing in his collateral challenge that he was, in fact, financially unable to retain counsel at the time of the prior proceeding, no prejudice is shown.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.