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How do you determine whether a prior misdemeanor conviction was obtained in violation of a defendant’s right to counsel?

Question as originally presented: Trying to find clarification regarding not being able to score misdemeanors if the defendant did not have an attorney and was sentenced to a jail term. If the defendant was placed on probation without an attorney but was violated and pleaded guilty without an attorney after his probation was revoked, then sentenced to 16 days with jail credit for 16 days plus $930 or an additional 30 days—can this be scored? What if the defendant at sentencing was given a jail term of 19 days with credit for 19 days; which is basically time served?

The statutory language of PRV 5 itself does not itself mention anything about prior convictions obtained without counsel, see MCL 777.55; however, a conviction obtained in violation of a defendant’s right to counsel cannot be used to enhance punishment for another offense. People v Moore, 391 Mich 426, 437-438 (1974). (Note that the right to counsel is also satisfied if a defendant validly waives the right to counsel. See Argersinger v Hamlin, 407 US 25, 37 (1972)). The Michigan Supreme Court held that “a defendant accused of a misdemeanor is entitled to appointed trial counsel only if actually imprisoned.” People v Reichenbach, 459 Mich 109, 120 (1998) (quotation marks omitted). Note that “actual imprisonment” includes a jail sentence as well as a prison sentence. See MCR 6.610(D)(2) (providing that there is a right to counsel if the offense charged requires a minimum term in jail or the court determines it might sentence to a term of incarceration, even if suspended). See also MCR 6.610(E)(2). Accordingly, in determining whether a conviction obtained without counsel can be used to score PRV 5, the key question is whether the defendant was subject to actual imprisonment for that conviction. Reichenbach, 459 Mich at 120.

Whether a sentence of probation constitutes “actual imprisonment” has not been addressed by binding authority. However, in an unpublished, and therefore nonbinding, decision the Michigan Court of Appeals held that “[a]lthough it is possible for a person sentenced to probation to end up incarcerated, the fundamental nature of a probation sentence differs substantially in both kind and severity from a suspended sentence of imprisonment.” People v Harbin, unpublished per curiam opinion of the Michigan Court of Appeals, issued August 4, 2015 (Docket No. 322857), p 3 (distinguishing the case from Alabama v Shelton, 535 US 654 (2002), which held the imposition of a suspended sentence constituted a term of imprisonment within the meaning of Supreme Court precedent). The Court held that the defendant’s prior uncounseled misdemeanor conviction could be scored under PRV 5 where the defendant was sentenced to probation. Id. Specifically, the Court held that “because defendant was not, in fact, imprisoned as a result of her 1994 OUIL conviction, the trial court’s decision in that case not to provide her with counsel satisfies the ‘actual imprisonment’ standard” established by the United States Supreme Court and adopted by the Michigan Supreme Court in Reichenbach. Harbin, unpub op at p 3. The situation you are describing differs from the facts in Harbin because your defendant violated probation and was conceivably actually imprisoned because the sentence of 16 days jail with 16 days credit (or 19 days jail with 19 days credit) implies that the defendant was subject to actual imprisonment because the defendant was necessarily imprisoned at some point to earn the jail credit. It is likely that the time was served as a result of defendant’s inability to secure pretrial release. No Michigan state court has considered whether sentences of “time served” based on time served before trial and conviction constitute “actual imprisonment”; however, federal jurisdictions have considered the question and come to differing conclusions. See e.g., Glaze v Warden Ridgeland Correctional Inst, 481 F Supp 2d 505, 510 (D SC, 2007); United States v Cook, 36 F3d 1098 (CA 6, 1994) (unpublished decision). Based on the applicable law, it is likely that the right to counsel was triggered in both of the cases where the defendant was sentenced to 16 days with 16 days of credit and 19 days with 19 days of credit, but not triggered by the conditional sentence of $930 or 30 days of jail was imposed. However, ultimately, your question presents a question of law that must be decided by the trial court.

Tags: PRV 05

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