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Can you score an adjudication under the PRVs if the defendant “waived” their right to counsel?

A defendant’s prior felony conviction obtained without counsel because of an improper waiver of counsel must not be considered in sentencing. United States v Tucker, 404 US 443, 447, 449 (1972); People v Moore, 391 Mich 426, 437-438 (1974). This applies to juvenile adjudications as well. See MCR 6.905(A); MCL 780.991(1)(c). However, just like adults, a juvenile can waive the right to counsel. MCR 6.905(C). Accordingly, as long as the right to counsel was validly waived it is permissible to count the prior adjudication. Note that the defendant bears the burden of proving that a prior conviction/adjudication was obtained in violation of the right to counsel. Moore, 391 Mich at 440.

Here are two examples that may help you evaluate your case: Defendant successfully established prima facie proof that a prior juvenile adjudication was obtained without counsel where the presentence report contained “a notation to that effect.” People v Alexander (After Remand), 207 Mich App 227, 230 (1994). In contrast, the defendant failed to make a prima facie showing entitling him to an evidentiary hearing where the notation regarding the challenged prior conviction in his PSIR was silent about whether the defendant was represented by counsel or validly waived his right to counsel. People v Zinn, 217 Mich App 340, 344 (1996). “Mere silence regarding counsel is not the equivalent of the prima facie proof required by [People v Moore, 391 Mich 426, 440-441 (1974)] and [People v Carpentier, 446 Mich 19, 31 (1994)], or a presentence information report containing a notation that a prior conviction was obtained without the benefit of counsel.” Zinn, 217 Mich App at 344.

A prior misdemeanor conviction obtained without counsel but which did not result in a term of imprisonment may be used for enhancement purposes with respect to a subsequent offense. People v Reichenbach, 224 Mich App 186, 191 (1997). See also Nichols v United States, 511 US 738, 742-744, 749 (1994).

Tags: PRV 01 PRV 02 PRV 03 PRV 04

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