PEOPLE OF MI V ANTHONY BROOKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
August 16, 2011
9:00 a.m.
Plaintiff-Appellee,
v
No. 298299
Wayne Circuit Court
LC No. 09-011819-FH
ANTHONY BROOKS,
Defendant-Appellant.
Before: TALBOT, P.J., and HOEKSTRA and GLEICHER, JJ.
GLEICHER, J.
Anthony Brooks, no stranger to the criminal justice system, insisted on representing
himself against a charge that he had unlawfully entered a Chrysler Corporation factory storage
area intending to commit a larceny inside. Brooks unsuccessfully asserted his right to selfrepresentation at his arraignment, a pretrial conference, and on the day trial commenced. A jury
ultimately convicted Brooks as charged. Because the trial court denied Brooks’s Sixth
Amendment right to self-representation without conducting a meaningful inquiry and in reliance
on constitutionally impermissible criteria, we vacate Brooks’s conviction and remand for a new
trial. We further hold that the trial court abused its discretion when it departed from the
minimum guidelines sentence range of nine to 46 months’ imprisonment and imposed a
disproportionate life sentence.
I. UNDERLYING FACTS AND PROCEEDINGS
In September 2008 and November 2008, security guards saw Brooks scale a high,
barbed-wire-topped fence surrounding a Chrysler Corporation plant in Detroit. On both
occasions, the guards witnessed Brooks run through a storage area housing automotive parts.
During the November 2008 incursion, a security guard observed Brooks leave the grounds with
two stolen tires. Surveillance video footage of both events supported the guards’ trial testimony.
The trial court granted Brooks’s pretrial motion to sever the September 2008 and November
2008 charges, and Brooks initially proceeded to trial on the September entering event. The jury
convicted Brooks of entering without breaking with intent to commit larceny in violation of
MCL 750.111. Later, Brooks pleaded nolo contendere to charges arising from the November
2008 plant entry.
Brooks urges this Court to reverse his jury trial conviction because the trial court violated
his right to self-representation. Brooks first expressed a desire to waive his right to counsel at his
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preliminary examination. The district court granted Brooks’s motion, but Brooks allowed his
appointed counsel to take over midway through the hearing.
Brooks reasserted his right of self-representation at a circuit court arraignment before
Wayne Circuit Court Judge Margie R. Braxton. Judge Braxton peremptorily denied Brooks’s
request, ruling, “Well, I’m not going to let him represent himself. Someone has to assist him and
right now [defense counsel] you are assisting him. You can’t come here and take over. I’m
sorry. No.” Shortly thereafter, Brooks interrupted to reiterate his desire to represent himself:
[Brooks.] Okay. But, see, I’m having problems with my lawyer. . . . First
of all, he come to me asking me questions with information that . . . . They say I
got a plea. He give me no full information on anything. . . . Then he’s contesting .
. . when I explained to him the time limits and statutes on certain things and—
The Court. Oh, so you’re going to be the lawyer.
[Brooks.] I asked to represent myself. [Emphasis added.]
The Court. You know more about the statute than he does?
[Brooks.] Yeah. Your Honor, I have studied law for a while.
The Court. Well, I can tell you’ve been studying but you got a little bit of
it. You got to get the whole dose.
[Brooks.] I got the whole dose . . . .
The Court. . . . What is the problem with your lawyer?
[Brooks.] My problem with my lawyer is that it’s the responsibility and
the duty of the client and the lawyer to put full representation of the defense and
he’s lacking. . . . The first thing he didn’t do at this Court when I asked him to
come and explain to me that I had already had time served probation, I had asked
him to come here and see what the plea agreement was. He didn’t give me the
full scope of the plea. What am I supposed to do, plea in the blind? . . .
The Court. From listening to you, I suspect you didn’t give him an
opportunity. . . . [To Defense Counsel] Do you want to represent him because the
information he’s given me in terms of what you have not done is insufficient for
me to replace you. Do you want to try to work with him or assist him if he
chooses to represent himself? That’s the only question I need answered from you.
Defense Counsel. Your Honor, I’ll do the best I can working with him.
Somebody is going to have to work with him for sure.
The Court. In this courtroom I will not let him represent himself without
the assistance of an attorney. So, if you want to be that man, you can be.
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May I suggest this to you. I know that you’re fully versed in the law.
What you need to do is to listen to what he has to tell you and in turn not both of
you talking at once. You tell him what your perspective is but be courteous
enough to listen to what he’s trying to tell you and I’m sure he’ll do the same for
you.
At the arraignment’s conclusion Brooks explained to the court, “I take psychotropic
drugs because I’m bipolar. Sometimes people think because you take medication, they kind of
give you a stigma and that’s what I’m feeling from this individual that he feels that I’m mentally
deficient in understanding what’s going on.” Judge Braxton observed that Brooks appeared
“pretty smart in some aspects because you’re smart enough to use five or six names to be
deceptive.”
After the arraignment, Brooks and appointed defense counsel attended a calendar
conference and pretrial hearing conducted by Wayne Circuit Court Judge Daniel P. Ryan.
Although Brooks complained that his attorney had withheld information and failed to file a
motion to sever the charges, Brooks did not voice a desire to proceed without counsel.
At a June 26, 2009 final pretrial conference, Brooks advised Judge Ryan that he had
previously sought to represent himself, and “I would like to invoke—I would like the court to
know that I wanted to invoke my right—inalienable rights secured by the constitution, but it
seems like we get—.” Judge Ryan interrupted Brooks, inquiring whether an August 10, 2009
trial date suited appointed counsel. At the conclusion of the conference, Judge Ryan revisited
Brooks’s self-representation motion and denied it, reasoning as follows:
The defendant has not convinced the court that he’s met the standards as
required for self-representation as articulated in both state and federal case law. . .
. [T]here are certain requirements that he needs to demonstrate to the court and he
has not done so, including familiarity with the court rules, the rules of procedure,
the rules of criminal procedure specifically, the rules of evidence as well as
familiarity with the substantive law.
. . . [A]lthough the defendant does have a right to self-representation, he
only has the right if he meets certain criteria for the case law. So [defense
counsel], you’re still on the file unless he hires somebody else . . . .[1]
Brooks then advised Judge Ryan that medical personnel at the Wayne County Jail refused to give
him necessary psychotropic medications, and appealed for the court’s intervention. Judge Ryan
replied, “And we can add another reason why he . . . has not met the criteria for selfrepresentation because he has not been receiving his medication.” Judge Ryan continued that the
1
Although the prosecutor insists that Brooks merely mentioned his self-representation right “in
the past tense,” we construe Brooks’s remarks in the same manner as did Judge Ryan: that
Brooks sought to emphasize his continuing, ongoing quest to waive representation by counsel.
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lack of medication “impacts upon your ability as to making a decision as to whether you want to
represent yourself.”
When the jury trial began on August 17, 2009, Brooks asserted that defense counsel had
been “forced upon [him] as attorney,” contended that he had never been arraigned in the district
court, and argued that his mental health advocate should have participated in the selection of
appointed defense counsel. “Point two,” Brooks enumerated, “I was refused my constitutional
right to represent myself by the court who, under the cover of law, attempted to cover these
violations and due process of Constitutional Rights.” When Judge Ryan asked Brooks if he
would like to enter a plea instead of proceeding to trial, Brooks again complained that no one had
as yet supplied his psychotropic medication. Judge Ryan answered:
[B]ased upon my observation, there is absolutely nothing that indicates to
me that there’s anything wrong with you. You just gave a 15-minute, wellorganized by paragraph one, two, three and four argument with reference to
various different court rules, case law, federal statutes, federal constitutional
provisions. There is absolutely nothing that would indicate to me that you have
any issues at all here today. And, in fact, you were standing while you gave that
whole presentation so . . . there’s nothing that indicates . . . that there’s anything
physically wrong. You’re coherent, you’ve got organized thoughts, you
organized it by paragraph.
After a discussion about various evidentiary issues, Brooks presented the following
inquiry:
[Brooks.] . . . If . . . Your Honor feel [sic] that I’m coherent and I was
able to address this, then . . . why I’m not able to represent myself to the jury?
The Court. Because you don’t have a firm grasp of all of the substantive
rules of criminal law that apply. Although your argument was well-organized, it
does not reflect an understanding of what Michigan criminal law is . . . .
Brooks interrupted to ask nonsensical questions concerning whether Michigan is a state or a
republic, and Judge Ryan answered, “The State of Michigan, both rules of procedure, rules of
evidence and the substantive law which applies in this particular case, you’ve not demonstrated
that you have a particular ability, and so [defense counsel] will represent you in this particular
matter. Is there anything else?” Brooks posed further questions regarding the definition of “the
state of Michigan” and whether a state court qualified as an “Article 1” court.
The Court. See, the reason you’re not representing yourself is that you’re
misdirected in your efforts. . . . You’re more concerned about what the definition
of the state is than what the crimes are which are currently pending before you,
whether an Article 1 court or whether this is a state court.
[Brooks.] Because this is a jurisdictional matter, and if I don’t bring it up,
Your Honor, then when it comes time for appeal, then . . . I’ll have no recourse.
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The Court. And you know what? You’re not going to be successful on
your appeal. All right. Go ahead.
Before counsel delivered opening statements, Brooks propounded a query about other
acts evidence. Brooks believed that a federal rule of evidence governed the proceeding because
he could not locate the corresponding Michigan rule. The court responded simply, “Which is
why I didn’t let you represent yourself.”
Brooks eventually entered a nolo contendere plea to the charges arising from the
November 2008 incident. During the plea colloquy, Brooks aired several grievances about his
appointed attorney and complained that the court was “steady forcing me to represent him [sic].”
Brooks refused to sign his plea agreement while represented by appointed counsel, but agreed to
proceed with the assistance of another attorney who serendipitously had appeared in the
courtroom on an unrelated matter. Notably, Judge Ryan readdressed Brooks’s claimed need for
medication, informing Brooks that the jail doctor confirmed “you’re not being treated nor
diagnosed for any psychiatric or psychological condition. . . . The doctor said there’s absolutely
no need for the medication. . . . [T]here’s no evidence that there’s a psychological issue.”
At the sentencing hearing for all three convictions, defense counsel announced that
Brooks had refused to speak with him. Brooks reiterated his criticisms about his attorney’s
performance and challenged his counsel’s appointment without the advice of his mental health
advocate. Brooks further complained that the jail had withheld his psychotropic medication
throughout the proceedings. Brooks then recapped his desire for self-representation:
Point two, I was refused my constitutional right by the court not to be able
to represent myself. Even the court said he find [sic] that I’m quite coherent.
And even though I would have took [sic] my chances, I still would have been able
to probably ask more [sic] better questions, put up a better defense than the farce
that this guy represented as my lawyer. I was refused my constitutional right
under the current law and the court said that I couldn’t represent myself, which
was violation of my constitutional right, both state and federal.
Brooks later told Judge Ryan that he wanted to proceed in propria persona on appeal and asked
how to obtain a copy of the lower court file. Brooks raised the issue as follows a final time
before Judge Ryan imposed sentence:
[Brooks.] I just want to know for the record why wasn’t I allowed to
represent myself?
The Court. Because [defense counsel] has a firm grasp on Michigan law,
criminal law, Michigan Rules of Evidence and Michigan rules of procedure,
which you did not demonstrate to the court that you possessed. Although you
have obviously access to a lot of federal things, those are not necessarily the same
rules of procedure that we apply. And you did not necessarily demonstrate an
ability or competence in the substantive matter which was before the court. . . .
[Y]ou did not necessarily meet the standard which would permit you to
adequately represent yourself. . . . [Y]ou’re extremely bright, you’re extremely
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intelligent, as you noted, you’re extremely competent to handle your personal and
business affairs, it does not necessarily mean that you’re capable and competent
of handling your criminal affairs, so [defense counsel] was your court-appointed
attorney.
***
There’s [sic] cases out there . . . which dictate the standard that I’m to
apply in assessing a request for self-representation and you did not meet those
criteria . . . .
On appeal, Brooks challenges the denial of his right to self-representation and the
proportionality of his sentence.
II. ANALYSIS
A. SELF-REPRESENTATION PRINCIPLES
In relation to a defendant’s waiver of the right to counsel and invocation of the right to
self-representation, this Court reviews for clear error a trial court’s findings of fact and de novo
the trial court’s application of legal and constitutional standards. People v Russell, 471 Mich
182, 187; 684 NW2d 745 (2004). Deprivation of a defendant’s Sixth Amendment right of selfrepresentation constitutes a structural error demanding automatic reversal. Neder v United
States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 35 (1999), citing McKaskle v Wiggins, 465 US
168; 104 S Ct 944; 79 L Ed 2d 122 (1984).
In Faretta v California, 422 US 806, 814; 95 S Ct 2525; 45 L Ed 2d 562 (1975), the
United States Supreme Court held that the Sixth Amendment implicitly embodies the right of
self-representation in criminal proceedings.
The language and spirit of the Sixth Amendment contemplate that counsel, like
the other defense tools guaranteed by the Amendment, shall be an aid to a willing
defendant—not an organ of the State interposed between an unwilling defendant
and his right to defend himself personally. To thrust counsel upon the accused,
against his considered wish, thus violates the logic of the Amendment. . . . Unless
the accused has acquiesced in such representation, the defense presented is not the
defense guaranteed him by the Constitution, for, in a very real sense, it is not his
defense. [Id. at 820-821.]
The Michigan Constitution explicitly protects a defendant’s right to self-representation. Const
1963, art 1, § 13.2 Our Legislature reinforced these dual constitutional protections by enacting
MCL 763.1.3
2
The language in 1963 Const, art 1, § 13 states, “A suitor in any court of this state has the right
to prosecute or defend his suit, either in his own proper person or by an attorney.”
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The right to present one’s own defense correlates with an equally fundamental right—the
right to counsel. Faretta, 422 US at 814. In balancing these two essential but potentially
conflicting rights, a court must “indulge every reasonable presumption against waiver” of the
right to counsel, and should not allow a defendant to proceed without counsel if any doubt casts a
shadow on the waiver’s validity. People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004),
citing Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938), overruled in part
on other grounds Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d (1981); People v
Adkins (After Remand), 452 Mich 702, 721, 727; 551 NW2d 108 (1996), criticized on other
grounds in Williams, 470 Mich at 641 n 7.
To aid trial courts in ascertaining whether a defendant has knowingly, intelligently and
voluntarily relinquished the assistance of counsel, our court rules set forth guidelines for an
effective waiver colloquy. According to the relevant portions of MCR 6.005(D):
The court may not permit the defendant to make an initial waiver of the
right to be represented by a lawyer without first
(1)
advising the defendant of the charge, the maximum possible prison
sentence for the offense, any mandatory minimum sentence required by law, and
the risk involved in self-representation, and
(2)
offering the defendant the opportunity to consult with a retained
lawyer or, if the defendant is indigent, the opportunity to consult with an
appointed lawyer.
This court rule embodies the notion that explicit elucidation of a defendant’s comprehension of
the risks he faces by representing himself and the defendant’s willingness to undertake those
risks reduces the likelihood that a court will inaccurately presume an effective waiver of the right
to counsel. If a defendant waives counsel, MCR 6.005(E) instructs that
the record of each subsequent proceeding (e.g., preliminary examination,
arraignment, proceedings leading to possible revocation of youthful trainee status,
hearings, trial, or sentencing) need only show that the court advised the defendant
of the continuing right to a lawyer’s assistance (at public expense if the defendant
is indigent) and that the defendant waived that right. Before the court begins such
proceedings,
(1)
wanted; or
the defendant must reaffirm that a lawyer’s assistance is not
3
MCL 763.1 reads, “On the trial of every indictment or other criminal accusation, the party
accused shall be allowed to be heard by counsel and may defend himself, and he shall have a
right to produce witnesses and proofs in his favor, and meet the witnesses who are produced
against him face to face.”
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(2)
if the defendant requests a lawyer and is financially unable to
retain one, the court must appoint one; or
(3)
if the defendant wants to retain a lawyer and has the financial
ability to do so, the court must allow the defendant a reasonable opportunity to
retain one.
B. APPLICATION OF THE LEGAL PRINCIPLES
Each of Brooks’s three entreaties to proceed in propria persona triggered the trial court’s
responsibility to “engage, on the record, in a methodical assessment of the wisdom of selfrepresentation by the defendant.” Adkins, 452 Mich at 721. Compliance with MCR 6.005(D)
and (E) goes part of the way toward establishing that a defendant has knowingly and voluntarily
waived counsel. In addition to conducting an inquiry substantially consistent with the court
rules, a court must also determine that (1) the defendant’s waiver of counsel is unequivocal,
People v Anderson, 398 Mich 361, 366-367; 247 NW2d 857 (1976); (2) the defendant “actually
does understand the significance and consequences” of self-representation, Faretta, 422 US at
835; and (3) self-representation will not “disrupt, unduly inconvenience, and burden the court
and the administration of the court’s business.” Russell, 471 Mich at 190; Anderson, 398 Mich
at 368. Clearly, “the more searching the inquiry at this stage the more likely it is that any
decision on the part of the defendant is going to be truly voluntary . . . .” Adkins, 452 Mich at
726 n 26.
The trial court failed to meaningfully assess the validity of Brooks’s waiver of counsel.
The record reveals that neither Judge Braxton nor Judge Ryan attempted to engage in the
“methodical assessment of the wisdom of self-representation” dictated by the court rules.
Adkins, 452 Mich at 721. Our Supreme Court has frequently reiterated that substantial
compliance with the waiver of counsel procedures enumerated in MCR 6.005(D) amply
safeguards constitutional standards, but we discern no indication that either judge even consulted
the court rules before rejecting Brooks’s self-representation request. Nor did either judge pursue
a dialogue with Brooks testing the unequivocality or voluntariness of his waiver of counsel, or
the knowing and understanding nature of Brooks’s self-representation request.
Instead of following the brightly illuminated path paved by the court rules, Judges
Braxton and Ryan invoked Brooks’s lack of legal ability as a ground for denying his motion for
self-representation. Technical knowledge of legal matters simply has no relevance to an
assessment of a knowing exercise of the right to self-representation. Indiana v Edwards, 554 US
164, 172; 128 S Ct 2379; 171 L Ed 2d 345 (2008). The United States Supreme Court made this
point crystal clear in Faretta, 422 US at 836:
We need make no assessment of how well or poorly Faretta had mastered the
intricacies of the hearsay rule and the California code provisions that govern
challenges of potential jurors on voir dire. For his technical legal knowledge, as
such, was not relevant to an assessment of his knowing exercise of the right to
defend himself.
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The Michigan Supreme Court echoed this sentiment in Anderson, 398 Mich at 368, explaining
that a defendant’s competence to waive counsel “does not refer to legal skills[.]” Thus, Judge
Ryan improperly denied self-representation on the basis of Brooks’s inability to show
“familiarity with the court rules, the rules of procedure, the rules of criminal procedure
specifically, the rules of evidence as well as familiarity with the substantive law.”
In summary, Judges Braxton and Ryan contravened the court rules and the case law by
failing to engage in an appropriate dialogue with Brooks before ruling on his right to selfrepresentation. Instead, both judges employed a universally repudiated legal knowledge test.
Contrary to Judge Ryan’s ruling, Brooks’s inability to display a “firm grasp of all of the
substantive rules of criminal law that apply” simply could not serve as a ground for denying his
right to represent himself. 4 Compelling a criminal defendant to demonstrate some level of
mastery of court procedures and expert legal erudition effectively eviscerates the constitutional
right of self-representation. Given that the denial of Brooks’s right of self-representation
amounts to a structural error, we vacate his jury trial conviction of entering without breaking and
remand for a new trial. On retrial, we caution the trial court to carefully consider the applicable
court rule and case law criteria should Brooks again express a desire to waive counsel, and to
make sufficient record findings to facilitate future review by this Court.
C. BROOKS’S MENTAL COMPETENCE TO WAIVE COUNSEL
The prosecutor contends that despite any error arising from the trial court’s disregard of
the court rules, Brooks lacked the mental capacity to make a knowing and intelligent decision to
waive counsel. The prosecutor theorizes that Brooks’s frequent references to his unfulfilled need
for psychotropic medication prove this point. We readily acknowledge that a court may deny
self-representation where a defendant does not possess the requisite mental competence to handle
the task.
[T]he Constitution permits judges to take realistic account of the particular
defendant’s mental capacities by asking whether a defendant who seeks to
conduct his own defense at trial is mentally competent to do so. That is to say,
the Constitution permits States to insist upon representation by counsel for those
competent enough to stand trial . . . but who still suffer from severe mental illness
to the point where they are not competent to conduct trial proceedings by
themselves. [Edwards, 554 US at 177-178.]
In Edwards, the United States Supreme Court distinguished between a defendant’s competency
to stand trial and his “mental capacity to conduct his trial defense” without counsel. Id. at 174.
4
Once a court allows a defendant to proceed in propria persona, the defendant must abide by the
court rules, rules of evidence, and other rules of procedure. McKaskle, 465 US at 173. A
defendant’s failure or refusal to behave responsibly in the courtroom may justify a trial court’s
decision to terminate self-representation. Faretta, 422 US at 834 n 46. However, our review of
the record has uncovered no evidence that Judge Ryan found Brooks’s conduct unduly
disrupting, inconvenient, or burdensome.
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Recognizing “the complexity of the problem” presented by a competency determination, id. at
175, the Supreme Court proposed that the trial judge “will often prove best able to make . . . finetuned mental capacity decisions, tailored to the individualized circumstances of a particular
defendant.” Id. at 177.
Given that Brooks tended to present somewhat irrelevant and confused arguments and
insisted on his need for medication, the trial court legitimately questioned Brooks’s competence
to waive counsel. However, the court neglected to undertake any competency assessment.
Specifically, the court never questioned whether Brooks was “competent” to stand trial, and
failed to explore Brooks’s competency to waive his right to counsel or to conduct his own
defense. These distinct competency standards mandate differing inquiries. A defendant may not
stand trial if his mental incapacity interferes with his “ability to consult with his lawyer.”
Edwards, 554 US at 170. A defendant may not waive his right to counsel if his mental
incompetency renders him unable to understand the proceeding and make a knowing, intelligent
and voluntary decision. Godinez v Moran, 509 US 389, 401 n 12; 113 S Ct 2680; 125 L Ed 2d
321 (1993); Faretta, 422 US at 835; Anderson, 398 Mich at 368. Yet, “[i]n certain instances an
individual may well be able to satisfy [the] mental competence standard [to stand trial], for he
will be able to work with counsel at trial, yet at the same time he may be unable to carry out the
basic tasks needed to present his own defense without the help of counsel.” Edwards, 554 US at
175-176. The Supreme Court acknowledged that “[d]isorganized thinking, deficits in sustaining
attention and concentration, impaired expressive abilities, anxiety, and other common symptoms
of severe mental illnesses can impair the defendant’s ability to play the significantly expanded
role required for self-representation even if he can play the lesser role of represented defendant.”
Id. at 176 (internal quotation omitted). The record contains no hint that the trial court recognized
these critical distinctions, or endeavored to engage in an inquiry intended to meaningfully
acquaint itself with any aspect of Brooks’s competency at the time of trial.
Moreover, the trial court expressed inconsistent and fundamentally contradictory findings
regarding Brooks’s mental competency. At the June 26, 2009 pretrial conference, the court
stated that Brooks’s inability to take his psychotropic medications “impact[ed his] ability as to
making a decision as to whether [he] want[ed] to represent [him]self.” This statement potentially
could have supported a finding that Brooks did not have the requisite competence to knowingly,
intelligently and voluntarily waive his right to counsel.5 Yet at trial, the court rejected Brooks’s
complaint that jail medical personnel had improperly withheld his medication, opining that
Brooks appeared organized and coherent, and did not require psychotropic medications. And
when the trial court finally pursued information relevant to Brooks’s mental capacity, it found
that “there’s absolutely no need for the medication. . . . [T]here’s no evidence that there’s a
psychological issue.” Nothing in the record suggests that Brooks was severely mentally ill, as
was the defendant in Edwards, or that Brooks was only borderline competent or incompetent to
5
We note that Judge Ryan reached this conclusion without the benefit of consultation with any
mental health professionals. Judge Ryan did not learn until the sentencing phase that jail medical
personnel had denied Brooks’s request for psychotropic medication because the jail doctor
determined that Brooks suffered from no mental infirmity.
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waive counsel. By the time of sentencing, the court’s earlier concerns about Brooks’s mental
capacity to offer an unequivocal, knowing, intelligent and voluntary waiver had apparently
evaporated. Consequently, we reject that the trial court properly denied self-representation on
the basis of Brooks’s mental incapacity.
II. SENTENCING DEPARTURE
Brooks also challenges the trial court’s reliance on an incorrect sentencing grid and the
court’s decision to depart from the guidelines and impose a life sentence for the entering without
breaking with intent to commit larceny conviction stemming from the September 2008 incident.
Notwithstanding that we are reversing Brooks’s conviction, we analyze the sentencing issue to
prevent further error on remand.
The prosecution concedes that the trial court incorrectly identified Brooks’s conviction as
the Class D offense of breaking and entering. The jury actually convicted Brooks of entering
without breaking, a Class E offense. Brooks has a total prior record variable (PRV) score of 100,
placing him in PRV Level F, and he has a total offense variable (OV) score of 6, placing him in
OV Level I. The recommended minimum sentencing guidelines range for a fourth habitual
offender on a Class E offense in the F-I cell is nine to 46 months. This recommended minimum
sentence range falls within a “straddle cell.”
When the upper and lower limits of the recommended minimum sentence
range meet certain criteria, a defendant is eligible for an intermediate sanction. If
the upper limit of the minimum sentence range exceeds 18 months and the lower
limit is 12 months or less, the defendant’s sentence range is in a “straddle cell.”
When the range is in a straddle cell, the sentencing court may elect either to
sentence the defendant to a prison term with the minimum portion of the
indeterminate sentence within the guidelines range or to impose an intermediate
sanction, absent a departure. [People v Harper, 479 Mich 599, 617; 739 NW2d
523 (2007).]
MCL 769.31 governs the imposition of a sentence for straddle cells: “(a) ‘Departure’
means a sentence imposed that is not within the appropriate minimum sentence range . . . . (b)
‘Intermediate sanction’ means probation or any sanction, other than imprisonment in a state
prison or state reformatory, that may lawfully be imposed . . . .” The statute enumerates a
nonexhaustive list of intermediate sanctions, including mental health treatment. MCL
769.31(b)(vi).
Here, the trial court declined to impose an intermediate sanction or a minimum sentence
within the guidelines range. Rather, the court imposed a life sentence because Brooks was a
“career criminal” and the time had come for him to “retire.” The court noted that Brooks had 12
prior felony convictions and three prior misdemeanors dating back to 1982. The court
characterized Brooks as a “Habitual 12, well beyond Habitual 4.” In relation to Brooks’s
recidivist behavior, the court stated, “Every time you are released and are in society, you commit
another felony.” The court additionally cited the fact that Brooks had been on parole when he
committed the instant offenses.
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MCL 769.34(3) affords the trial court discretion to depart from the minimum sentencing
guidelines range “if the court has a substantial and compelling reason for that departure and
states on the record the reasons for departure.” A court should only find reason to depart from
the recommended sentence in “exceptional cases.” People v Babcock, 469 Mich 247, 257; 666
NW2d 231 (2003). The court must rely on factors that are “objective and verifiable” and that
“keenly or irresistibly grab [the court’s] attention.” Id. The factors also must be “of considerable
worth in deciding the length of a sentence.” Id. The court may only base its departure “on an
offense characteristic or offender characteristic already taken into account” in the sentencing
guideline variables if “the characteristic has been given inadequate or disproportionate weight.”
MCL 769.34(3)(b). Moreover, the particular sentence imposed must qualify as proportionate to
the specific defendant’s conduct and criminal history. People v Smith, 482 Mich 292, 300; 754
NW2d 284 (2008).
We review for clear error the trial court’s reasons for imposing an upward departure, but
consider de novo whether the reasons are objective and verifiable. We review for an abuse of
discretion the court’s view that substantial and compelling reasons justify a departure. We also
review for an abuse of discretion the court’s ruling that a particular sentence is proportionate to
the crime and offender. “A trial court abuses its discretion if the minimum sentence imposed
falls outside the range of principled outcomes.” Id.
The PRVs took into account Brooks’s “career of crime,” but the trial court believed that
the guidelines afforded this characteristic inadequate weight. Brooks had committed a total of 12
prior felonies. In light of Brooks’s felony convictions, he scored 50 points for PRV 1 (defendant
with two high severity felony convictions) and 30 points for PRV 2 (defendant with four or more
low severity felony convictions). Brooks’s three prior misdemeanor convictions formed the
basis for his PRV 5 score of 10 points (defendant with three or four misdemeanor convictions),
and his status as a parolee when he committed the current offense dictated his score of 10 points
for PRV 6 (offender relationship to the criminal justice system).
It seems that six of Brooks’s 10 prior low severity felony convictions received inadequate
weight or consideration in the guidelines as they could not further increase Brooks’s score for
PRV 2. When calculating PRV 2, a court scores a defendant 10 points for two prior low severity
felony convictions and an additional 10 points each for a third and fourth conviction. If the
Legislature had authorized a court to continue scoring in that pattern, the trial court could have
scored PRV 2 at 90 points, giving Brooks a total PRV score of 160. However, the addition of 60
points to Brooks’s total PRV score would not have altered his sentence because Brooks already
had reached the highest category of repeat offenders—PRV Level F.6
The extent of Brooks’s criminal history and recidivist behavior constitutes an objective
and verifiable fact. The court could easily determine from the sentencing information report that
Brooks rapidly committed new criminal offenses on his release from prison for prior offenses. It
is well established that a court may consider a defendant’s past criminal history and failures at
6
In Smith, 482 Mich at 306, the Supreme Court observed that a court could justify a particular
upward departure by placing “the specific facts of a defendant’s crimes in the sentencing grid.”
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rehabilitation as objective and verifiable factors establishing “a firm probability of future”
criminal activity. People v Horn, 279 Mich App 31, 45; 755 NW2d 212 (2008); People v
Solmonson, 261 Mich App 657, 671; 683 NW2d 761 (2004). The excessive number of criminal
convictions in this case “keenly and irresistibly grabs [one’s] attention” and is of “considerable
worth” in fashioning Brooks’s sentence for his current offense. We also agree with the trial
court that the guidelines afforded inadequate weight to Brooks’s recidivist behavior. Scoring
160 points to more accurately portray the extent of Brooks’s criminal history, his PRV score
would reach more than double the highest PRV score considered in the guidelines.
Nevertheless, the trial court abused its discretion by imposing a life sentence for an
offense that otherwise warranted a minimum sentence of less than four years. The legislative
sentencing guidelines reserve life sentences for murder convictions and Class A felonies. Even
within Class A, which contains the highest severity felonies, only defendants with the highest
combinations of OV and PRV scores merit life sentences. To the contrary, for a Class E felony
the highest possible minimum sentence equals 76 months, or six years and four months. A life
sentence falls outside the range of principled outcomes, even for a repeat offender, where the
current charge essentially amounted to trespassing. In the event that Brooks is convicted of
entering without breaking on retrial, we caution the trial court to impose a proportionate sentence
that takes into consideration the offender and the offense.
We vacate Brooks’s conviction and sentence for entering without breaking with the intent
to commit larceny arising from the September 2008 incident, and remand for a new trial
consistent with this opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Michael J. Talbot
/s/ Joel P. Hoekstra
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