PEOPLE OF MI V SCOTT EDWARD HILDEBRANDAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 19, 1998
Branch Circuit Court
LC No. 94-115845-FH
MERVIN DUANE HAGUE,
PEOPLE OF THE STATE OF MICHIGAN,
Branch Circuit Court
LC No. 95-005882-FH
MICHAEL ROLAND THORN,
PEOPLE OF THE STATE OF MICHIGAN,
Branch Circuit Court
LC No. 95-005892-FH
DAVID IRVANGELO GARDEMANN,
PEOPLE OF THE STATE OF MICHIGAN,
Branch Circuit Court
LC No. 95-025893-FH
SCOTT EDWARD HILDEBRAND,
Before: Corrigan, C.J., and Doctoroff and Fitzgerald, JJ.
In these consolidated cases, defendants appeal by right their convictions by jury of obtaining
more than $100 by false pretenses, MCL 750.218; MSA 28.415, securities fraud, MCL 451.501;
MSA 19.776(101), and conspiracy to commit those offenses, MCL 750.157a; MSA 28.354(1).
Defendant Thorn was also convicted of possession of a firearm by a felon, MCL 750.224f; MSA
28.421(6). The trial court sentenced defendant Hague to concurrent terms of imprisonment of 2½ to 10
years for his convictions. The court sentenced defendant Gardemann to concurrent terms of
imprisonment of 3 to 10 years and defendant Hildebrand to concurrent terms of imprisonment of 6 1/3
to 10 years for their convictions. The court enhanced defendant Thorn’s sentences as a second felony
offender under MCL 769.10; MSA 28.1082 and sentenced him to concurrent terms of imprisonment of
5 to 15 years for obtaining money by false pretenses and securities fraud, 5 to 10 years for conspiracy
to commit the offenses, and 1 to 7½ years for possession of a firearm. We affirm.
This case arises from defendants’ acts in soliciting money from Michigan residents to share in
the proceeds of two lawsuits against the federal government. The prosecutor alleged that defendants
falsely represented that two lawsuits were either in progress or successfully completed and that qualified
individuals who filed “claims” with defendants (at $300 per claim) could receive millions of dollars from
the lawsuit proceeds. The prosecutor established that, contrary to defendants’ statements, the lawsuits
had been dismissed, no class action existed, and defendant Hildebrand had not been appointed a
receiver to disburse millions of dollars from the purported proceeds of one of the suits. The prosecutor
further established that, contrary to defendants’ representations, individuals could not share in the
proceeds purportedly recovered from the federal government by merely paying defendants $300 and
filing a claim.
Attorney Robert E. Anderson represented defendants Hague, Thorn, and Gardemann at trial,
whereas defendant Hildebrand proceeded in propria persona. The jury returned guilty verdicts on the
I. Defendants Hague, Thorn & Gardemann
A. Joint Representation
Defendants Hague, Thorn, and Gardemann argue that their attorney’s joint representation of
them denied them their right to effective assistance of counsel. This Court reviews constitutional issues
de novo. People v Houstina, 216 Mich App 70, 73; 549 NW2d 11 (1996). In undertaking our
review, however, we recognize the trial court’s superior ability to evaluate witness credibility and will
defer to the court’s findings when the determination turns on such an evaluation. C.f. People v Catey,
135 Mich App 714, 726; 356 NW2d 241 (1984).
The right to counsel under the Sixth Amendment entails “a correlative right to representation that
is free from conflicts of interest.” Wood v Georgia, 450 US 261, 271; 101 S Ct 1097; 67 L Ed 2d
220 (1981). Multiple representation does not violate the Sixth A
mendment unless it gives rise to a
conflict of interest. Cuyler v Sullivan, 446 US 335, 348; 100 S Ct 1708; 64 L Ed 2d 333 (1980). If
the trial court fails to conduct an inquiry after a timely objection or when it knows or reasonably should
know a particular conflict exists, the reviewing court presumes prejudice and will reverse. Id.; United
States v Levy, 25 F3d 146, 154 (CA 2, 1994). The Supreme Court, however, has never held that
“the possibility of prejudice that ‘inheres in almost every instance of multiple representation’ justifies the
adoption of an inflexible rule that would presume prejudice in all such cases.” Burger v Kemp, 483 US
776, 783; 107 S Ct 3114; 97 L Ed 2d 638 (1987). Instead, the defendant must demonstrate that
counsel actively represented conflicting interests and that an actual conflict of interest adversely affected
his counsel’s performance. Id.; Cuyler, supra at 350. If the defendant meets this burden, this Court
presumes prejudice and must reverse his conviction because unconstitutional multiple representation is
never harmless error. Burger, supra at 783; Cuyler, supra at 349; Holloway v Arkansas, 435 US
475, 487-491; 98 S Ct 1173; 55 L Ed 2d 426 (1978).
In People v Larry Smith, 456 Mich 543, 556-557; ___ NW2d ___ (1998), the Michigan
Supreme Court recently discussed the United States Supreme Court’s treatment of ineffective
assistance claims involving conflicts of interest, stating as follows:
In People v Pickens, 446 Mich 298; 521 NW2d 797 (1994), this Court
adopted the ineffective assistance of counsel standard articulated by Strickland v
Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To prove a claim
of ineffective assistance of counsel under Pickens and Strickland, a defendant must
show that counsel’s performance fell below an objective standard of reasonableness
and that the deficient performance prejudiced the defense so as to deny defendant a fair
trial. Strickland, pp 688-689. In dicta however, Strickland cited Cuyler’s rule for
cases involving ineffective assistance of counsel claims premised on an actual conflict of
interest. Id., p 692. Cuyler calls for a heightened standard in conflict of interest claims.
In circumstances involving a conflict of interest, Cuyler stated that “counsel breaches
the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult
to measure the precise effect on the defense of representation corrupted by conflicting
interests.” Strickland, p 692. This heightened standard is not a rule of prejudice per
se; rather, “[p]rejudice is presumed only if the defendant demonstrates that counsel
‘actively represented conflicting interests’ and that ‘an actual conflict of interest
adversely affected his lawyer’s performance.’” Id., quoting Cuyler, supra, pp 348
In considering an alleged conflict of interest based on trial counsel’s pending prosecution in the same
county as the defendant whom he represented, the Court rejected a per se rule, favoring “the reasoned
approach of Cuyler, supra.” Id. at 558.
We begin our analysis by considering whether the trial court fulfilled its inquiry obligation under
the Sixth Amendment and complied with MCR 6.005(F), the court rule regarding joint representation.
Under the Sixth Amendment, the trial court must conduct an inquiry after a timely objection or when it
knows or reasonably should know a particular conflict exists. Levy, supra at 154. To satisfy the Sixth
Amendment, the trial court must “investigate the facts and details of the attorney’s interest to determine
whether the attorney in fact suffers from an actual conflict, a potential conflict, or no genuine conflict at
all.” Id. at 153. In doing so, the court is entitled to rely on counsel’s representations regarding the
possibility of conflicts. Id. at 154; United States v Crespo de Llano, 838 F2d 1006, 1012 (CA 9,
In this case, the trial court queried defendants and counsel regarding the joint representation:
THE COURT: Please be seated.
I wanted to take up a couple of matters preliminarily before the jury is brought
We discussed these in chambers before the jury selection process.
First of all, the Court is required to inquire of the three Defendants who are
represented by Mr. Anderson to make sure that they are aware and wish to waive their
right to have separate counsel.
First of all, Mr. Hague, you are aware that you could be represented by another
DEFENDANT HAGUE: Mr. Anderson is my attorney.
THE COURT: No, I know that. What I’m saying is you understand that you
have the right to be represented by an attorney separate from the attorney representing
Mr. Thorn and Mr. Gardemann?
DEFENDANT HAGUE: I understand.
THE COURT: Okay. And it is your choice and desire to be represented by
Mr. Anderson, even though he is representing the two Co-Defendants at the same time?
DEFENDANT HAGUE: Yes, it is.
THE COURT: Okay. Mr. Thorn, the same questions of you; you are aware
that you have the right to be represented by counsel separate and apart from the
attorney representing Mr. Gardemann and Mr. Hague?
DEFENDANT THORN: Yes, sir.
THE COURT: And it is your desire, nevertheless, to be represented by Mr.
DEFENDANT THORN: It is.
THE COURT: Thank you.
And, Mr. Gardemann, the same questions of you, sir; you, too, are aware that
you have the right to be represented by an attorney separate and apart from the
attorney representing the two other Co-Defendants?
DEFENDANT GARDEMANN: Yes, I do.
THE COURT: And understanding that it is your desire to, nevertheless, be
represented as well by Mr. Anderson?
DEFENDANT GARDEMANN: Yes, sir.
THE COURT: Thank you.
And, Mr. Anderson, as also is required of the Court to inquire of you, do you
know of any possible conflict in your representing the three Defendants?
MR. ANDERSON: I do not, at this time, know of any reason to believe that
any of the defenses offered by any of these three Defendants would be inconsistent. I
so (sic) I do not believe that there is any conflict in representing these three Defendants
in the same case.
THE COURT: Thank you.
Assuming arguendo that the multiple representation triggered the trial court’s inquiry obligation,1
we conclude that the exchange between the trial court, counsel, and defendants satisfied the Sixth
Amendment because the court was entitled to rely on counsel’s representation that no conflict existed.
Levy, supra at 154; Crespo de Llano, supra at 1012. We agree, however, with defendants’ assertion
that the trial court did not strictly comply with the requirements of MCR 6.005(F), which provides in
Whenever two or more defendants who have been jointly charged or whose cases have
been joined are represented by the same retained lawyer or lawyers associated in the
practice of law, the court must inquire into the potential for a conflict of interest that
might jeopardize the right of each defendant to the undivided loyalty of the lawyer. The
court may not permit the joint representation unless:
(1) the lawyer or lawyers state on the record the reasons for believing that joint
representation in all probability will not cause a conflict of interests:
(2) the defendants state on the record after the court’s inquiry and the lawyer’s
statement, that they desire to proceed with the same lawyer; and
(3) the court finds on the record that joint representation in all probability will not
cause a conflict of interest and states its reasons for the finding.
The trial court’s failure to comply in full with MCR 6.005(F), however, does not, in itself,
constitute error requiring reversal. People v LaFay, 182 Mich App 528, 531; 452 NW2d 852
(1990); People v Gamble, 124 Mich App 606, 611; 335 NW2d 101 (1983). Defendants must show
that counsel actively represented conflicting interests and that an actual conflict of interest adversely
affected counsel’s performance. Burger, supra at 783; Cuyler, supra at 350; Larry Smith, supra at
557. An actual conflict is evidenced “if, during the course of the representation, the defendants’
interests diverge with respect to a material factual or legal issue or to a course of action.” Sullivan v
Cuyler, 723 F2d 1077, 1086 (CA 3, 1983); accord Kirby v Dutton, 831 F2d 1280, 1282 (CA 6,
In this case, defendants contend that a conflict of interest arose in Anderson’s representation
when Hague informed Anderson of the substance of his intended trial testimony. According to
Anderson, Hague informed him shortly before trial that he would testify that he told Thorn and
Gardemann that Hildebrand was stealing money and that the “money wasn’t going to Colorado.” On
the basis of Hague’s prior statements, Anderson believed that Hague would commit perjury if he
testified in accordance with his expressed intentions. He confronted Hague with his belief, but Hague
did not waiver regarding his planned testimony. Anderson determined that he could not permit Hague
to perjure himself and ultimately decided not to call any of defendants at trial. Anderson testified at
Thorn’s Ginther2 hearing that he advised Thorn not to testify because he could not allow Hague to
testify. Anderson maintained that allowing Thorn and Gardemann to testify would harm Hague’s case
because the jury would draw a negative inference from the fact that codefendants chose to testify while
Hague did not. Defendants argue that they each were denied the effective assistance of counsel by
Anderson’s representation of them after he learned of Hague’s planned testimony.
We reject defendant Hague’s claim because he has not shown that an actual conflict of interest
adversely affected Anderson’s performance. Anderson certainly acted properly in advising Hague not
to testify. People v LaVearn, 448 Mich 207, 217; 528 NW2d 721 (1995). Therefore, the conflict of
interest did not adversely affect Anderson’s representation of Hague because, under the standards of
ethical conduct, Anderson would have had to act in the same manner even if he had not represented the
other defendants. Id.
We likewise conclude that the conflict did not adversely affect Anderson’s representation of
defendants Thorn and Gardemann. Initially, we agree that an attorney’s conduct in basing his advice to
one client on what is good for another client can satisfy the Cuyler test because it may adversely effect
counsel’s performance. See Castillo v United States, 34 F3d 443, 446 (CA 7, 1994). We employ,
however, the helpful test adopted by the First, Second, and Third Circuits to determine adverse effect
on the basis of an attorney’s alleged omissions:
First, [the defendant] must demonstrate that some plausible alternative defense strategy
or tactic might have been pursued. He need not show that the defense would
necessarily have been successful if it had been used, but that it possessed sufficient
substance to be a viable alternative. Second, he must establish that the alternative
defense was inherently in conflict or not undertaken due to the attorney’s other loyalties
or interests. [United States v Fahey, 769 F2d 829, 836 (CA 1, 1985); accord
United States v Gambino, 864 F2d 1064, 1070 (CA 3, 1988), and Winkler v
Keane, 7 F3d 304, 309 (CA 2, 1993).]
In this case, the defense tactic of calling all defendants to testify was not a plausible alternative
strategy. It did not possess sufficient substance to amount to a viable alternative. The prosecutor
presented substantial evidence to establish defendants’ fraudulent actions. In the face of the
uncontradicted evidence, trial counsel proffered a defense that hinged on the meaning of the words
defendants used to solicit the “claims.” Trial counsel essentially argued that because defendants and the
claimants did not ascribe the legal meanings to words such as “class action” and “receiver,” defendants
did not engage in fraud. Regarding this defense strategy, the trial court remarked:
[Q]uite frankly, I was very impressed, to the point of wondering seriously what
the impact of the argument and the use of the strategy would be upon the jury. Thinking
that, indeed, it may well have won the day.
Had defendants testified in this case, they would have had to explain o cross-examination certain
compelling evidence, such as the whereabouts of the money collected from the claimant-victims. They
would also have had to explain their conduct in continuing to accept claims after they possessed
documents clearly stating that the court had dismissed the lawsuits. This testimony would certainly have
undermined their defense.
Further, we recognize the trial court’s superior position to evaluate Anderson’s credibility.
Catey, supra at 726. The trial court denied Thorn’s motion for new trial, reasoning in part:
[T]he court does not accept the argument that simply because Mr. Anderson
would not call Mr. Hague as a witness that he would not call Mr. Thorn. And, indeed,
it was clear from the testimony that it was, in fact, not Mr. Anderson’s decision, but the
Defendant’s alone not to testify during the course of the trial.
We, like the trial court, also view Anderson’s testimony with some skepticism. The trial court noted as
The Court, as an aside, would indicate that it was clear, from Mr. Anderson’s
testimony, that he was emotionally involved, had represented [Thorn] in other matters,
as well. And, as he testified, regarded Mr. Thorn as a friend.
We therefore conclude that the defense tactic of calling all defendants to testify was not a viable
alternative under the circumstances of this case. Accordingly, trial counsel’s active representation of
conflicting interests does not require reversal because it did not adversely affect his performance.
Cuyler, supra at 350; Larry Smith, supra at 557.
B. Defendants Thorn & Gardemann’s Remaining Issues
Defendants Thorn and Gardemann argue that they were denied the effective assistance of
counsel by Attorney Anderson’s conduct and decisions at trial. We disagree. To establish ineffective
assistance of counsel, defendants must prove that counsel’s performance fell below an objective
standard of reasonableness and that the representation prejudiced them so as to deprive them of a fair
trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). Defendants must overcome the
presumption that the challenged action is sound trial strategy. People v Daniel, 207 Mich App 47, 58;
523 NW2d 830 (1994). Regarding the second requirement, defendants must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been different. People
v Johnson, 451 Mich 115, 122; 545 NW2d 637 (1996).
We reject defendants Thorn and Gardemann’s contention that Anderson’s presentation of a
meritless defense denied them a fair trial. Although counsel erroneously believed that the court would
grant a directed verdict because the victims did not believe that they had been defrauded, counsel’s
representation did not deny defendants a fair trial. Defendants have not demonstrated that counsel’s
action prejudiced them. Pickens, supra at 338. Counsel presented a defense that turned on the
meaning of the words defendants used to solicit claims. The trial court observed that this defense
actually caused it to question whether the jury would return a guilty verdict. Therefore, in the end,
counsel provided constitutionally adequate representation.
Defendant Thorn also argues that Anderson’s failure to testify on his behalf and move to sever
the gun charge denied him the effective assistance of counsel. We disagree. Anderson’s testimony at
the Ginther hearing revealed that his potential testimony was marginally relevant. We conclude under
these circumstances that Anderson did not err by failing to testify for Thorn because, as Anderson
stated at the hearing, Thorn would not have trusted another attorney. Regarding the gun charge,
Anderson properly relied on Thorn’s representation that he had not been convicted of the underlying
felony as stated in the information. Further, Anderson presented a witness who testified that he, not
Thorn, actually possessed the weapons. We therefore conclude that Anderson’s decision did not so
prejudice defendant Thorn as to deny him a fair trial.
Defendant Thorn additionally contends that Anderson erred in not challenging the
constitutionality of the gun charge. We disagree. The offense of possession of a firearm by a felon,
MCL 750.224f; MSA 28.421(6), neither violates a person’s right to bear arms under Const 1963, art
1, § 6, nor the Ex Post Facto Clauses of the United States and Michigan Constitutions.
People v Green, __ Mich App __, __; __ NW2d __ (Docket No. 194995, issued 3/20/98) slip op p
4; People v Tice, 220 Mich App 47, 52; 558 NW2d 245 (1996). Counsel was not required to pursue
this futile motion. Daniel, supra at 59. Accordingly, in docket numbers 187322 and 187323, we
affirm defendants Thorn and Gardemann’s convictions.
C. Defendant Hague’s Remaining Issues
We reject defendant Hague’s assertion that he was denied the effective assistance of counsel by
attorney Anderson’s conduct and decisions at trial. Because defendant did not raise this issue below,
review is foreclosed unless the alleged deficiency is apparent on the record. People v Barclay, 208
Mich App 670, 672; 528 NW2d 842 (1995).
First, Anderson’s failure to move for a separate trial did not deny defendant Hague the effective
assistance of counsel. Counsel employed an acceptable strategy of presenting a common defense to the
charged offenses. C.f. Holloway, supra at 482-483. This Court will not substitute its judgment for that
of counsel on matters of trial strategy. People v Sawyer, 222 Mich App 1, 3; 564 NW2d 62 (1997).
Similarly, trial counsel’s decision not to sever defendant Thorn’s gun charge did not sufficiently prejudice
defendant Hague to require a new trial.
We likewise reject defendant Hague’s argument that Anderson should have claimed that the
prosecutor offered him immunity from prosecution and objected to the jury instruction regarding
securities fraud. The record does not reflect that the prosecutor violated the terms of the purported
immunity agreement. Further, the jury instructions fairly presented the issues to be tried and sufficiently
protected defendant’s rights. People v Perez-DeLeon, 224 Mich App 43, 53; 568 NW2d 324
(1997). Counsel was not required to pursue these futile matters. Daniel, supra at 59.
Defendant Hague also argues that Anderson’s failure to object to evidence regarding the Iowa
Attorney General’s actions to halt defendants’ allegedly fraudulent practices denied him the effective
assistance of counsel. We disagree. Defendant has not shown that, had counsel acted differently, the
result of this case would have been different and the proceeding was fundamentally unfair or unreliable.
People v Poole, 218 Mich App 702, 718; 555 NW2d 485 (1996).
Defendant Hague further argues that he is entitled to resentencing because his presentence
investigation report was factually inaccurate and the trial court improperly scored offense variable 9.
We disagree. The court indicated that it would disregard the references to uncharged alleged criminal
activity and other allegedly improper behavior. The court affirmatively stated that it was not “inflamed”
by the presentence report. The court further indicated that it would consider defendant’s statements
regarding his asserted lesser role in the conspiracy in fashioning a sentence. Thus, the trial court
properly resolved defendant’s challenges to his presentence report by indicating that it would not
consider the allegedly inaccurate information. People v Brooks, 169 Mich App 360, 365; 425 NW2d
555 (1988). Finally, regarding offense variable 9, defendant does not state a cognizable claim on
appeal because he merely attacks the sufficiency of the evidence to support the trial court’s scoring
decision. People v Mitchell, 454 Mich 145, 177-178; 560 NW2d 600 (1997). Accordingly, in
docket number 186698, we affirm defendant Hague’s convictions and sentence.
II. Defendant Hildebrand
Defendant Hildebrand argues that the trial court erred in allowing him to waive his right to
counsel and proceed in propria persona. We disagree. This Court reviews constitutional issues de
novo. People v Houstina, 216 Mich App 70, 73; 549 NW2d 11 (1996). Regarding challenges to the
trial court’s decision to allow a defendant to represent himself, this Court reviews the record to
determine whether the trial court substantially complied with the waiver of counsel procedures set forth
in People v Anderson, 398 Mich 361; 247 NW2d 857 (1976), and MCR 6.005(D). People v
Adkins, 452 Mich 702, 706; 551 NW2d 108 (1996); People v Ahumada, 222 Mich App 612, 614;
564 NW2d 188 (1997). We are mindful, however, that the trial judge is in the best position to
determine whether a defendant knowingly and voluntarily waived his right to counsel. Adkins, supra at
This Court recently summarized the Anderson and court rule requirements in Ahumada, supra
There are three main requirements with which a court must comply in this context.
First, the defendant’s request must be unequivocal. [Adkins, supra at 722.] Second,
the defendant must assert his right to self-representation knowingly, intelligently, and
voluntarily. Id. In assuring a knowing and voluntary waiver, the trial court must make
the defendant aware of the dangers and disadvantages of self-representation, so that the
record will establish that he knows what he is doing and that his choice is made with
eyes open. Id. Third, the court must establish that the defendant will not unduly disrupt
the court while acting as his own counsel. Id. In addition, MCR 6.005 requires the trial
court to offer the assistance of an attorney and to advise the defendant about the
possible punishment for the charged offense.
Under the substantial compliance test, the trial court must discuss the substance of these requirements
with the defendant and make an express finding that the defendant fully understands, recognizes, and
agrees to abide by the waiver of counsel procedures. Adkins, supra at 726-727.
We conclude that the trial court substantially complied with the waiver of counsel procedures in
this case. The record reflects that defendant Hildebrand notified the court five days before trial that he
wished to discharge his counsel and proceed in propria persona. Defendant unequivocally requested to
represent himself during the following exchange:
[The Prosecutor]: The only thing I want to make clear – and I understand what
Mr. Hildebrand is saying about not finding any attorneys in this state. What I want clear
on the record is that he wants to represent himself.
THE COURT: And, under the circumstances as you have described them, is
that the case, Mr. Hildebrand?
DEFENDANT HILDEBRAND: Yes, it is.
The record also evinces a knowing, intelligent, and voluntary waiver of defendant’s right to
counsel. The trial court explained to defendant that he had a right to be represented by an attorney and
informed him of the risks inherent in his decision to represent himself. The court elicited defendant’s
admission that he was not a lawyer and explained that he likely did not have the same skill and
knowledge regarding court rules and procedures as an attorney. Defendant stated that he understood
those risks, but did not believe that any properly registered or licensed attorneys existed in Michigan.
The trial court delved into defendant’s belief and learned that defendant believed that attorneys must be
registered with the Secretary of State. The trial court explained to defendant that no such requirement
existed and Michigan allows attorneys to practice in the state if they receive permission from the
Michigan Supreme Court. Defendant stated that he understood, but steadfastly maintained that, under
his definition of a licensed attorney, none existed in Michigan. The trial court further advised defendant
that it believed that representation by counsel would be in his best interest. Defendant again stated that
he understood the risks and desired to represent himself. His only concern involved obtaining his case
file from defense counsel. Counsel gave defendant the file, whereupon the trial court permitted defense
counsel to withdraw and allowed defendant to represent himself at trial.
Defendant correctly notes that the trial court did not offer him the opportunity to consult with an
attorney regarding his decision and did not inform him of his maximum sentence. We nevertheless
conclude that the trial court substantially complied with the waiver procedure. Defendant knew of his
maximum sentence because he received a copy of the information at his arraignment that listed both the
charges and the maximum penalties. Defendant signed a written acknowledgment that he either read the
information or had it explained to him. Regarding an opportunity to consult with counsel, defendant
repeatedly stated that he could not locate a properly registered attorney in Michigan. Thus, an
opportunity to consult with counsel would not affect defendant’s decision. We therefore conclude that
the trial court substantially complied with the requirements of Anderson and the court rule by conveying
the substance of those requirements to defendant and eliciting a knowing, intelligent, and voluntary
waiver of defendant’s right to counsel. Defendant made his decision to proceed in propria persona with
his eyes open.
Defendant Hildebrand next argues that the trial court erred in admitting evidence of citizen
complaints and actions by the Iowa Attorney General to halt defendants’ allegedly fraudulent practices.
Defendant, however, did not preserve this issue by objecting below. People v Mayfield, 221 Mich
App 656, 661; 562 NW2d 272 (1997). “It is well established that objections to admissibility not
properly raised at trial cannot be later asserted on appeal.” People v Kilbourn, 454 Mich 677, 685;
563 NW2d 669 (1997). No miscarriage of justice would result from our failure to review in this case.
Mayfield, supra at 661.
Defendant Hildebrand further contends that the trial court abused its discretion by basing its
decision to sentence him to a term that exceeded the guidelines range on factors already taken into
consideration in the guidelines. We disagree. This Court reviews a sentencing decision for an abuse of
discretion. People v Odendahl, 200 Mich App 539, 541; 505 NW2d 16 (1993). In this case, the
trial court properly departed from the guidelines’ range of one to three years because the guidelines did
not adequately account for defendant’s role as the leader of the conspiracy. People v Coulter, 205
Mich App 453, 456; 517 NW2d 827 (1994). That the guidelines also accounted for this factor did not
preclude a departure. People v Granderson, 212 Mich App 673, 680; 538 NW2d 471 (1995). We
agree with the trial court that the recommended range did not reflect the seriousness of the instant
offense. The record reflects that defendant Hildebrand led a conspiracy that took advantage of
people’s mistrust of the federal government and swindled money from those who could least afford it.
Under these circumstances, the trial court did not abuse its discretion in sentencing defendant to a term
that is proportionate to the seriousness of the offense and the offender. People v Milbourn, 435 Mich
630, 667; 461 NW2d 1 (1990). We therefore affirm defendant Hildebrand’s convictions and sentence
in docket number 187865.
/s/ Maura D. Corrigan
/s/ Martin M. Doctoroff
/s/ E. Thomas Fitzgerald
The requirement under MCR 6.005(F) that the trial court inquire into multiple representation in all
cases in which two or more defendants are jointly charged or their cases otherwise joined is broader
than that required under the Sixth Amendment. We do not suggest, as Justice Brennan would have held
in Cuyler, supra at 351-353 (Brennan, J. concurring), that multiple representation in a joint trial always
triggers the trial court’s Sixth Amendment inquiry obligation.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).