PEOPLE OF MI V JOSEPH RAYMOND ZIEGLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 24, 1998
Plaintiff-Appellee,
v
JOSEPH RAYMOND ZIEGLER a/k/a RAYMOND
JOSEPH ZIEGLER,
No. 192701
Oakland Circuit Court
LC No. 95-136880-FH
Defendant-Appellant.
Before: Talbot, P.J., and Fitzgerald and Young, Jr., JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of assaulting a prison employee, MCL
750.197c; MSA 28.934(3), and resisting and obstructing an officer, MCL 750.479; MSA 28.747. He
was sentenced as an habitual offender, third offense, MCL 769.11; MSA 28.1083, to four to eight
years’ imprisonment for the assault conviction and one to two years’ imprisonment for the resisting and
obstructing conviction. Defendant now appeals as of right. We reluctantly reverse and remand for a
new trial because, under controlling Supreme Court precedent, the record does not establish a valid
waiver of defendant’s right to counsel.
I. Background
This case arises out of an October 1994 scuffle between defendant and officers at the Oakland
County Jail. On June 27, 1995, the first day of trial, the court briefly discussed with defendant and his
assigned counsel defendant’s desire to represent himself:
Mr. Kaluzny: Your Honor, I think that the Court should inquire of my client if
he has any response to the Court’s questions because he’s going to be trying the case. .
..
***
The Court:
So, he’s chosen to represent himself, is your position?
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Mr. Kaluzny: That’s correct, your Honor.
The Court:
Mr. Ziegler, is that correct?
Defendant:
Yes, ma’am.
The Court:
All right. You’re going to represent yourself?
Defendant:
Yes.
The Court:
Okay. You can be seated.
Mr. Kaluzny: Judge, I intend to sit here and assist . . .
Defendant:
There’s a few . . .
Mr. Kaluzny: Excuse me. Assist the defendant any way he needs assistance
as far as the law.
The Court:
Okay.
Mr. Kaluzny: I’ve asked him if he wanted paper and pencil and he said no.
The Court:
Okay. Mr. Ziegler, you’ll have Mr. Kaluzny’s services if you
want it. If you don’t want it, you represent yourself. But understand, I’ll hold you to
the same standards I would any attorney were he or she in your position.
Defendant chose to proceed pro se and, after three days of testimony, the trial court declared a mistrial
when the jury failed to reach a verdict.
In November 1995, a second trial was held. Defendant again requested to represent himself.
The ensuing colloquy between the court and defendant was even shorter than at the first trial:
The Court:
Are you going to be representing yourself?
Defendant:
Yup.
The Court:
Then put your appearance on the record.
Defendant:
Oh, yeah. This is Joseph Ziegler, the defendant, representing
himself.
This time, defendant was convicted and sentenced as outlined above.
II. Waiver of Right to Counsel at Trial
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While defendant raises several issues on appeal, we find only one to contain merit requiring
reversal. Defendant argues that the trial court erred in permitting defendant to proceed pro se at the
second trial because the court failed to substantially comply with MCR 6.005(D)1 and People v
Anderson, 398 Mich 361; 247 NW2d 857 (1976), by expressly advising defendant of the dangers and
disadvantages of self-representation.
At the outset, we note that this is a case in which defendant clearly made a knowing, voluntary,
and intelligent waiver of his right to counsel. The record is replete with evidence that defendant is an
experienced “jailhouse lawyer” who both prides himself on and is boastful of his legal knowledge and
skills.2 Without the slightest hesitation, defendant chose to represent himself despite the fact that
experienced trial counsel had been appointed for him. Therefore, we believe that the record below
establishes that defendant’s right to counsel and his competing right to self-representation have been
adequately protected.
Unfortunately, in People v Adkins (After Remand), 452 Mich 702, 726; 551 NW2d 108
(1996), our Supreme Court adopted a talismanic “substantial compliance” test for determining whether
the requirements for a valid waiver of counsel have been met. As fully explained below, because the
initial waiver procedures utilized in this case fail the Adkins substantial compliance test, defendant has
successfully created and successfully deployed an appellate parachute protecting him from the knowing
and intelligent decision he made to represent himself.
In Adkins, supra at 722, the Supreme Court summarized the three main requirements set forth
in Anderson with which a court must comply before permitting a defendant to waive his right to counsel
and proceed in propria persona:
First, the defendant’s request must be unequivocal. Second, the defendant must assert
his right to self-representation knowingly, intelligently, and voluntarily. 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 his choice is made with eyes open.” Third, the court
must establish that the defendant will not unduly disrupt the court while acting as his own
counsel. [Citations omitted; see also People v Dennany, 445 Mich 412, 438; 519
NW2d 128 (1994).]
In addition to the Anderson requirements, the trial court must comply with MCR 6.005(D) by
offering the assistance of an attorney, and by advising the defendant about the possible punishment for
the charged offense and the risk involved in self-representation. Adkins, supra at 722; Dennany,
supra at 439. The Adkins Court described substantial compliance as requiring that the court “discuss
the substance of both Anderson and MCR 6.005(D) in a short colloquy with the defendant, and make
an express finding that the defendant fully understands, recognizes, and agrees to abide by the waiver of
counsel procedures.” Id. at 726-727. Disclaiming that it was adopting a litany approach, the Court
further explained that
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the substantive requirements of Anderson and the court rule are worthy of attention in
every initial waiver of counsel by a criminal defendant. The Anderson and court rule
requirements are merely vehicles to ensure that the defendant knowingly and intelligently
waived counsel with eyes open. A particular court’s method of inquiring into a
nd
satisfying these concepts is decidedly up to it, as long as the concepts in these
requirements are covered. Id. at 725.
In any event, trial judges are directed to “create a record that establishes the trial court’s compliance
with the court rules and Anderson during the initial waiver process.” Id. at 723. Following the initial
waiver, MCR 6.005(E)3 requires the trial court at subsequent proceedings to reaffirm on the record the
defendant’s decision to proceed without an attorney. People v Lane, 453 Mich 132, 137; 551 NW2d
382 (1996).
On this record, we think it is “‘inconceivable that defendant did not know what he was doing’”
when he unequivocally waived his right to counsel and proceeded pro se in the second trial. People v
Mack, 190 Mich App 7, 16; 475 NW2d 830 (1991) (citation omitted).4 Defendant has had extensive
personal involvement with the criminal justice system and demonstrated a complete understanding of the
nature of his rights.5 Defendant successfully represented himself at the first trial in this case, and has
performed legal work for other inmates. Thus, we believe that to permit defendant under these
circumstances
to indulge in the charade of insisting on a right to act as his own attorney and then on
appeal to use the very permission to defend himself in pro per as a basis for reversal of
conviction and a grant of another trial is to make a mockery of the criminal justice
system and the constitutional rights sought to be protected. [People v Morton, 175
Mich App 1, 8-9; 437 NW2d 284 (1989).]
If we were operating under the standard set forth by the concurring opinion in Adkins, we would
conclude that defendant “‘made his decision to proceed pro se “with eyes open”’” and therefore
knowingly, intelligently, and voluntarily waived counsel in the second trial. Adkins, supra at 737
(Boyle, J. and Riley, J., concurring) (citations omitted). As Justice Boyle noted in her concurring
opinion in Dennany,
this approach is consistent with that taken in Anderson, in which this Court held that
although “the trial court did not explicitly inform defendant Overby of the dangers and
disadvantages of self-representation . . . the sophisticated and comprehensive nature of
defendant Overby’s expressed reasons for dissatisfaction with his appointed counsel,
together with his history of personal involvement with the criminal justice system,
indicates that he knew what he was doing and made his choice with eyes open.”
[Dennany, supra at 464 (Boyle, J., concurring) (emphasis in original) (citation
omitted).]
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Thus, under the more expansive view of Justices Boyle and Riley, we would affirm defendant’s
conviction because it is apparent on this record that defendant made an informed choice as to how he
wished to exercise his constitutional rights.
However, we are bound to apply the substantial compliance test espoused by the majority in
Adkins, which requires “that the court discuss the substance of both Anderson and MCR 6.005(D) in
a short colloquy 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 727
(emphasis added).6 Here, the trial court completely failed to advise defendant of the dangers and
disadvantages of self-representation either at the first trial or at the retrial. 7 Indeed, the court did not
discuss the substantive requirements of Anderson or the court rule at all. Therefore, under the
substantial compliance test of Adkins, the court did not establish a valid waiver of defendant’s right to
counsel.
We acknowledge that, “[w]here there is error but it is not one of complete omission of the court
rule and Anderson requirements, reversal is not necessarily required.” Dennany, supra at 439.
However, we can only conclude that the error in this case is one of complete omission and, therefore,
one that necessitates reversal not only under Dennany, but under the Adkins substantial compliance test
as well. We have no choice but to reverse defendant’s convictions and sentences and remand for a
new trial.
In light of our decision on this issue, there is no need to address defendant’s remaining
arguments, all of which lack merit.
Reversed and remanded for a new trial. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Robert P. Young, Jr.
1
MCR 6.005(D) provides:
If the court determines that the defendant is financially unable to retain a lawyer, it must
promptly appoint a lawyer and promptly notify the lawyer of the appointment. 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.
2
At one of the proceedings taking place before defendant’s first trial, during which the court discussed
with defendant his dissatisfaction with appointed counsel, the following exchange took place:
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Defendant:
-- you know, [defense counsel] knows you people, you people
are his friends and stuff like that. I don’t have no problem with understanding that he’s
been practicing law for 22 years but –
The Court:
Defendant:
what’s going on.
How long have you been doing it, Mr. Ziegler?
I got an associate’s but I’m conscious of the system. I know
The Court:
That’s what I say. You’ve been practicing law probably as
long as [defense counsel] has.
Defendant:
I know enough. I put in 24 hours a day. You guys put in eight
hours and go home. I put in 24 hours a day. . . .
At defendant’s second trial, during his opening statement, defendant informed the jury,
I know the court rules. I’m very familiar with the court rules. You’ll hear testimony that
I have an associate’s in criminal law. I’m a [litigant] against the Oakland County
Sheriff’s Department.
3
MCR 6.005(E) provides:
If a defendant has waived the assistance of a lawyer, 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 show only 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)
the defendant must reaffirm that a lawyer's assistance is not wanted; or
(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.
4
During his opening statement, defendant explained to the jury, “I’m practicing my Constitutional right
to represent myself in this case.”
5
As the prosecution notes, defendant has had multiple prior felony convictions.
6
The trial court also failed to reaffirm defendant’s waiver at sentencing as required by MCR 6.005(E).
We note that if failure to comply with MCR 6.005(E) were the only issue, it would have been subject to
harmless-error analysis. See Lane, supra at 139-140.
7
While the prosecution contends that the trial court fully complied with MCR 6.005 and Anderson at a
proceeding taking place on June 19, 1995, the first scheduled day of the first trial (the trial was
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eventually postponed to June 27, 1995), our review of the transcript from that proceeding reveals that
this was not the case. We requested that the author of the prosecution’s appellate brief, Assistant
Prosecuting Attorney Rae Ann Ruddy, appear at oral argument with an explanation, but were informed
that Ms. Ruddy was unavailable. In any event, we admonish the office of the Oakland County
Prosecuting Attorney for making this misrepresentation.
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