PEOPLE OF MI V THOMAS LEE COLLINS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 10, 2002
Plaintiff-Appellee,
v
No. 235552
Lake Circuit Court
LC No. 00-003673-FC
THOMAS LEE COLLINS,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 239913
Lake Circuit Court
LC No. 00-003673-FC
THOMAS LEE COLLINS,
Defendant-Appellant.
Before: Sawyer, P.J., and Gage and Talbot, JJ.
PER CURIAM.
These consolidated appeals arise from defendant’s jury-trial conviction of armed robbery,
MCL 750.529. The trial court sentenced defendant to thirteen years and eight months to thirty
years in prison. Defendant appeals as of right. We affirm.
Docket No. 235552
In Docket No. 235552, defendant argues that he was denied his right to counsel.
Defendant maintains that he is entitled to a new trial because the trial court failed to comply with
the required waiver procedures before allowing him to waive his right to counsel. We disagree.
The Sixth Amendment right to counsel encompasses the right of self-representation.
People v Russell, ___ Mich App ___; ___ NW2d ___ (2002) (Docket No. 230382, rel’d
11/08/02), slip op p 2, citing Faretta v California, 422 US 806, 821; 95 S Ct 2525; 45 L Ed 2d
562 (1975). “In Michigan, the right of self-representation is explicitly recognized by our
Constitution and by statute.” Id., citing Const 1963, art 1, § 13; MCL 763.1; People v Adkins
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(After Remand), 452 Mich 702, 720; 551 NW2d 108 (1996). “[B]ecause self-representation
involves forgoing the right to counsel, a defendant must knowingly and intelligently waive his
right to counsel before being permitted to represent himself.” Russell, supra, citing Faretta,
supra.
Trial courts must substantially comply with the waiver of counsel procedures set forth in
People v Anderson, 398 Mich 361; 247 NW2d 857 (1976), and MCR 6.005(D) before granting a
defendant’s request to proceed in propria persona. People v Ahumada, 222 Mich App 612, 614;
564 NW2d 188 (1997), citing Adkins, supra at 706.
After careful review of waiver of counsel case law, [the Supreme Court]
extrapolated three main requirements that a court must comply with in the waiver
of counsel context. People v Anderson, supra at 366-367. First, the defendant’s
request must be unequivocal. Id. at 367. 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.”
Id. at 368. Third, the court must establish that the defendant will not unduly
disrupt the court while acting as his own counsel. [Adkins, supra at 721-722
(footnote omitted).]
The trial court must also comply with MCR 6.005(D), which requires the court to advise 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 to offer the
defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the
opportunity to consult with an appointed lawyer.
In this case, defendant does not dispute that his request to proceed without counsel was
unequivocal. He argues that his waiver was not knowingly, intelligently, and voluntarily made
because the trial court did not explain the risk involved in self-representation, and also that the
court failed to inform defendant of the maximum possible prison sentence.
We conclude that the trial court substantially complied with the requirements of
Anderson and MCR 6.005(D) before allowing defendant to waive his right to counsel. The
record shows that the court informed defendant that he could retain an attorney, and on more
than one occasion the court cautioned defendant against representing himself. On February 20,
2001, the court addressed defendant’s motion to remove his appointed counsel and to adjourn
trial. The following exchange occurred between the court and defendant:
THE COURT: Okay. Here’s what your situation really is -[Defendant]: Right.
THE COURT: -- is that, you know, you can -- Mr. Collins, you understand all
this in any event. But you can hire any attorney you choose.
[Defendant]: Right.
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THE COURT: Okay. Mr. Schropp has been appointed by the Court to represent
you, and he’s a capable attorney. He’s done, you know, many, many cases in
court. And so you have a choice of proceeding with him or basically proceeding
on your own, I mean. And I would not advise the last one in any event.
[Emphasis added.]
The court adjourned trial to allow defendant to retain an attorney. On May 9, 2001, the first day
of trial, defendant stated that he wanted to represent himself, and the court warned defendant of
the risk of doing so. Defendant then confirmed his decision:
THE COURT: All right. Well, Mr. Collins, apparently Mr. Schropp’s indicating
that you choose to represent yourself, then, today.
[Defendant]: Yes, I do.
THE COURT: All right. You know, he’s apparently advised you against that.
And, you know, I’ll just caution you. I mean, you’ll be held to the same rules and
standards of law as any other attorney. Or, you know, the other side is going to be
obligated to follow the Rules of Evidence and that type of thing, as is your side.
And so those are going to be fairly complicated matters.
And, Mr. Schropp, you can certainly assist and sit at counsel table with
him.
But, Mr. Collins, Mr. Schropp’s probably correct. This is a serious matter,
and you may be better off having an attorney represent you. But it’s your right to
represent yourself, if you choose.
[Defendant]: Well, I choose to represent myself today. That’s my choice.
We are satisfied that the trial court adequately apprised defendant of the risks of selfrepresentation.
The record shows that the court failed to inform defendant of the maximum possible
sentence as required by MCR 6.005(D)(1). However, “[t]he effectiveness of an attempted
waiver does not depend on what the court says, but rather, what the defendant understands.”
Adkins, supra at 723. At defendant’s arraignment, the court had informed defendant that he
faced a charge of armed robbery which is punishable by life or any term of years. We conclude
that notwithstanding the court’s failure to specifically address the range of possible punishment
at the time defendant asked to represent himself, the court substantially complied with waiver
procedures. Adkins, supra at 731.
Further, a defendant’s conduct, as well as his expressed reasons for dissatisfaction with
his appointed counsel are relevant to a determination whether the defendant’s waiver is
knowingly, intelligently, and voluntarily made. Anderson, supra at 370-371. Viewing
defendant’s request to waive his right to counsel in the context of his prior conduct and
representations to the court, the record demonstrates that defendant “made the decision to
proceed in propria persona, unequivocally and with his eyes open.” Adkins, supra at 731.
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Defendant’s appointed counsel, Mr. Schropp, indicated that defendant had been uncooperative
and refused to provide him with the names of witnesses. Mr. Schropp also told the court that
defendant “very vehemently” advised him not to speak with the witnesses in advance of trial.
Prior to the removal of his counsel, defendant filed two motions in propria persona. At the
February 20, 2001 proceedings, defendant demonstrated at least some familiarity with criminal
process in explaining his reason for wanting to have his attorney removed. The court asked
defendant if he had a reason for wanting his counsel removed and defendant responded as
follows:
Yes, I do. It’s in regard to some written requests that I filed some months
ago – I have a copy of it here – that Mr. Schropp, you know, tends to believe that,
you know, this evidence that I wanted requested, you know, has no merit in this
case. And after I filed the motion which you have, he came to see me and he has
stated that he had received my request but that I could not obtain that evidence
because of the fact there was an ongoing investigation, all right. And so – And
before that, we had a[n] incident where he came to see me and I guess the
prosecution had offered me a five-year cap on a plea agreement, you know, which
is highly out of the question for me taking at this point in time because I’m
innocent of this charge.
And so in doing so, you know, we had a kind of difference of opinion
about the case. He brought up a couple more issues about the case, and he took –
seemed to think that it didn’t hold any merit. And I was kind of confused about
that situation. That’s why I filed a motion to have him removed.
And as far as the situation with Mr. Beason, I wasn’t asking the Court to
appoint him as my attorney; I was letting – trying to let the Court know that I am
in the process of obtaining him as an attorney. I have talked with Mr. Beason
about my case. Only thing I’m waiting on now is for the retainer to be paid to Mr.
Beason. And that’s why I filed a motion to have Mr. Schropp removed, so I could
pay for my own attorney defense – in my own defense.
Now, I also, you know, at this time would like to ask the Court that this
trial date be, you know, adjourned, to allow my new attorney ample time, you
know, to have the basis of the case investigated. I have a full list of witnesses,
documents, which I will want him to have the time to, you know, go over and
research and, you know, so I could have a right to a fair trial.
I understand the prosecution’s part, you know what I’m saying. I can
understand the law with the speedy trial of a hundred and eighty days. I’m
willing to waive that so the – my – so the fact of my fairness of this case would
not be overlooked, you know what I’m saying. I don’t want to put the
prosecution in any predicament by trying to meet the hundred-and-eighty-day
standard, so I would be willing to waive my hundred and eighty days if Mr.
Schropp is removed, to allow my new attorney, which I’m in the process of
hiring, to take this case.
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In view of defendant’s conduct and his statements to the court, we are satisfied that defendant’s
waiver of his right to counsel and decision to represent himself was knowingly, intelligently, and
voluntarily made.
Docket No. 239913
In Docket No. 239913, defendant argues that the trial court erred in finding substantial
and compelling reasons to depart from the sentencing guidelines, that the court based its decision
on factors that are not objective or verifiable, and that the departure from the guidelines
constitutes an abuse of discretion. We disagree.
A trial court must impose a minimum sentence within the sentencing guidelines unless
the court finds substantial and compelling reasons to depart from the guidelines. MCL
769.34(3); People v Hegwood, 465 Mich 432, 437, 439; 636 NW2d 127 (2001); People v
Armstrong, 247 Mich App 423, 425; 636 NW2d 785 (2001). The court must state on the record
the reasons for departure. MCL 769.34(3); Hegwood, supra at 439. Substantial and compelling
reasons should be found to exist only in exceptional cases and the reasons justifying departure
should keenly or irresistibly grab the court’s attention and be recognized as having considerable
worth in determining the length of a sentence. People v Babcock (After Remand), 250 Mich App
463, 466-467; 648 NW2d 221 (2002). The factors the court relies on in determining that there
are substantial and compelling reasons to justify its departure must be objective and verifiable.
Id. at 467. “Objective and verifiable” means that the facts to be considered by the court must be
actions or occurrences that are external to the minds of the judge, defendant, and others involved
in making the decision and must be capable of being confirmed. People v Hill, 192 Mich App
102, 112; 480 NW2d 913 (1991). A court may not base a departure on an offense or offender
characteristic already considered by the guidelines, unless it concludes that the guidelines
provided inadequate or disproportionate weight to that factor, given the facts of the case. MCL
769.34(3)(b); Armstrong, supra.
In reviewing a departure from the guidelines’ range, the existence of a particular factor is
reviewed for clear error, the determination that the factor is objective and verifiable is reviewed
de novo, and the determination that the factor was a substantial and compelling reason for
departure is reviewed for an abuse of discretion. People v Fields, 448 Mich 58, 77-78; 528
NW2d 176 (1995); Babcock, supra at 467.
Defendant’s sentencing guidelines range for his armed robbery conviction was fifty-one
to eighty-five months (four years and three months to seven years and one month). The trial
court departed upward from the guidelines and sentenced defendant to a minimum term of
thirteen years and eight months in prison. The court supported the upward departure by noting
that defendant has exhibited “a continuing criminal lifestyle” and that defendant “has been part
of the system for many, many years, and there just hasn’t been any change.” In particular, the
court stated that defendant’s defense was based on his status as “a major drug dealer” and his
involvement in prostitution through his escort service.
Defendant argues that his prior criminal record has been fully taken into account and was
not inadequately weighed in the guidelines. Defendant also contends that the factors on which
the trial court relied in departing from the guidelines are not verifiable. He claims that the
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evidence at trial showed that defendant sold drugs, but not that he was a “major drug dealer,” and
the fact that defendant had an escort service is not the equivalent of engaging in prostitution.
We conclude that the factors supporting the departure from the guidelines are objective
and verifiable, and that the trial court did not clearly err in finding that such factors exist in this
case. During trial, defendant revealed that he had been involved in criminal activity for which he
had never been caught. Defendant stated, “I’m not saying that I’m the smartest person, because I
was selling drugs. But I was smart enough to sell drugs and not get caught. You got to keep that
in mind.” With respect to the trial court’s characterization of defendant as a “major” drug dealer,
the record evidence supports the court’s finding. Witnesses testified to knowing defendant as a
drug dealer. Francine York testified that she has seen defendant sell cocaine, she has taken
defendant to buy cocaine, and that the cocaine was in “large quantities.” She has seen him weigh
and package cocaine. Although defendant denied that his escort service involved prostitution,
the evidence suggests otherwise. York testified that she was paid to drive the girls who worked
for defendant in his escort service to certain locations. She always waited for the girls in her car,
and the girls never stayed at a given location for more than a couple hours.
On the basis of the record before us, the trial court did not clearly err in finding
substantial and compelling reasons to depart from the guidelines. We find no abuse of discretion
in defendant’s sentence.
Affirmed.
/s/ David H. Sawyer
/s/ Hilda R. Gage
/s/ Michael J. Talbot
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