PEOPLE OF MI V ANTHONY GEORGE NOWAKOWSKI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 5, 2009
Plaintiff-Appellee,
v
No. 280420
Allegan Circuit Court
LC No. 07-015071-FH
ANTHONY GEORGE NOWAKOWSKI,
Defendant-Appellant.
Before: Hoekstra, P.J., and Fitzgerald and Zahra, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of operating a motor vehicle while
under the influence of alcoholic liquor, third offense, MCL 257.625(1)(a), (9)(c), operating a
vehicle with a suspended license, second offense, MCL 257.904(3)(b), and unlawful use of a
license plate, MCL 257.256. He was sentenced to concurrent terms of 15 to 48 months’
imprisonment for the OUIL conviction and 41 days for both the driving with a suspended license
and the improper use of a license plate convictions. He appeals as of right. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
On November 5, 2006, Officer Theaker of the Michigan State Police was sent to
investigate a vehicular accident in Allegan County. When Theaker arrived at the intersection, he
found defendant’s Ford Ranger pickup truck off the road with defendant sitting in the driver’s
seat. Defendant initially failed to respond to Theaker. When defendant did respond, his speech
was slurred, he had difficulty standing up, and he was belligerent at times. Defendant told
Theaker that he had been drinking a lot and all day long. Almost three hours after the accident, a
blood draw showed that defendant’s blood alcohol level was .26.
At trial, defendant testified that he had been drinking that day, but he claimed that his
blood alcohol level was not .26 when he went into the ditch. Rather, defendant claimed that he
drank more after going off the road and that is what made his blood alcohol content rise to the
.26 level. Theaker testified that he found no alcohol in or around the vehicle when he arrived at
the accident scene. Defendant, however, claimed there were many empty bottles in the truck
when Theaker arrived.
Defendant represented himself at every stage of the legal proceedings. At each stage, the
trial court advised defendant that he had a right to an attorney, including one appointed by the
court if he could not afford an attorney. The court further told defendant that there were many
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hazards of self-representation and that it was risky to proceed without counsel. But defendant
refused to accept a court-appointed attorney unless the attorney agreed to sign a contract
pledging financial allegiance to defendant. Defendant had other odd interactions with the court
that often digressed from the subject of whether he was voluntarily waiving his right to counsel.
Defendant brought up trademark and copyright issues surrounding the use of his signature, and
he cited a presidential proclamation from the Reagan presidential years. When asked if he
understood the hazards of representing himself, defendant repeatedly told the court that he could
not understand all of the hazards because he did not know all of the “160 million codes and
statutes” that are on the books. Although the trial court found that defendant waived his right to
counsel, the court nevertheless appointed attorney Patrick Burson to appear with defendant
during the proceedings and to assist him if he had any questions along the way.
Despite not having the formal training of an attorney and making many remarks that were
off-topic, defendant interacted with the court directly on point much of the time, as illustrated by
the following exchange:
THE COURT: I want to make clear that you still continue to wish to
represent yourself in this matter?
[DEFENDANT]: Unfortunately yes, I have to.
***
THE COURT: It’s my understanding that you’re voluntarily deciding to
represent yourself. Is that correct?
[DEFENDANT]: That’s correct.
***
THE COURT: You’re indicating that you wish to proceed on your own.
If you have questions during the course of the trial you may ask Mr. Burson,
however, by undertaking the effort to represent yourself you’re undertaking and
accepting the hazards of representing yourself. Do you wish to represent yourself
in this matter?
[DEFENDANT]: Yes, sir.
THE COURT: Alright. So, I will make a finding that you do understand
that you, and voluntarily have made the decision that to represent yourself and
you understand the hazards of doing so.
On appeal, defendant’s sole claim is that the trial court erred in allowing defendant to
represent himself because his waiver was not knowingly and intelligently made. Specifically,
defendant claims that his nonsensical behavior throughout the proceedings showed that his
waiver was not knowingly and intelligently made. A trial court’s findings of fact surrounding a
defendant’s waiver of his right to counsel are reviewed for clear error. People v Russell, 471
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Mich 182, 187; 684 NW2d 745 (2004). But when “a ruling involves an interpretation of the law
or the application of a constitutional standard to uncontested facts,” review is de novo. Id.
The Sixth Amendment, which applies to the states through the Due Process Clause of the
Fourteenth Amendment, guarantees defendants facing incarceration the right to counsel at all
critical stages of the criminal process. People v Willing, 267 Mich App 208, 219; 704 NW2d
472 (2005). Self-representation is also a right guaranteed by federal and state law, but this right
is subject to the trial court’s discretion. Id.
Case law requires a trial court to determine three factors before granting a defendant’s
request to represent himself. Id. Those three factors are: “(1) the defendant’s request is
unequivocal, (2) the defendant is asserting the right knowingly, intelligently, and voluntarily
after being informed of the dangers and disadvantages of self-representation, and (3) the
defendant’s self-representation will not disrupt, unduly inconvenience, and burden the court and
administration of the court’s business.” Id. In addition, the defendant must be advised 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. MCR 6.005(D)(1);
Willing, supra at 220. The defendant must also be offered the opportunity to consult with a
retained lawyer or with an appointed lawyer if the defendant is indigent. MCR 6.005(D)(2);
Willing, supra at 220.
Trial courts must substantially comply with both the court rule requirements and the three
factors set forth in case law. People v Adkins (After Remand), 452 Mich 702, 706; 551 NW2d
108 (1996), overruled in part on other grounds People v Williams, 470 Mich 634; 683 NW2d 597
(2004). “Substantial compliance requires the court to discuss with the defendant the waiver of
counsel requirements set forth in both [case law] and the court rule, and to find that the defendant
fully understands, recognizes and agrees to abide by these procedures.” Id.
The record in this case shows that defendant was advised of the charges against him and
the possible sentences at the arraignment. The trial court repeatedly advised defendant of the
hazards of self-representation and that he would be held to the same standard as an attorney. The
trial court appointed attorney Burson as counsel to advise and consult with defendant at
defendant’s discretion.
Defendant repeatedly stated that he knew there were many statutes and hazards that he
was unaware of, he knew he did not have the training of an attorney, and he understood that he
would have to abide by the court rules and the same standards required of attorneys. Defendant
also plainly stated many times that he did not want court-appointed counsel.
Based on multiple exchanges between the trial court and defendant, including those
where the court advised defendant of the hazards in self-representation, and where defendant
acknowledged that there were many risks, and yet defendant consistently and adamantly refused
counsel, we find that the trial court substantially complied with the requirements of both MCR
6.005(D) and the three factors required by case law. Accordingly, defendant’s waiver of counsel
was valid and he was properly allowed to represent himself.
In addition, we note that during trial defendant presented a coherent and rational defense.
He argued that his .26 blood alcohol level was the result of alcohol he consumed after the
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accident. Defendant attempted to develop this defense through his own testimony and through
the testimony of the prosecution’s witnesses, including the expert toxicologist. Thus,
defendant’s actions at trial do not show that his waiver of the right to counsel could not have
been voluntarily and intelligently made.
Affirmed.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Brian K. Zahra
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