7.29Circuit Court Arraignment

A.Introduction

The arraignment discussed in this section refers to the arraignment on the information that occurs after a defendant’s preliminary examination, rather than the initial district court arraignment discussed in Chapter 5.1

A defendant has a constitutional right to adequate notice of the charges against him or her. People v Darden, 230 Mich App 597, 600 (1998). A defendant has a right to be arraigned on the information, at which time the information is read to the defendant or the court informs him or her of the substance of the charges contained in the information. MCR 6.113(A); MCR 6.113(B). “‘The purpose of an arraignment is to provide formal notice of the charge against the accused.’” People v Henry (After Remand), 305 Mich App 127, 158 (2014), quoting People v Waclawski, 286 Mich App 634, 704 (2009).

B.Waiver of Arraignment

A defendant who is represented by an attorney has the right to enter a plea of not guilty or to stand mute without formal arraignment. MCR 6.113(C) states:

“A defendant represented by a lawyer may, as a matter of right, enter a plea of not guilty or stand mute without arraignment by filing, at or before the time set for the arraignment, a written statement signed by the defendant and the defendant’s lawyer acknowledging that the defendant has received a copy of the information, has read or had it read or explained, understands the substance of the charge, waives arraignment in open court, and pleads not guilty to the charge or stands mute.”

A trial court may properly accept waiver of arraignment by mail. People v Payne (Scott), 285 Mich App 181, 191-192 (2009).

The written waiver statement must be signed by the defendant and the defendant’s attorney and must acknowledge:

•that the defendant received a copy of the information;

•that the defendant read the information or has had it read or explained to him or her;

•that the defendant understands the substance of the charge against him or her;

•that the defendant waives an arraignment in open court; and

•that the defendant stands mute or pleads not guilty to the offense charged in the information. MCR 6.113(C).

See SCAO Form CC 261, Waiver of Arraignment and Election to Stand Mute or Enter Not Guilty Plea.

Note: MCR 6.113(C) may lack practical application to arraignments conducted by the district court under MCR 6.111. MCR 6.111(A), which provides that a district court judge may conduct the circuit court arraignment immediately following bindover, additionally permits the district court judge to accept a felony plea. Bindover after a defendant’s preliminary examination or waiver presumes that the defendant is present in court.

A waiver of the circuit court arraignment is not invalid “[m]erely because the prosecutor had not filed the information . . . before [the defendant] waived the arraignment[]” if “[the] defendant had an opportunity to review the information before it was filed[] . . . and understood the charges against him[ or her].” People v Henry (After Remand), 305 Mich App 127, 158-159 (2014) (citing People v Nix (Paul), 301 Mich App 195, 208 (2013), and noting that under these circumstances, “[the] defendant [could not] show prejudice[]” resulting from the court’s failure to conduct the circuit court arraignment).

C.Elimination of Circuit Court Arraignment by Local Administrative Order

“A circuit court may submit to the State Court Administrator pursuant to MCR 8.112(B) a local administrative order that eliminates arraignment for a defendant represented by an attorney, provided other arrangements are made to give the defendant a copy of the information and any notice of intent to seek an enhanced sentence[ pursuant to MCL 769.13], as provided in MCR 6.112(F)[2].” MCR 6.113(E). See SCAO Model Local Administrative Order 26—Elimination of Circuit Court Arraignments.

D.Scheduling the Circuit Court Arraignment

“Unless the trial court does the scheduling of the arraignment on the information, the district court must do so in accordance with the administrative orders of the trial court.” MCR 6.110(I). MCR 6.110(I) contemplates the prompt scheduling of an arraignment on an information but also recognizes that practices may vary throughout the state depending on local circumstances. Nonetheless, the subrule appears to require that trial courts establish a local practice by administrative order, subject to Supreme Court review. See MCR 8.112(B)(3).

E.Circuit Court Arraignment in District Court

 MCL 766.13 provides, in relevant part:

“If the magistrate determines at the conclusion of the preliminary examination that a felony has been committed and that there is probable cause for charing the defendant with committing a felony, the magistrate shall forthwith bind the defendant to appear within 14 days for arraignment before the circuit court of that county, or the magistrate may conduct the circuit court arraignment as provided by court rule.” (Emphasis added.)

MCL 600.8311(f) also specifically grants the district court jurisdiction over “[c]ircuit court arraignments in all felony cases and misdemeanor cases not cognizable by the district court under . . . MCL 766.13[,]” and provides further that “[s]entencing for felony cases and misdemeanor cases not cognizable by the district court shall be conducted by a circuit judge.”

MCR 6.113(A) provides that, unless waived or delayed, “or as otherwise permitted by [court rule], the court with trial jurisdiction must arraign the defendant on the scheduled date.” (Emphasis added.) However, MCR 6.111 provides an exception to this general rule. MCR 6.111(A) provides that “[t]he circuit court arraignment may be conducted by a district judge in criminal cases cognizable in the circuit court immediately after the bindover of the defendant.”3

F.Circuit Court Arraignment Procedures

The court must arraign the defendant on the scheduled date, unless the defendant waives arraignment or the court orders a delay for good cause or as otherwise permitted by the court rules. MCR 6.113(A). However, failure to hold the arraignment on the scheduled date constitutes harmless error, unless the defendant demonstrates actual prejudice. Id.; see also People v Nix (Paul), 301 Mich App 195, 208 (2013) (“[a] showing of prejudice is required to merit relief for the failure to hold a circuit court arraignment[]”). “The court may hold the arraignment before the preliminary examination transcript has been prepared and filed.” MCR 6.113(A).

MCR 6.113 addresses the procedures for conducting the post-bindover arraignment.

•The prosecutor must provide the defendant with a copy of the information4 before he or she is asked to plead. MCR 6.113(B).

•Unless waived by the defendant, the court must either tell the defendant the substance of the offense charged in the information or require that the information be read to the defendant. Id.

•The court is required to advise the defendant of his or her plea options if the defendant has waived legal representation. Id.

•Pleas taken in district court under MCR 6.111 after arraignment for an offense not cognizable in district court must conform to the applicable provisions of MCR 6.301, MCR 6.302, MCR 6.303, and MCR 6.304.5 MCR 6.111(C); see also MCR 6.113(B). A district court judge must take a felony plea as provided by court rule if a plea agreement is reached between the parties. MCR 6.111(A).

•Once a plea is taken under MCR 6.111, it is governed by MCR 6.310. MCR 6.111(C).

•A verbatim record of the arraignment must be made. MCR 6.113(B).


Committee Tip:

Before taking a defendant’s plea or proceeding to trial, it is imperative to confirm, on the record, that the defendant has been given a copy of the information.

 

G.Felony Plea in District Court6

MCL 766.4(3) provides:

“A district judge has the authority to accept a felony plea. A district judge shall take a plea to a misdemeanor or felony as provided by court rule if a plea agreement is reached between the parties. Sentencing for a felony shall be conducted by a circuit judge, who shall be assigned and whose name shall be available to the litigants, pursuant to court rule, before the plea is taken.”

See also MCR 6.111(A), which provides, in relevant part:

“A district court judge shall take a felony plea as provided by court rule if a plea agreement is reached between the parties. Following a plea, the case shall be transferred to the circuit court where the circuit judge shall preside over further proceedings, including sentencing. The circuit court judge’s name shall be available to the litigants before the plea is taken.”

MCR 6.301(D) prohibits a court from accepting a defendant’s plea to an offense lesser than the one charged unless the prosecutor consents.7 See Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121-122 (1974) (holding that the prosecutor has discretion to charge a greater, rather than a lesser-included, offense); Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683-684 (1972) (holding that the choice of the statute under which to prosecute the accused is an executive function properly exercised by the prosecutor, not the court).

1    The arraignment discussed in Chapter 5 is the initial arraignment that is conducted in district court for all misdemeanors and felonies. See MCL 600.8311(c); MCR 6.610(D); MCR 6.610(I). The circuit court arraignment discussed in this section occurs either after evidence presented at the preliminary examination establishes probable cause that the defendant committed a felony, or after the defendant validly waives his or her right to a preliminary examination. See MCL 766.13; MCL 600.8311(f); MCR 6.110; MCR 6.111.

2    MCR 6.112(F) provides that “[a] notice of intent to seek an enhanced sentence pursuant to MCL 769.13 . . . must be filed within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if arraignment is waived or eliminated as allowed under MCR 6.113(E), within 21 days after the filing of the information charging the underlying offense.”

3    Although MCL 766.4, MCL 766.13, and MCL 600.8311 were amended, effective May 20, 2014, to specifically authorize district court judges to conduct circuit court arraignments, and although MCR 6.111 was amended, effective January 1, 2015, to reflect these changes, MCR 6.113 has not been amended to reflect the statutory changes.

4    See MCR 6.112 for provisions governing the information.

5    See Chapter 6 for discussion of pleas.

6    See Chapter 6 for discussion of pleas.

7    Although the rules set out in subchapter 6.300 of the Michigan Court Rules are not specifically applicable to district court proceedings, see MCR 6.001(B), these rules may be instructive whenever MCR 6.610 does not supply a rule specific to plea proceedings involving offenses cognizable in district court.