6.11Collateral Attack on Uncounseled Plea or Conviction Used for Purpose of Enhancing Charge or Sentence

The Sixth Amendment right to counsel requires that all criminal defendants must be afforded counsel. Gideon v Wainwright, 372 US 335, 342-345 (1963). A sentencing judge may not consider a conviction that is invalid under Gideon, 372 US 335, when imposing sentence. People v Moore, 391 Mich 426, 440 (1974) (citation omitted). Prior convictions, where the record indicates that there was no counsel or formal waiver of counsel (when a right to counsel existed), may not be used to enhance punishment in a subsequent proceeding. People v Garvie, 148 Mich App 444, 453 (1986); People v Schneider, 132 Mich App 214, 216 (1984) (citations omitted).

MCR 6.610(G)(3) incorporates this constitutional principle:

“Unless a defendant who is entitled to appointed counsel is represented by an attorney or has waived the right to an attorney, a subsequent charge or sentence may not be enhanced because of this conviction and the defendant may not be incarcerated for violating probation or any other condition imposed in connection with this conviction.”

“[A]s a matter of federal law, a criminal defendant possesses the constitutional right to collaterally challenge a prior conviction that is used to enhance a sentence when that defendant alleges that the prior conviction was procured in violation of the Sixth Amendment right to counsel.” People v Carpentier, 446 Mich 19, 28-29 (1994), citing Custis v United States, 511 US 485, 487 (1994) (additionally noting that the United States Supreme Court “expressly limited the availability of collateral challenges to these particular Sixth Amendment violations and refused to extend the opportunity for relief to other alleged constitutional infirmities”).

A violation of the right to counsel with respect to a prior plea-based conviction is also subject to collateral attack under Michigan law. People v Ingram, 439 Mich 288, 296-297 (1992) (citations omitted). While the state has “a compelling interest in championing the finality of criminal judgments, . . . Michigan has recognized the unique import of a defendant’s constitutional right to counsel.” Carpentier, 446 Mich at 29, citing Ingram, 439 Mich 288 (additional citation omitted). “[A]n alleged Gideon[, 372 US 335,] violation constitutes a jurisdictional defect that may be collaterally challenged by a convicted criminal defendant.” Carpentier, 446 Mich at 29-30, citing Custis, 511 US 485. “A collateral attack on a prior conviction underlying a present charge may not be made after a defendant’s plea of guilty to the present charge is accepted.” People v Roseberry, 465 Mich 713, 723 (2002) (emphasis added).

However, a prior plea-based misdemeanor conviction, obtained without benefit of counsel but for which no incarceration was imposed, may be used in a subsequent criminal prosecution for purposes of sentence augmentation. People v Reichenbach, 459 Mich 109, 120 (1998) (holding that “under both the federal and state constitutions, a defendant accused of a misdemeanor is entitled to appointed trial counsel only if ‘actually imprisoned’”). See also Nichols v United States, 511 US 738, 746-747 (1994) (holding that the use of an uncounseled misdemeanor conviction, where no prison term was imposed, to enhance the prison term for a subsequent offense was consistent with the Sixth and Fourteenth Amendments, because reliance on those types of convictions is consistent with the traditional understanding of the sentencing process, which is less exacting than the process of establishing guilt).

Part B: Procedures Specific to Misdemeanor Pleas¹