“[A] criminal defendant’s initial appearance before a judicial officer, where he [or she] learns the charge against him [or her] and his [or her] liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel[,]” irrespective of the prosecution’s involvement in, or awareness of, the proceeding. Rothgery v Gillespie Co, 554 US 191, 194-195, 213 (2008).
MCR 6.905(A) requires that an unrepresented juvenile be advised of the right to counsel at each stage of the proceedings:
“If the juvenile is not represented by an attorney, the magistrate or court shall advise the juvenile at each stage of the criminal proceedings of the right to the assistance of an attorney. If the juvenile has waived the right to an attorney, the court at later proceedings must reaffirm that the juvenile continues to not want an attorney.”
Additionally, the Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., requires the court to advise the juvenile of the right to counsel. MCL 780.991(1)(c).1
B.Right to Appointed Counsel Under the Court Rules
MCR 6.905(B) provides:
“Unless the juvenile has a retained attorney, or has waived the right to an attorney, the magistrate or the court must refer the matter to the local indigent criminal defense system’s appointing authority for appointment of an attorney to represent the juvenile.”
C.Right to Appointed Counsel Under the Michigan Indigent Defense Commission Act
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., creating the Michigan Indigent Defense Commission (MIDC)2 and establishing a system for the appointment of defense counsel for indigent defendants, applies to juveniles who are charged with felony offenses in automatic waiver3 proceedings. MCL 780.983(a)(ii)(D).
The MIDCA authorizes the MIDC to set out minimum standards for attorneys who represent indigent criminal defendants. MCL 780.989(1)(a). Although the MIDC is within the executive branch (and not the judicial branch), the MIDCA does not violate the separation of powers doctrine of the Michigan Constitution because “any sharing or overlapping of functions required by the [MIDCA] is sufficiently specific and limited that it does not encroach on the constitutional authority of the judiciary.” Oakland Co v State of Michigan, 325 Mich App 247, 262 (2018). The MIDCA “does not directly regulate trial courts or attorneys.” Id. Instead, it “regulates ‘indigent criminal defense system[s],’ statutorily defined as funding units, rather than trial courts themselves.” Id. at 262-263. In addition, it “repeatedly recognizes the Michigan Supreme Court’s constitutional authority to regulate practice and procedure and to exercise general superintending control of Michigan courts.” Id. at 263. Further, “the [MIDCA] contains no provision authorizing the MIDC to force the judiciary to comply with the minimum standards, nor does the [MIDCA] purport to control what happens in court.” Id. at 264. Accordingly, the MIDCA is not facially unconstitutional. Id. at 265.
Among other requirements, the MIDCA requires the court to advise the accused of the right to counsel and requires that the accused be screened for eligibility for appointed counsel. MCL 780.991(1)(c) provides:
“Trial courts shall assure that each criminal defendant is advised of his or her right to counsel. All adults,[4] except those appearing with retained counsel or those who have made an informed waiver of counsel, must be screened for eligibility under [the MIDCA], and counsel must be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.”
“A preliminary inquiry regarding, and the determination of, the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, . . . must be made as determined by the indigent criminal defense system[5] not later than at the defendant’s first appearance in court.” MCL 780.991(3)(a).6 The “trial court may play a role in this determination as part of any indigent criminal defense system’s compliance plan under the direction and supervision of the [Michigan Supreme Court.]” Id.7 Furthermore, nothing in the MIDCA “prevents a court from making a determination of indigency for any purpose consistent with” Const 1963, art 6. MCL 780.991(3)(a).
Counsel must be assigned as soon as the defendant has been determined as eligible for indigent criminal defense services, and counsel must be appointed “as soon as the defendant’s liberty is subject to restriction by a magistrate or judge.” MIDC Standard 4. “Representation includes but is not limited to the arraignment on the complaint and warrant.”8 Id. “All persons determined to be eligible for indigent criminal defense services shall also have appointed counsel at pre-trial proceedings, during plea negotiations and at other critical stages, whether in court or out of court.” Id. However, the defendant is not prohibited “from making an informed waiver of counsel.” Id.
For further discussion of the MIDCA, see Chapter 17.
MCR 6.905(C) provides:
“The magistrate or court may permit a juvenile to waive representation by an attorney if:
(1) an attorney is appointed to give the juvenile advice on the question of waiver;
(2) the magistrate or the court finds that the juvenile is literate and is competent to conduct a defense;
(3) the magistrate or the court advises the juvenile of the dangers and of the disadvantages of self-representation;
(4) the magistrate or the court finds on the record that the waiver is voluntarily and understandingly made; and
(5) the court appoints standby counsel to assist the juvenile at trial and at the juvenile sentencing hearing.”
If the juvenile waives representation, “the court at later proceedings must reaffirm that the juvenile continues to not want an attorney.” MCR 6.905(A).
E.Cost of Legal Representation
MCR 6.905(D) provides:
“The court may assess cost of legal representation, or part thereof, against the juvenile or against a person responsible for the support of the juvenile, or both. The order assessing cost shall not be binding on a person responsible for the support of the juvenile unless an opportunity for a hearing has been given and until a copy of the order is served on the person, personally or by first class mail, to the person’s last known address.”
1 See Chapter 17 for discussion of the MIDCA.
2 The MIDC is within the Department of Licensing and Regulatory Affairs (LARA). MCL 780.985(1); MCL 780.983(c).
3 The MIDCA applies to “[a]n individual less than 18 years of age at the time of the commission of a felony” if “[t]he prosecuting attorney authorizes the filing of a complaint and warrant for a specified juvenile violation under . . . MCL 764.1f.” MCL 780.983(a)(ii)(D).
4 As used in the MIDCA, “‘[a]dult’” includes “[a]n individual less than 18 years of age at the time of the commission of a felony” who is the subject of a traditional waiver, designated, or automatic waiver proceeding. MCL 780.983(a)(ii).
5 An indigent criminal defense system is “[t]he local unit of government that funds a trial court.” MCL 780.983(h)(i). Alternatively, “[i]f a trial court is funded by more than 1 local unit of government,” an indigent criminal defense system is “those local units of government, collectively.”MCL 780.983(h)(ii).
6 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e); Standard for Determining Indigency and Contribution, Judicial Review. The MIDC has set out a minimum standard for determining indigency and contribution “for those local funding units that elect to assume the responsibility of making indigency determinations and for setting the amount that a local funding unit could require a partially indigent defendant to contribute to their defense”; however, “[a] plan that leaves screening decisions to the court can be acceptable.” Standard for Determining Indigency and Contribution, Indigency Determination (a).
7 This statute recognizes “the authority of the judicial branch with respect to indigency determinations,” and “it is sufficiently clear from MCL 780.991(3)(a) that the judiciary has not been deprived of its constitutional authority in this area.” Oakland Co, 325 Mich App at 265. See Chapter 17 for more information on the constitutionality of the MIDCA.
8 The requirement that counsel be appointed at arraignment under MIDC Standard 4 does not conflict with the US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, 325 Mich App at 269 (although the US Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is not constitutionally prohibited). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than those secured under the United States Constitution[.]’” Id., quoting People v Harris, 499 Mich 332, 338 (2016).