2.5Continuing Duty to Advise of Right to Assistance of Lawyer

“Even though a probationer charged with probation violation has waived the assistance of a lawyer, at each subsequent proceeding the court must comply with the advice and waiver procedure in MCR 6.005(E).” MCR 6.445(D). See also People v McKinnie, 197 Mich App 458, 460 (1992).

“If a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding . . . need show only that the court advised the defendant of the continuing right to a lawyer’s assistance (at public expense if the defendant is indigent) and that the defendant waived that right.” MCR 6.005(E). “Before the court begins such proceedings,

(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or

(2) if the defendant requests a lawyer and is financially unable to retain one, the court must refer the defendant to the local indigent criminal defense system’s appointing authority for the appointment of one; or

(3) if the defendant wants to retain a lawyer and has the financial ability to do so, the court must allow the defendant a reasonable opportunity to retain one.” Id.

“The court may refuse to adjourn a proceeding for the appointment of counsel or allow a defendant to retain counsel if an adjournment would significantly prejudice the prosecution, and the defendant has not been reasonably diligent in seeking counsel.” Id.

“A defendant has limited due process rights with regard to a revocation hearing.” McKinnie, 197 Mich App at 460-461. “The right to counsel, however, is fundamental and compliance with MCR 6.005(E) must be strict.” McKinnie, 197 Mich App at 461 (defendant’s judgment of sentence for probation violation vacated where the trial court did not comply with MCR 6.445 and MCR 6.005(E)).

“Because the advice and waiver procedures for subsequent proceedings are specifically referenced in MCR 6.445(D), but the advice and waiver procedures for initial criminal hearings are not referred to at all in the rest of the rule, it appears clear that the procedural safeguards set forth in MCR 6.005(D)^[1] were deliberately omitted for probation revocation cases.” People v Belanger, 227 Mich App 637, 646 (1998). “[D]ue process is satisfied in a probation revocation proceeding if a trial court advises a defendant of his right to counsel and the appointment of counsel, if he is indigent, and determines that there is a knowing and intelligent waiver of that right.” Id. at 647. “Factors to be considered when deciding whether [a] defendant ha[s] made a knowing waiver of his right to counsel are defendant’s age, education, prior criminal experience, mental state, financial condition, and the various factors, pressures or inducements which led him to admit the allegations against him without the assistance of counsel.” People v Kitley, 59 Mich App 71, 76 (1975).