3.7Advising Defendant of the Right to Counsel

During criminal proceedings, defendants are afforded a constitutional right to retained or appointed counsel. See US Const, Am VI; Const 1963, art 1, § 20; Coleman v Alabama, 399 US 1, 7 (1970).¹ To that end, Michigan Court Rules require courts to advise defendants of their right to counsel, and to appoint counsel for indigent defendants. MCR 6.005(A); MCR 6.104(E)(2); MCR 6.610(D). A defendant’s right to proceed in propria persona is discussed in People v Adkins (After Remand), 452 Mich 702, 720-727 (1996), overruled in part on other grounds by People v Williams (Rodney), 470 Mich 634, 641 n 7 (2004) (standard of review issue: trial court decisions regarding Sixth Amendment waivers are reviewed de novo).

A. Felony Cases

MCR 6.005 details a defendant’s right to an attorney at arraignment in felony cases. At a defendant’s arraignment on a warrant or complaint, the court must advise the defendant that he or she is entitled to the assistance of an attorney at all proceedings, and that if the defendant cannot afford an attorney’s assistance but wishes to have the assistance of a lawyer, one will be appointed at public expense. MCR 6.005(A)(1)-(2). See also MCR 6.104(E)(2)-(3), which requires the court to advise the defendant of his or her right to an attorney during the felony arraignment.

In felony cases, the court must promptly refer the defendant to the local appointing authority for the appointment of an attorney if the court finds that the defendant is financially unable to retain an attorney. MCR 6.005(D). Defendants who appear without an attorney should be encouraged by the court to be screened for indigency and possible appointment of counsel. MCR 6.005(D). A defendant who is able to contribute to the cost of an appointed attorney may be required to do so. MCR 6.005(C).²

Note: The order of contribution permitted under MCR 6.005(C) pertains to “an on-going obligation during the term of the appointment” to contribute to the cost of an attorney and is distinct from reimbursement for attorney fees, “which suggests an obligation arising after the term of appointment has ended[.]” People v Jose, 318 Mich App 290, 298 (2016). MCR 6.005(C) “‘pertains to contribution and should not be construed as authorizing subsequent reimbursement.’” Jose, 319 Mich App at 298, quoting People v Nowicki, 213 Mich App 383, 386-387, n 3 (1995). However, MCR 6.005(C) “does not preclude trial courts from ordering subsequent reimbursement of expenses paid for court-appointed counsel.” Jose, 318Mich App at 298, quoting Nowicki, 213 Mich App at 386-387, n 3.

For a detailed discussion of the defendant’s right to counsel, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4.

B.Misdemeanor Cases

In misdemeanor cases cognizable by the district court, at arraignment, the court must inform the defendant of his or her right “to the assistance of an attorney at all court proceedings, including arraignment,” and if eligible under MCR 6.610(D)(2), the right to an appointed attorney. MCR 6.610(D)(1).³ An indigent defendant has the right to appointed counsel only if (1) the offense with which the defendant is charged requires a minimum term in jail upon conviction, or (2) the court determines, should the defendant be convicted, that it might sentence the defendant to a term of incarceration, even if suspended. MCR 6.610(D)(2). The court must inform a defendant of his or her right to an attorney (appointed or retained), and the defendant must waive the right in writing or on the record before there is an effective waiver of counsel. MCR 6.610(D)(3). “If the defendant has not waived the right to counsel, the court must refer the matter to the appointing authority for the assignment of counsel.” MCR 6.610(D)(3).

For a detailed discussion of the defendant’s right to counsel, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4.