The sentencing hearing “is a critical stage at which a defendant has a right to counsel.” People v Pubrat, 451 Mich 589, 594 (1996). Defendants have a right to counsel for all felonies and for misdemeanors where incarceration is the actual penalty for conviction. Gideon v Wainwright, 372 US 335, 339-340 (1963); Scott v Illinois, 440 US 367, 373-375 (1979)1
The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., requires the trial court to “assure that each criminal defendant is advised of his or her right to counsel” and further requires that all adults, except those who have retained or waived counsel, be screened for eligibility for the appointment of counsel under the MIDCA. MCL 780.991(1)(c).2 Even if a defendant has previously waived his or her right to counsel, the trial court is under a continuing duty to inform the defendant of the right to counsel and to obtain the defendant’s valid waiver of that right at all proceedings, including sentencing. MCR 6.005(A); MCR 6.005(E).
Although the Court of Appeals has previously held that a criminal defendant does not have an absolute right to be represented at sentencing by the same attorney who represented him or her at trial, People v Davis, 277 Mich App 676, 679-680 (2008), vacated in part on other grounds 482 Mich 978 (2008),3 the MIDCA requires that “[t]he same defense counsel continuously represents and personally appears at every court appearance throughout the pendency of the case.” MCL 780.991(2)(d). “However, indigent criminal defense systems may exempt ministerial, nonsubstantive tasks, and hearings from this prescription.” Id.
A defendant’s right to counsel also extends to certain ex parte presentence conferences:
•A trial court’s conference with a probation officer is a critical stage of the proceedings at which the defendant has a right to be represented by counsel. People v Oliver, 90 Mich App 144, 149-150 (1979), rev’d on other grounds 407 Mich 857 (1979). See also People v Smith, 423 Mich 427, 458-459 (1985) (considering the standard to apply in determining whether an ex parte communication between a sentencing judge and a probation officer violates a defendant’s right to counsel and concluding “resentencing is only necessary when the sentencing judge obtains information about the defendant from the probation officer that is not included in the written presentence report”).
•A defendant has the right to be represented by counsel at a presentence conference between the trial judge and a prosecutor. People v Von Everett, 110 Mich App 393, 397 (1981).
•A defendant has the right to be represented by counsel at a presentence conference between the trial court and a police officer. People v Vroman, 148 Mich App 291, 295-296 (1985), overruled in part on other grounds by People v Wright, 431 Mich 282, 298 n 18 (1988).4
1 MCR 6.610(G)(1)(a) requires the presence of the defendant’s attorney in a district court proceeding “unless the defendant does not have one or has waived the attorney’s presence[.]”
2 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4, for discussion of the MIDCA.
3 For more information on the precedential value of an opinion with negative subsequent history, see our note.
4 For more information on the precedential value of an opinion with negative subsequent history, see our note.