Opinion
Docket No. 61202.
Decided April 5, 1983. Leave to appeal denied, 417 Mich. 1081.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Stuart B. Lev), for defendant on appeal.
Defendant and his codefendant were convicted in a bench trial of armed robbery, MCL 750.529; MSA 28.797. Defendant was sentenced to a term of from 5 to 15 years in prison. He appeals as of right.
I
Defendant's appeal centers on the fact that his trial counsel did not appear at sentencing. Rather, counsel for his codefendant represented both men at the sentencing proceeding. On appeal, defendant asserts that this procedure violated his constitutional guarantees of effective assistance of counsel.
The constitutional guarantees of effective assistance of counsel, US Const, Am VI; Const 1963, art 1, § 20, apply to sentencing proceedings. People v Dye, 6 Mich. App. 217; 148 N.W.2d 501 (1967); People v Johnson, 386 Mich. 305, 316-317; 192 N.W.2d 482 (1971). The presence of substitute counsel at sentencing in the stead of a defendant's trial counsel does not violate these guarantees. People v Edwards, 18 Mich. App. 526, 528-529; 171 N.W.2d 592 (1969).
Multiple representation of two defendants by one attorney can lead to conflicts of interest great enough to deprive one or both of the defendants of effective assistance of counsel. Holloway v Arkansas, 435 U.S. 475; 98 S Ct 1173; 55 L Ed 2d 426 (1978). Such a conflict of interest is never presumed or implied. Cuyler v Sullivan, 446 U.S. 335, 348; 100 S Ct 1708; 64 L Ed 2d 333 (1980). If a defendant on appeal can show, however, that an actual conflict of interest affected the adequacy of his representation, he has established a prima facie case of ineffective assistance of counsel. Cuyler, supra, 446 U.S. 349-350.
In order to help obviate potential claims of ineffective assistance of counsel, Michigan provides by court rule, GCR 1963, 785.4(4), that whenever two or more defendants are represented by the same lawyer at the same proceeding, the court shall inquire into any potential conflicts. The rule requires that joint representation not take place unless, on the record, counsel states that no conflict of interest will arise and the reasons for his belief, the defendants consent to the joint representation, and the court finds that in all probability a conflict will not arise and states its reasons for its belief. The court rule was not followed in this case. Defendant did state on the record, however, that he had no objection to the joint representation.
GCR 1963, 785.4(4) provides:
"Whenever two or more defendants who have been jointly charged or whose cases have been consolidated are represented by the same lawyer, the court shall inquire into any potential conflict which might jeopardize the right of each defendant to the fidelity of his or her lawyer. The same lawyer may not represent two or more defendants unless
"(a) the lawyer proposing to represent two or more defendants states, on the record before trial, that joint representation will in all probability not cause a conflict of interest and states the reasons for the conclusion; and
"(b) the defendants state, on the record, after the court's inquiry and the lawyer's statement, that it is their desire to proceed with the same lawyer; and
"(c) the court finds, on the record, that joint representation will in all probability not cause a conflict of interest and states the reasons for the finding.
"If an unanticipated conflict occurs during trial, a lawyer who is representing two or more defendants shall immediately inform the court; if the court agrees that a conflict has arisen, it shall appoint an additional lawyer or lawyers or afford one or more of the defendants the opportunity to retain separate counsel, as the case may require. The court may, on its own motion, inquire into any potential conflict which becomes apparent during trial, and the court may take such action as the interests of justice require."
Although GCR 1963, 785.4(4) is written in mandatory terms and, therefore, is to be followed by trial courts, a violation of its guidelines does not perfect a claim of ineffective assistance of counsel. The constitutional guarantees of effective assistance of counsel do not require courts to initiate inquiries into the propriety of multiple representation unless the court knows or reasonably should know that a particular conflict exists. Cuyler, supra, 446 U.S. 346-347. The Michigan Supreme Court, in an exercise of its supervisory power over state courts, has charted a desirable practice in its promulgation of GCR 1963, 785.4(4). Unless the Supreme Court provides otherwise, however, we decline to hold that a violation of this rule of procedure, in itself, constitutes reversible error. Accord, People v Kirk, 119 Mich. App. 599; 326 N.W.2d 145 (1982) (MacKENZIE, J.).
We have carefully scrutinized the transcript of defendant's sentencing proceeding. The record reveals effective representation of defendant by his counsel at sentencing. No actual conflict of interest appears to have existed. In view of counsel's representation, the apparent lack of an actual conflict of interest, and defendant's on-the-record consent to substitution of counsel, we affirm defendant's sentence.
II
Defendant's trial counsel was provided by the County of Wayne. Our review of the file in this case reveals that although defendant's trial counsel was not present at sentencing, he included defendant's sentencing proceeding in his sworn "description of services rendered" and charged the county for this service. Unless counsel chooses to seek a hearing in Detroit Recorder's Court on the propriety of this charge, he is herewith ordered to remit to the County of Wayne the fee he received in connection with defendant's sentencing proceeding.
Affirmed.