Opinion
Docket No. 17743.
Decided June 27, 1975.
Appeal from St. Clair, Kenneth J. Stommel, J. Submitted Division 2 March 10, 1975, at Detroit. (Docket No. 17743.) Decided June 27, 1975.
Charles Hall was convicted in district court of assault and battery. Defendant appealed to circuit court. Affirmed. Defendant appeals by leave granted. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people. Stuart M. Israel, Assistant State Appellate Defender, for defendant.
Before: V.J. BRENNAN, P.J., and J.H. GILLIS and D.F. WALSH, JJ.
Defendant, Charles Hall, was convicted of the misdemeanor of assault and battery, MCLA 750.81; MSA 28.276, after a trial before District Judge James M. Kelly sitting without a jury. Defendant was sentenced to serve five days concurrently with a sentence already imposed. Defendant appealed to the St. Clair County Circuit Court and his conviction was affirmed. Defendant now appeals to this Court upon leave granted.
Defendant first contends that his conviction must be reversed because he was at no time advised of his right to an attorney or afforded the assistance of an attorney. We agree. In Argersinger v Hamlin, 407 U.S. 25; 92 S Ct 2006; 32 L Ed 2d 530 (1972), decided June 12, 1972, the United States Supreme Court held:
"We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
"That is the view of the Supreme Court of Oregon, with which we agree. It said in Stevenson v Holzman, 254 Or. 94, 102, 458 P.2d 414, 418:
"'We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances. The denial of the assistance of counsel will preclude the imposition of a jail sentence.'" (Footnotes omitted.) 407 U.S. 25, 37-38; 92 S Ct 2006, 2012-2013; 32 L Ed 2d 530, 538-539.
See also People v Studaker, 387 Mich. 698; 199 N.W.2d 177 (1972).
While defendant's trial in the instant case occurred on January 25, 1972, prior to the decisional date of Argersinger v Hamlin, supra, he is not, because of that fact, deprived of its benefit. In Berry v Cincinnati, 414 U.S. 29; 94 S Ct 193; 38 L Ed 2d 187 (1973), a unanimous United States Supreme Court held that persons convicted prior to the decisional date of Argersinger were entitled to the benefit of the rule stated therein "if they allege and prove a bona fide, existing case or controversy sufficient to invoke the jurisdiction of a federal court". Berry v Cincinnati, supra at 30; 94 S Ct at 194; 38 L Ed 2d at 189. In the case at bar defendant has properly pursued his appellate remedies from the time of his conviction and at each step of the appellate process has raised the right to counsel argument. In the circuit court the prosecution argued that the issue of whether defendant's conviction should be reversed on this basis was moot because defendant had already served his time. The circuit court judge held, on the basis of Sibron v New York, 392 U.S. 40; 88 S Ct 1889; 20 L Ed 2d 917 (1968), that the case was not moot and that sufficient collateral consequences flowed from defendant's conviction to establish a justiciable case. We agree with this determination, although not for all the reasons stated therein, and find, therefore, that defendant is entitled to the benefit of the rule announced in Argersinger.
See People v Renno, 392 Mich. 45; 219 N.W.2d 422 (1974).
Defendant herein was convicted of the misdemeanor of assault and battery and sentenced to serve five days in jail without the aid of an attorney to assist in his defense and without ever having been advised of his right to an attorney. Under Argersinger defendant was entitled to be represented by an attorney if he so desired and the failure to inform him of his rights in this regard requires the reversal of his conviction. We are not at all persuaded by the prosecution's argument that since the sentence imposed by the trial judge was to be served concurrently with another sentence, Argersinger does not require reversal.
Defendant's next argument, that under the factual circumstances here presented he could not, as a matter of law, be convicted of assault and battery because he was legally justified in using the force he did, is without merit. Defendant's defense in this regard is a question which depends on credibility and the weight to be accorded the testimony of various witnesses. A determination of the validity of this defense properly belongs to the finder of facts.
Defendant's final contention, raised by supplemental brief, is answered by the recent decision of our Supreme Court in People v Milton, 393 Mich. 234; 224 N.W.2d 266 (1974), which decided the issue adversely to the position espoused by defendant.
Reversed and remanded.