Docket No. 104190.
Decided April 4, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Olga Agnello, Assistant Prosecuting Attorney, for the people.
Carolyn A. Blanchard, for defendant on appeal.
Before: MAHER, P.J., and CYNAR and GRIFFIN, JJ.
On February 24, 1984, defendant pled guilty to a charge of larceny from a person, MCL 750.357; MSA 28.589. On July 18, 1985, defendant was sentenced to three years probation with the first six months to be spent in the county jail. On January 5, 1987, a probation violation hearing was held and defendant was found guilty of violating a condition of his probation. On January 15, 1987, defendant was sentenced to six to ten years in prison. Defendant appeals as of right. We affirm.
Defendant first argues that he was deprived of his constitutional right to effective assistance of counsel at the probation violation hearing and at sentencing. Defendant maintains that defense counsel failed to adequately prepare for the probation violation hearing and was ineffective in failing to review the presentence report with defendant before sentencing.
Trial counsel is presumed to have afforded effective assistance. People v Reinhardt, 167 Mich. App. 584, 591; 423 N.W.2d 275 (1988). This presumption can only be overcome by a showing of counsel's failure to perform an essential duty, which failure was prejudicial to the defendant. The burden of proof is on defendant. Id.
In the present case, defendant did not sustain his burden of proving ineffective assistance of counsel. Based upon our review of the record, whether we follow Strickland v Washington, 446 U.S. 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Dalessandro, 165 Mich. App. 569; 419 N.W.2d 609 (1988), lv den 430 Mich. 880 (1988); or People v Garcia, 398 Mich. 250, 264-266; 247 N.W.2d 547 (1976), reh den 399 Mich. 1041 (1977), we conclude that defendant was not denied the effective assistance of counsel.
Defendant next argues that the trial court impermissibly considered at sentencing the fact that defendant had two charges of armed robbery pending against him. The trial court has wide discretion in sentencing and may consider defendant's other criminal activity that did not result in conviction if defendant has a chance to refute the information. People v Johnson, 164 Mich. App. 634, 645; 418 N.W.2d 117 (1987). Defendant maintains that he was not given an opportunity to refute the charges at the time of sentencing. We disagree. Our review of the record reveals that defendant was afforded allocution prior to the imposition of sentence but that defendant did not refute the charges of armed robbery. Thus, we find no error.
Defendant lastly argues that the trial court abused its discretion in sentencing to the extent that it should shock the conscience of this Court. We disagree. In this case, the trial court properly considered defendant's failure to abide by the court's probation orders and defendant's lack of rehabilitative potential as factors in imposing sentence. Furthermore, defendant's sentence was within the limits prescribed by statute. Thus, we find that the trial court did not abuse its discretion in sentencing to the extent that the sentence shocks the conscience of this Court. People v Coles, 417 Mich. 523, 550; 339 N.W.2d 440 (1983).
I concur in the result reached in this case, but write separately to express my opinion that the standards set forth in Strickland v Washington, 446 U.S. 688; 104 S Ct 2052; 80 L Ed 2d 674 (1984), apply to all claims of ineffective assistance of counsel brought under either the Michigan Constitution or the United States Constitution. I find persuasive this Court's reasoning in People v Dalessandro, 165 Mich. App. 569; 419 N.W.2d 609 (1988), and the concurring opinion of Judge HARRISON in People v Dalton, 155 Mich. App. 591, 601-603; 400 N.W.2d 689 (1986). People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976), which is often applied to state constitutional claims of ineffective assistance of counsel, is based solely upon federal grounds. Accordingly, I would hold that Garcia, has been superseded by Strickland.
The right of a criminal defendant to assistance of counsel is guaranteed by the Sixth Amendment of the United States Constitution and by art 1, § 20 of the Michigan Constitution. The language of these two constitutional provisions is nearly identical.
Const 1963, art 1, § 20 provides in part:
In every criminal prosecution, the accused shall have the right . . . to have the assistance of counsel for his defense.
US Const, Am VI provides in part:
In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.
In People v Bellanca, 386 Mich. 708, 713; 194 N.W.2d 863 (1972), the Michigan Supreme Court held that the state constitutional guarantee of the right to counsel is coextensive with the federal constitutional guarantee. Our Supreme Court stated:
These statutory provisions must be read in conjunction with the provisions of Const 1963, art 1, § 20 that "In every criminal prosecution, the accused shall have the right . . . to be confronted with the witnesses against him; . . . to have the assistance of counsel for his defense. . . ."
We read this last provision to accord a defendant the same assistance of counsel contemplated in the Sixth Amendment of the United States Constitution . . . . [Emphasis added.]
Although several panels of this Court have held that Strickland governs federal constitutional claims while Garcia applies to state claims, this dichotomy is not mandated by the language of the state constitution, Michigan constitutional history, or the holdings in Garcia. Contrary to the assumption made by such panels, Garcia does not rest upon separate or independent state constitutional grounds. Rather, it is based upon federal case law which has now been overturned.
The Michigan Supreme Court in Garcia addressed a generalized claim of ineffective assistance of counsel. In dealing with this issue, the Court made no distinction between federal and state constitutional rights. Instead, our Supreme Court looked to federal case law and applied the now discarded standard laid out in Beasley v United States, 491 F.2d 687 (CA 6, 1974). Beasley was overruled by the United States Supreme Court in Strickland and accordingly is no longer employed by the Sixth Circuit or other federal courts. Since the Michigan right to counsel is "the same assistance of counsel contemplated in the Sixth Amendment of the United States Constitution," Bellanca, supra, p 713, there likewise is no reason for Michigan courts to perpetuate Beasley.
The "second prong" of Garcia addressed the defendant's due process right to a fair trial. The opinion recognizes that the due process right to a fair trial may be violated by a serious mistake of counsel which prejudices the likelihood of an acquittal:
However, even where assistance of counsel satisfies the constitutional requirements, defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance of acquittal. [ 398 Mich. 266.]
"A claim that an adequate lawyer made a serious mistake does not raise the constitutional issue of right to counsel; it does not involve the concept of `effective assistance of counsel,' it should not be measured against the sham trial standard which circumscribes the constitutional right." [Emphasis added. 398 Mich. 266.]
The conclusion of Garcia makes it abundantly clear that the separate issues of ineffective assistance of counsel and the due process right of a fair trial were being addressed:
We conclude that the defendant was deprived of neither a fair trial or effective assistance of counsel. [ Id.]
Accordingly, I conclude that the second prong of Garcia is not an ineffective assistance of counsel standard but rather a fair trial, due process requirement. Thus, only in those cases raising a due process, fair trial issue need the second prong of Garcia be addressed.
I concur in the result in this case on the grounds that the defendant has not sustained his burden of demonstrating a violation of the right to counsel under the standards of Strickland v Washington.