Circuit Court LC No. 14-006454-FH
Before: Talbot, C.J., and Murray and Servitto, JJ.
was convicted by a jury of four counts of third-degree arson,
MCL 750.74, and one count of second-degree arson, MCL
750.73(1). The trial court sentenced defendant, as a fourth
habitual offender, MCL 769.12, to 17 to 30 years'
imprisonment for each conviction. On appeal, we vacated
defendant's convictions and remanded for a new trial on
the basis that the denial of counsel at defendant's
preliminary examination amounted to a structural error
requiring automatic reversal. People v Lewis,
unpublished opinion per curiam of the Court of Appeals,
issued July 21, 2016 (Docket No. 325782), pp 3, 10, vacated
in part and remanded __Mich __(2017). However, the Michigan
Supreme Court reversed our judgment and remanded for
application of the harmless-error standard. People v
Lewis, __Mich__, __; __N.W.2d __(2017) (Docket No.
154396); slip op at 8, 11. For the reasons stated herein, we
affirm defendant's convictions, holding that any error
resulting from the denial of counsel at his preliminary
examination was harmless, but remand to the trial court for a
determination regarding whether, in light of People v
Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015), it
would have imposed a materially different sentence.
FACTS AND PROCEDURE
earlier opinion, we stated the relevant facts as follows:
At the start of defendant's preliminary examination, the
trial court asked defendant to state his full name on the
record. In response, defendant stated, "I'm not
talking. I don't have no attorney. This man disrespecting
me. You all violating my rights. I'm through with it.
I'm through with it." The trial court then stated
that it had appointed lawyers for defendant on multiple
occasions, that defendant had indicated his displeasure with
each of the lawyers that were appointed, and that defendant
had in fact grieved each of the prior counsel.
In light of this, the trial court found that defendant had
"elected that he would prefer not to have a lawyer to
represent him and we're going to proceed." In
response, defendant stated, "I never said that."
The trial court then reiterated that the preliminary
examination would proceed and that defendant's former
trial counsel, Brian Scherer, would act as stand-by counsel.
As the prosecution called Mollison Folson to testify,
defendant stated, "I'm not going to participate in
this legal bullshit." The court then warned defendant
that he would be expelled from the courtroom if he continued
his outburst. Defendant continued to interrupt the court
while using profane language, so the trial court expelled
defendant from the courtroom. After defendant was removed,
the trial court told Scherer that he was free to leave as
well. The court then continued with the preliminary
examination, and after hearing testimony from six witnesses,
the trial court held that there was sufficient probable cause
to bind defendant over for trial. [Lewis, unpub op
provided above, defendant was subsequently convicted of four
counts of third-degree arson and one count of second-degree
arson following a jury trial, and appealed as of right. Bound
by Michigan caselaw holding that the complete deprivation of
counsel at a critical stage of a criminal proceeding requires
automatic reversal, we concluded in our prior opinion that
because defendant was denied counsel at his preliminary
examination, a critical stage of the proceedings, reversal of
his convictions was required. Lewis, unpub op at 3,
10. However, the two-judge majority in that opinion, citing
the United States Supreme Court's decision in Coleman
v Alabama, 399 U.S. 1, 11; 90 S.Ct. 1999; 26 L.Ed.2d 387
(1970), expressed the belief that the deprivation of counsel
at a critical stage of a criminal proceeding should not
always require reversal, and that harmless-error review
should apply where the deprivation does not affect the entire
proceedings. Id. at 4-5.
Supreme Court agreed, relying on Coleman to reverse
our judgment and hold that a claim of error based on the
deprivation of counsel at a preliminary examination is
subject to harmless-error review. Lewis, __Mich
at__; slip op at 7-8, 11. It then directed us, on remand, to
consider "the substantive criteria or the procedural
framework that should attend" harmless-error review, and
apply that standard to the facts at issue. Id. at__;
slip op at 10-11.
regard to the procedural framework that should be applied,
for preserved non-structural constitutional errors, the
prosecution must prove that the error was harmless beyond a
reasonable doubt. People v Carines, 460 Mich. 750,
774; 597 N.W.2d 130 (1999). However, determining the
substantive criteria that should attend harmless-error review
under these circumstances - where a defendant has been denied
counsel at a preliminary examination - is more difficult. The
Supreme Court admitted that it was uncertain "about just
how a ...