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People v. Lewis

Court of Appeals of Michigan

November 2, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
GARY PATRICK LEWIS, Defendant-Appellant.

         Wayne Circuit Court LC No. 14-006454-FH

          Before: Talbot, C.J., and Murray and Servitto, JJ.

         ON REMAND

          PER CURIAM.

         Defendant 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 People v Lewis, unpublished opinion per curiam of the Court of Appeals, issued July 21, 2016 (Docket No. 325782), pp 3, 10, vacated in part and remanded __Mich __(2017).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.

         I. FACTS AND PROCEDURE

         In our 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 at 1-2.]

         As 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.

         The 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.[1] 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.

         II. HARMLESS-ERROR REVIEW

         With regard to the procedural framework that should be applied, for preserved[2] 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 ...


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