STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED March 17, 2016 v No Oakland Circuit Court CEDRIC JAMES SIMPSON, LC No FH Defendant-Appellant. Before: M. J. KELLY, P.J., and CAVANAGH and SHAPIRO, JJ. PER CURIAM. Defendant appeals by leave granted following his guilty plea on the charge of Surveillance of an Unclothed Person (Second or Subsequent Offense), MCL j(2)(a)(ii). We affirm defendant s conviction and the order requiring him to reimburse the county for the cost of providing him court-appointed and advisory standby counsel, but remand for the ministerial task of correcting the judgment of sentence to reflect tier II, rather than tier III, registration under the Sex Offenders Registration Act (SORA), MCL et seq. Defendant looked over a bathroom stall and watched an adult woman use the restroom. On appeal, defendant argues that the trial court erred in requiring him to register as a tier III sex offender under SORA. The prosecution concedes this error and states that this matter should be remanded to the trial court for the ministerial task of correcting the Judgment of Sentence to reflect Tier II, rather than Tier III, SORA registration. We agree. Next, defendant argues that, because he represented himself during the proceedings, it was improper for the trial court to order him to reimburse the county for the costs of providing him advisory standby counsel. After review for plain error affecting substantial rights because this issue is raised for the first time on appeal, we disagree. See People v Carines, 460 Mich 750, ; 597 NW2d 130 (1999). Pursuant to MCL 769.1k(1)(b)(iv), the court may impose... [t]he expenses of providing legal assistance to the defendant. Defendant does not challenge the trial court s authority to order reimbursement of the cost of providing him legal counsel. Rather, defendant argues that he should not be required to pay for the assistance of standby counsel that he did not request and who did nothing more than observe the proceedings. -1-

2 However, at no time did defendant object to the appointment of Howard Arnkoff as his advisory standby counsel. In fact, Arnkoff attended every hearing and often assisted defendant during those hearings, raising questions and speaking on his behalf, without objection by defendant. That is, contrary to defendant s claim, Arnkoff did much more than just observe the proceedings. For example, at the January 22, 2014 pretrial, Arnkoff noted that he was assisting defendant with the filing of a praecipe for a motion, assisting defendant in scheduling a hearing on his various motions, and requesting the writ of habeas corpus from the prosecutor in that regard. At a February 26, 2014 motion hearing on defendant s several motions, Arnkoff noted that he had advised defendant as to the procedure for arguing his motions, and actually argued one of defendant s motions on his behalf. And with regard to defendant s motion to interview witnesses, defendant argued that he had a right to interview the prosecutor s witnesses and requested that Arnkoff be permitted to do so on his behalf, which Arnkoff agreed to arrange with the prosecutor. And with regard to defendant s motion to suppress his statements, Arnkoff advised the court that he had already requested from the prosecutor any video recordings of defendant s police statements or interviews. Further, on the date scheduled for the jury trial, May 12, 2014, Arnkoff advised the court that he went to see defendant in jail the day before and defendant had decided to enter a guilty plea, but Arnkoff requested a Cobbs agreement for a concurrent, rather than consecutive, sentence if defendant pleaded to the charge. And then at sentencing, on June 4, 2014, Arnkoff advised the court that he had reviewed the presentence report and found an error in that it indicated a consecutive sentence was to be rendered contrary to the Cobbs agreement. It is clear from the record that Arnkoff played an active role in defendant s representation and provided considerable legal assistance on which defendant relied upon and from which he benefited. Accordingly, we conclude that the assessment of the contested legal fee does not constitute plain error affecting defendant s substantial rights. See Carines, 460 Mich at Finally, defendant contends in his Standard 4 Brief that the trial court improperly ordered him to pay $2,725 in court-appointed and advisory attorney fees because they were not specifically set forth on the judgment of sentence when it was issued. We disagree. On October 10, 2012, the date of his arraignment, defendant was represented by Mark A. Chadwick and, on March 20, 2013, the trial court ordered defendant to pay $995 for his representation. As of March 20, 2013, attorney Madelaine Lyda was appointed to represent defendant and, on November 5, 2013, defendant was ordered to pay $785 in fees for her representation. On October 31, 2013, Arnkoff was ordered to represent defendant and, on July 24, 2014, defendant was ordered to pay $945 for his representation. Defendant s legal fees total $2,725, but he argues that he should not have to pay them because they were not specifically listed on the judgment of sentence. At sentencing, the trial court indicated that part of defendant s sentence was that he would have to reimburse the county for the cost of the attorneys who ve represented you as well as the advisor. Subsequently, the judgment of sentence states: ATTORNEY FEES TO BE DETERMINED.... ADVISOR FEES TO BE DETERMINED. Thus, these fees were assessed at the time of sentencing, and the trial court only waited for Oakland County to submit -2-

3 Arnkoff s exact fees, as the other fees had already been assessed by the time of the sentencing. Pursuant to MCL 769.1k(b)(iv), the court may impose... [t]he expenses of providing legal assistance to the defendant. The trial court did just that, and we find no error. Affirmed, but remanded for the ministerial task of correcting defendant s judgment of sentence to reflect the requirement that defendant register as a tier II sex offender, rather than as a tier III sex offender under SORA. We do not retain jurisdiction. /s/ Michael J. Kelly /s/ Mark J. Cavanagh -3-

4 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED March 17, 2016 v No Oakland Circuit Court CEDRIC JAMES SIMPSON, LC No FH Defendant-Appellant. Before: M. J. KELLY, P.J., and CAVANAGH and SHAPIRO, JJ. SHAPIRO, J. (concurring in part and dissenting in part) I agree with the majority regarding defendant s SORA 1 registration. I respectfully dissent as to the assessment of stand-by attorney fees in this case. Defendant was initially represented by appointed counsel. He pleaded guilty and was sentenced to serve 4 to 20 years consecutive to another sentence imposed in a different county in a different case. Due to errors in the original proceeding, we reversed the judgment and remanded. 2 On remand, defendant elected to represent himself, and the trial court sua sponte appointed stand-by counsel. After various proceedings, defendant again pleaded guilty and was sentenced to a term of 4 to 10 years, concurrent to his other sentence. While the trial court acted properly and prudently in appointing stand-by counsel, and while defendant may have benefited from that appointment, I do not believe that there is a basis in law to require him to reimburse the county for those services. The prosecution cites no caselaw in support of its position. Stand-by counsel does not represent the defendant. Instead stand-by counsel s role in providing assistance is often to serve the needs of the court by assuring that the defendant s lack of knowledge of courtroom procedure does not interfere with the process or result in technical error. As the United States Supreme Court held in McKaskle v Wiggins, 465 US 168, 183; 104 S Ct 944; 79 L Ed 2d 122 (1984), the role of stand-by counsel is to assist the defendant in 1 Sex Offenders Registration Act (SORA), MCL et seq. 2 People v Simpson, unpublished opinion per curiam of the Court of Appeals, issued January 31, 2012 (Docket No ).

5 overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete[,] and to ensure the defendant s compliance with basic rules of courtroom protocol and procedure. These functions are as much for the benefit of the court as they are for the defendant. Indeed, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury[,] and stand-by counsel may not make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance. Id. at 178 (emphasis in original). There are circumstances when a pro per defendant effectively turns the proceedings over to stand-by counsel. In such cases, i.e. where the trial court finds that the defendant has effectively abandoned his claim to represent himself, it would be proper to require the defendant to reimburse the county for those services. However, that was not the case here. 3 /s/ Douglas B. Shapiro 3 While not legally relevant to the question before us, it is worth noting that defendant owes the county over $2,000 for the services of his previous attorneys despite the fact that due to trial court and attorney error, those services resulted in nothing more than the case returning to its starting point.