Whether it is as a habitual offender notice or in scoring the sentencing guidelines, the prosecution will frequently attempt to use prior criminal convictions to increase the penalty in a new case. If you weren’t represented by an attorney and did not validly waive your right to counsel, you may be able to challenge the use of this prior conviction.
When a criminal defendant makes a collateral challenge of prior adjudications used subsequently for purposes of sentencing, the defendant “bears the initial burden of establishing that the conviction was obtained without counsel or without a proper waiver of counsel.” People v Carpentier, 446 Mich 19, 31; 521 NW2d 195 (1994). It is only after the defendant has met this burden that the burden shifts to the prosecution to establish constitutional validity. Id.
The defendant can only meet his initial burden in one of two ways. First, by presenting prima facie evidence that the conviction was obtained in violation of his right to counsel, such as with a docket entry or transcript. Second, by presenting evidence that the defendant tried to get the records but the court refused to provide them or failed to respond. Id.; People v Moore, 391 Mich 426; 216 NW2d 770 (1974).
A defendant’s waiver of the right to counsel must be unequivocal. People v Williams, 470 Mich 634, 642; 863 NW2d 597 (2004). Waiver of counsel may not be presumed from failure to request such assistance; something more than mere silence is necessary to constitute waiver. People v Parshay, 379 Mich 7, 17; 148 NW2d 869 (1967), citing Carnley v Cochran, 369 US 506; 82 S Ct 884; 8 L Ed 2d 70 (1962). “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” Carnley at 516.
So, the record must not only demonstrate that the defendant was informed of his right. The record must demonstrate that the defendant affirmatively rejected that right.
Furthermore, “if the prosecutor contends that the defendant waived counsel, the burden will be on him to show affirmative record evidence of waiver.” People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974).
If a prosecutor is trying to use your prior convictions against you, you should speak with a qualified criminal defense attorney early in the process. Feel free to call us at 616-773-2945.