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Docket Number

Docket No. 111217.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Tony D. Tague, Prosecuting Attorney, and Kevin A. Lynch, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Anne Yantus), for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Case Summary: People v. Young, Michigan Court of Appeals, Docket No. 111217 (Decided Sept. 25, 1989)

Factual and Procedural Background

Defendant ultimately pled guilty to a probation violation and was sentenced to five to ten years imprisonment. The underlying procedural history included an original guilty plea on November 20, 1986 to breaking and entering a building with intent to commit a felony (MCL 750.110; MSA 28.305). A sentence imposed January 8, 1987 (three to ten years) was vacated when defendant was permitted to withdraw that plea because of a misunderstanding concerning the prosecution's sentencing recommendation. In February 1987 the defendant again pled guilty to the breaking and entering charge and received three years' probation, with the first year to be served in county jail.

On March 24, 1988, defendant pled guilty to violating probation; the asserted violation was commission of a subsequent felony, larceny in a building — specifically, the theft of two shirts and two pairs of shoes from a retail store. On appeal, defendant challenged the probation-violation proceedings and the resulting sentence.

Legal Issues Presented

Whether defendant was denied his Sixth Amendment right to counsel because his court-appointed attorney previously had been involved as a prosecutor in defendant's original breaking-and-entering matter (i.e., whether an actual conflict of interest existed).
Whether defendant was denied due process through ineffective assistance of counsel arising from that prior prosecutorial involvement.
Whether the sentencing guidelines should apply to the probation-violation proceeding such that defendant should be resentenced under the guidelines for the larceny offense that formed the basis of the violation.

Arguments of the Parties

Appellant's (Defendant's) Arguments

Defendant asserted that his Sixth Amendment right to counsel was violated because his court-appointed attorney was a former prosecutor who had been involved in prosecuting defendant's original breaking-and-entering charge, creating an actual conflict of interest that tainted the probation-violation proceedings.
Defendant argued that this prior involvement also denied him his due process right to the effective assistance of counsel.
Defendant contended that his sentence for probation violation exceeded what he would have received under the sentencing guidelines if he had been sentenced solely on the underlying larceny offense, and therefore he should be resentenced under the guidelines.

People's (Prosecution's) Arguments

The opinion does not contain a detailed account of the people's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cuyler v. Sullivan, 446 U.S. 335 (1980)	Where a defendant does not object to a potential conflict, the defendant must establish that an actual conflict of interest adversely affected counsel's performance.	The court applied this standard to conclude that, because defendant did not object at the time and did not establish that an actual conflict adversely affected counsel's performance, there was no Sixth Amendment violation.
People v. Rhinehart, 149 Mich. App. 172, 385 N.W.2d 640 (1986)	State appellate authority cited alongside Cuyler for the standard concerning conflicts and related review.	Used as supporting Michigan authority for the requirement that an unobjected-to potential conflict requires proof of actual adverse effect to establish a Sixth Amendment violation.
People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976)	Principles governing claims of ineffective assistance of counsel and the need to show prejudice.	The court relied on this authority to explain that defendant's failure to allege prejudice foreclosed a finding of ineffective assistance of counsel.
People v. Dalessandro, 165 Mich. App. 569, 419 N.W.2d 609 (1988), lv den. 430 Mich. 880 (1988)	Application of ineffective assistance/prejudice principles in Michigan appellate decisions.	Referenced to support the court's conclusion that the absence of an allegation or showing of prejudice defeats an ineffective-assistance claim.
People v. Reeves, 143 Mich. App. 105, 371 N.W.2d 488 (1985)	Holding that the Michigan sentencing guidelines do not apply to probation violations.	The court relied on Reeves to decline defendant's request to apply the sentencing guidelines to the probation-violation sentence and declined to reconsider that prior ruling.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct steps corresponding to the issues raised.

Conflict-of-interest inquiry under professional conduct rules:
The court identified the Michigan Code of Professional Conduct prohibition (MRPC 1.11(a)) that bars a former government attorney from becoming involved in matters in which the lawyer "participated personally and substantially as a public officer." The court then examined the record to determine the extent of the attorney's prior participation: assistance in processing defendant's original plea and an appearance at the January 8, 1987, sentencing hearing. The court noted from the record that at that sentencing hearing the prosecutor (Mr. Tague) made no comments when the court asked for prosecution comments. Based on that limited participation, the court concluded the attorney's prior involvement did not constitute "substantial participation" under MRPC 1.11(a).
Sixth Amendment and conflict-of-interest analysis:
Applying the federal standard from Cuyler v. Sullivan and Michigan authority, the court explained that a defendant who does not object to a potential conflict at trial must demonstrate that an actual conflict of interest adversely affected counsel's performance. Here, the court emphasized that defendant did not object at the probation-violation proceedings and, moreover, affirmatively told the court he was satisfied with his counsel despite the attorney's prior prosecutorial role. Because defendant neither objected nor established any adverse effect on performance, the court found no Sixth Amendment violation.
Ineffective assistance of counsel / due process claim:
The court treated the ineffective-assistance claim under established Michigan law, noting that a failure to allege or show prejudice defeats such a claim. Citing People v. Garcia and People v. Dalessandro, the court held that defendant's failure to allege prejudice on appeal foreclosed a finding of ineffective assistance of counsel.
Sentencing-guidelines contention:
Regarding defendant's argument that his probation-violation sentence exceeded what the sentencing guidelines would have produced for the larceny offense and thus required resentencing, the court explained that Michigan precedent (People v. Reeves) had held that the sentencing guidelines do not apply to probation violations. The court declined defendant's invitation to revisit or reconsider that holding and therefore rejected the resentencing claim.

Holding and Implications

Holding: The judgment of the trial court was AFFIRMED.

Implications:

The direct consequence is that defendant's conviction for probation violation and the sentence of five to ten years' imprisonment were upheld.
The court found no substantial prior prosecutorial participation by the defense attorney that would trigger MRPC 1.11(a) concerns, and it found no Sixth Amendment violation because the defendant neither objected nor demonstrated that an actual conflict adversely affected counsel's performance.
The court concluded that the defendant's claim of ineffective assistance of counsel was foreclosed by his failure to allege prejudice.
The court reaffirmed existing precedent that the sentencing guidelines do not apply to probation-violation sentencing and declined to establish a contrary rule; thus, no change to that aspect of sentencing law was made by this decision.
No broader or new precedent beyond the clarifications and applications of the cited authorities is announced; the decision resolves the appeal by affirming the trial court's judgment.

This summary is limited to and derived exclusively from the information contained in the provided opinion.

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PEOPLE v YOUNG

PER CURIAM.

Defendant pled guilty to probation violation and was sentenced to five to ten years imprisonment. We affirm.

On November 20, 1986, defendant pled guilty to the underlying offense in this case, breaking and entering a building with intent to commit a felony, MCL 750.110; MSA 28.305. Although defendant was sentenced on January 8, 1987, to a term of three to ten years imprisonment, this sentence was vacated when defendant was later permitted to withdraw his plea. Apparently, there was a misunderstanding concerning the prosecution's recommendation of sentence. In February of 1987, defendant again pled guilty to the breaking and entering charge but then received only three years probation, with the first year to be served in county jail. However, on March 24, 1988, defendant pled guilty to the instant offense of probation violation. The substance of the probation violation was defendant's commission of another felony, larceny in a building.

On appeal, defendant argues that he was denied his Sixth Amendment right to counsel at the probation violation proceedings, as well as his due process right to effective assistance of counsel, because his court-appointed attorney was a former prosecutor who had been involved in the prosecution of defendant's original breaking and entering offense. Defendant maintains that an actual conflict of interest was thereby created which tainted the probation violation proceedings. We disagree.

The Michigan Code of Professional Conduct provides that an attorney moving from government employment to private practice is prohibited from becoming involved in those matters "in which the lawyer participated personally and substantially as a public officer." MRPC 1.11(a). In the instant case, the prior involvement of defendant's attorney consisted of helping to process the taking of defendant's original plea and appearing at the subsequent January 8, 1987, sentencing hearing. The extent of this latter involvement was as follows:

The Court: Any comments on behalf of the prosecution?

Mr. Tague: No, Your Honor.

We do not consider that this constituted substantial participation under MRPC 1.11(a).

Moreover, we consider that defendant failed to establish that this prior involvement resulted in a violation of his Sixth Amendment right to counsel or a denial of his due process right to the effective assistance of counsel. Specifically, we note that defendant does not assert, and the record fails to disclose, that defendant was prejudiced by his attorney's prior role as a prosecutor. This precludes a finding of a Sixth Amendment violation because a defendant who does not object to a potential conflict at trial "must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v Sullivan, 446 U.S. 335, 350; 100 S Ct 1708; 64 L Ed 2d 333 (1980); People v Rhinehart, 149 Mich. App. 172, 174-175; 385 N.W.2d 640 (1986). In the instant case, defendant not only failed to object, but specifically stated to the court that he was satisfied with his counsel despite his prior role as prosecutor. Defendant's failure to allege prejudice on appeal also forecloses a finding of ineffective assistance of counsel. See People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976); People v Dalessandro, 165 Mich. App. 569, 574; 419 N.W.2d 609 (1988), lv den 430 Mich. 880 (1988).

Defendant also argues that he should be resentenced because his sentence for probation violation exceeds what he would have received under the sentencing guidelines had he been sentenced only on the larceny offense which constituted the violation. Defendant notes that the substance of that offense was the theft of two shirts and two pairs of shoes from a retail store. Although defendant concedes that the sentencing guidelines have previously been held not to apply to probation violations, see People v Reeves, 143 Mich. App. 105, 107; 371 N.W.2d 488 (1985), defendant urges us to reconsider. We decline defendant's invitation.

Affirmed.

PEOPLE v. YOUNG