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Docket Number

Docket No. 59977.

Attorney(S)

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people. Balfour Peisner, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Summary of Opinion: People v. Fisher (Michigan Court of Appeals, Dec. 9, 1982)

Factual and Procedural Background

Defendant was convicted of three counts of assault with intent to commit murder (MCL 750.83; MSA 28.278), and one count each of armed robbery (MCL 750.529; MSA 28.797), assault with intent to rob and steal being armed (MCL 750.89; MSA 28.284), and second-degree criminal sexual conduct (MCL 750.520c(1)(e); MSA 28.788(3)(1)(e)). The trial judge, sitting as trier of fact, found defendant guilty but mentally ill. Defendant was sentenced to five concurrent 9-1/2 to 20-year prison terms (the opinion notes the defendant was not sentenced on the CSC conviction, which may have been an oversight). Defendant appealed his convictions by right.

On appeal the court addressed only defendant's claim that he was denied effective assistance of counsel because defense counsel, in closing argument, effectively conceded guilt by asking the court to "find him guilty but mentally ill" and expressly stating that they were not asking for a verdict of not guilty by reason of insanity.

Legal Issues Presented

Whether defense counsel's closing argument, in which counsel stated he was not asking for a verdict of not guilty by reason of insanity and suggested the court find the defendant "guilty but mentally ill," constituted the functional equivalent of a guilty plea and thereby deprived defendant of the right to effective assistance of counsel.
Whether an attorney may, without the defendant's unequivocal consent and an on-the-record inquiry consistent with Boykin, admit the client's guilt in a manner that is contrary to an earlier plea of not guilty.
Whether, when a defendant pleads not guilty but counsel seeks to concede guilt (including a concession of "guilty but mentally ill"), the proper procedure is for counsel to notify the court so the defendant may be personally questioned and the defendant's consent made part of the record.

Arguments of the Parties

Appellant's Arguments

Defense counsel's closing statement amounted to an admission of guilt (the "functional equivalent" of a guilty plea) on five of the six felony charges, undermining the defendant's earlier plea of not guilty and his right to have guilt decided by the factfinder.
There is nothing in the record showing that the defendant knowingly and voluntarily consented to this strategy or to a plea or finding of "guilty but mentally ill."

The opinion does not contain a detailed account of the prosecution's responsive arguments on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wiley v Sowders, 647 F.2d 642, 648-651 (CA 6, 1981)	The decision to plead guilty or not guilty is reserved to the accused; an attorney may not admit a client's guilt contrary to the client's plea unless the client unequivocally understands and consents; counsel may not stipulate to facts amounting to the "functional equivalent" of a guilty plea; where counsel advises admitting guilt, the client's knowing consent must appear on the record consistent with Boykin.	The court relied on Wiley to characterize defense counsel's closing remarks as the functional equivalent of a guilty plea made without the defendant's consent and held that this deprived the defendant of effective assistance of counsel and of the right to have guilt decided in an adversarial setting.
Commonwealth v Lane, 476 Pa. 258; 382 A.2d 460 (1978)	Cited as analogous authority on counsel's improper admission of a client's guilt.	Referenced as additional supporting authority for the proposition that counsel may not admit a client's guilt in contravention of the client's plea.
People v Duke, 58 App. Div. 2d 31; 395 N.Y.S.2d 200 (1977)	Cited as analogous authority on counsel conceding guilt contrary to a not-guilty plea.	Referenced as additional supporting authority for the court's conclusion regarding counsel's improper admission of guilt.
People v Carter, 41 Ill. App.3d 425; 354 N.E.2d 482 (1976)	Cited as analogous authority on counsel's concessions of guilt affecting the defendant's rights.	Referenced as additional supporting authority for the court's conclusion regarding counsel's improper admission of guilt.
People v Redmond, 50 Ill.2d 313; 278 N.E.2d 766 (1972)	Cited as analogous authority on counsel's concessions and defendant's rights.	Referenced as additional supporting authority for the court's conclusion regarding counsel's improper admission of guilt.
People v Long, 86 Mich. App. 676, 683-684; 273 N.W.2d 519 (1978)	Describes the nature of a plea or finding of "guilty but mentally ill" and concludes that in substance it is a guilty plea (the finding is essentially "guilty and mentally ill" and carries the same penal consequences).	The court applied Long to explain that a concession of "guilty but mentally ill" is, in substance, a guilty plea and therefore cannot be made on behalf of a defendant who has pled not guilty without the defendant's knowing and voluntary consent on the record.
People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976)	Sets forth the standard that defense counsel must perform at least as well as a lawyer with ordinary skill and training and must conscientiously protect the client's interests.	The court invoked Garcia to frame counsel's obligations: although counsel's overall performance was competent, counsel failed to protect the defendant's interests in closing argument by effectively conceding guilt contrary to the not-guilty plea.
Boykin, supra	Referenced as the standard for the on-the-record inquiry required to ensure a defendant's plea is voluntary and intelligent.	The court held that where counsel advises admitting guilt, the defendant's knowing consent must appear on the record in a manner consistent with Boykin.

Court's Reasoning and Analysis

The court focused on defense counsel's closing remark in which counsel stated he would not ask for a verdict of not guilty by reason of insanity, that he was not asking the defendant be set free, and that he "suggest[ed] that the court find him guilty but mentally ill on such counts that the court feels." The court regarded this statement as the functional equivalent of a guilty plea as to five of the six felony charges.

Relying principally on Wiley v Sowders, the court reiterated the principle that the decision to plead guilty rests exclusively with the defendant and that an attorney may not admit a client's guilt contrary to that client's plea of not guilty unless the defendant has unequivocally consented and that consent appears on the record. The court emphasized that a not-guilty plea preserves fundamental constitutional rights and reflects the defendant's intent to require the prosecution to prove guilt beyond a reasonable doubt; an attorney's unconsented admission of guilt undermines that adversarial process.

The court noted the defendant had pled not guilty and had testified in support of an insanity defense; there was nothing in the record indicating the defendant knowingly and voluntarily waived that position or consented to being characterized as "guilty but mentally ill." The court observed that the statutory and case-law framework (including People v Long) establishes that a finding or plea of "guilty but mentally ill" is, in substance, a guilty plea with the same penal consequences, and thus cannot be asserted by counsel as a tactical matter without the defendant's personal, on-the-record assent.

The court further explained that if a defendant who has pled not guilty wishes to admit guilt, defense counsel must notify the trial court so the defendant can be questioned personally and the record can reflect the defendant's knowing consent. Where counsel argues to the factfinder that the client is guilty but mentally ill without attempting to formalize such a plea or obtain the defendant's consent on the record, that tactic is impermissible.

Applying the standard from People v Garcia regarding counsel competence, the court concluded that although trial counsel generally performed competently, counsel's closing argument failed to protect the client's interests as embodied in the plea of not guilty, thereby denying the defendant the minimum constitutional protection of effective assistance of counsel through the end of the trial.

Holding and Implications

Holding: The court reversed the convictions and remanded for a new trial. The core ruling is emphasized as follows:

REVERSED AND REMANDED FOR A NEW TRIAL.

Implications:

The court held that an attorney's unconsented admission of a client's guilt (including an argument that the client is "guilty but mentally ill") can constitute ineffective assistance of counsel because it is the functional equivalent of a guilty plea and deprives the defendant of the right to have guilt decided adversarially by the factfinder.
Where counsel intends to concede guilt or seek acceptance of a plea or finding equivalent to a guilty plea, the defendant's knowing and voluntary consent must appear on the record in a manner consistent with Boykin; absent such consent, counsel may not, as a mere trial tactic, admit guilt on the client's behalf.
The direct effect on the parties is that the defendant is entitled to a new trial. The opinion applies existing authorities to enforce procedural safeguards regarding plea admissions and counsel conduct rather than announcing a novel legal doctrine.

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PEOPLE v FISHER

PER CURIAM.

Defendant was convicted of three counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, and one count each of armed robbery, MCL 750.529; MSA 28.797, assault with intent to rob and steal being armed, MCL 750.89; MSA 28.284, and second-degree criminal sexual conduct, MCL 750.520c(1)(e); MSA 28.788(3)(1)(e). Defendant was found guilty but mentally ill by the trial judge, sitting as trier of fact. Defendant was sentenced to five concurrent 9-1/2 to 20-year prison terms and appeals his convictions by right.

Defendant was not sentenced on the CSC conviction; this may have been an oversight.

On appeal, we only address defendant's claim that he was denied effective assistance of counsel when his attorney made the following statement in closing argument:

"We are not claiming or asking this court to return a verdict of not guilty by reason of insanity. I wouldn't have the temerity to stand here and ask for that. We're not asking that he go free. We suggest that the court find him guilty but mentally ill on such counts that the court feels."

We view this argument as the functional equivalent of a plea of guilty to five of the six felony charges against defendant.

A similar factual situation was analyzed in Wiley v Sowders, 647 F.2d 642, 648-651 (CA 6, 1981):

"The decision to plead `guilty' or `not guilty' is a decision reserved solely for the accused based on his intelligent and voluntary choice. The defendant's decision to plead guilty cannot be presumed from the plea itself in the context of an otherwise silent record. Instead, the trial court must make an on the record inquiry of the defendant to insure that the defendant's plea is voluntary and intelligent. Similarly, an attorney may not admit his client's guilt which is contrary to his client's earlier entered plea of `not guilty' unless the defendant unequivocally understands the consequences of the admission. Counsel may believe it tactically wise to stipulate to a particular element of a charge or to issues of proof. However, an attorney may not stipulate to facts which amount to the `functional equivalent' of a guilty plea.

* * *

"Counsel's argument represented the precise admission which the defendant rejected in making his earlier plea of `not guilty.' Counsel made his remarks with knowledge of petitioner's earlier `not guilty' plea, and without petitioner's consent.

"A plea of `not guilty' has at least two dimensions recognizable by this court. First, in pleading `not guilty' a defendant reserves in toto those constitutional rights fundamental to a fair trial. Included in this category of constitutional rights is the accused's right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. Second, in pleading `not guilty,' a defendant exercises his right to make a statement in open court that he intends to hold the government to strict proof beyond a reasonable doubt as to the offense charged.

"Unquestionably, the constitutional right of a criminal defendant to plead `not guilty,' or perhaps more accurately not to plead guilty, entails the obligation of his attorney to structure the trial of the case around his client's plea. We, therefore, hold that petitioner was deprived of effective assistance of counsel when his own lawyer admitted his client's guilt, without first obtaining his client's consent to this strategy. In those rare cases where counsel advises his client that the latter's guilt should be admitted, the client's knowing consent to such trial strategy must appear outside the presence of the jury on the trial record in the manner consistent with Boykin, supra.

Although statements made by attorneys in closing arguments are not evidence, nevertheless, for all practical purposes, counsel's admission of guilt on behalf of his client denied to petitioner his constitutional right to have his guilt or innocence decided by the jury. Petitioner, in pleading not guilty, was entitled to have the issue of his guilt or innocence presented to the jury as an adversarial issue. Counsel's complete concession of petitioner's guilt nullified the adversarial quality of this fundamental issue.

* * *

"A criminal defendant has a constitutional right to expect during trial that his attorney will, at all times, support him, never desert him, and will perform with reasonable competence and diligence." (Footnote and citations omitted.)

See also Commonwealth v Lane, 476 Pa. 258; 382 A.2d 460 (1978); People v Duke, 58 App. Div. 2d 31; 395 N.Y.S.2d 200 (1977); People v Carter, 41 Ill. App.3d 425; 354 N.E.2d 482 (1976); People v Redmond, 50 Ill.2d 313; 278 N.E.2d 766 (1972).

Defendant pled not guilty and testified in support of his insanity defense. Nothing in the record indicates that he later knowingly and voluntarily chose to claim he was guilty but mentally ill.

The trial judge may accept a plea of guilty but mentally ill in lieu of a plea of guilty or a plea of nolo contendere. MCL 768.36(2); MSA 28.1059(2). This Court described a plea of guilty but mentally ill in People v Long, 86 Mich. App. 676, 683-684; 273 N.W.2d 519 (1978):

"Assuming that a plea's elements are the same as those of a jury verdict or bench trial finding, it is obvious that, with regard to the required findings, a plea of guilty but mentally ill is distinguished from a plea of guilty only by the additional element of mental illness.

"Indeed, upon close inspection it appears that the label of the plea (or verdict, or finding) is somewhat of a misnomer. To a layperson, `guilty but mentally ill' may suggest that the culpability, and hence the punishment, attending the finding of `guilty' is mitigated by the finding of `mentally ill'. However, the statute explicitly provides that,

"`If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense.' MCL 768.36(3); MSA 28.1059(3).

"The statute further provides that a defendant found `guilty but mentally ill' may have continued treatment at a mental institution made a condition of parole or probation. MCL 768.36(3), (4); MSA 28.1059(3), (4). In sum, the finding of `mentally ill' can only serve to aggravate rather than mitigate the restraints on a convicted defendant's liberty. The plea, verdict, or finding would more aptly be `guilty and mentally ill'. In its substance, and in its penal consequences, a plea of guilty but mentally ill is a guilty plea." (Emphasis added.)

If a defendant who has pled not guilty wishes to admit his guilt, his attorney should bring his wish to the attention of the trial court so that defendant can be questioned personally. Defendant's plea of not guilty should not leave him with fewer safeguards than he would have had if he had tendered a guilty plea. Where no attempt has been made to offer a plea of guilty but mentally ill, to argue that one's client is guilty but mentally ill is not a permissible trial tactic.

Defense counsel must perform at least as well as a lawyer with ordinary skill and training in the criminal law and must conscientiously protect his client's interests undeflected by conflicting considerations. People v Garcia, 398 Mich. 250; 247 N.W.2d 547 (1976). As a whole, trial counsel performed competently. In his closing argument, however, he did not protect his client's interests as embodied in the plea of not guilty. The constitutional guarantee of the right to counsel at trial requires, as a minimum, that the defendant's interests be represented by counsel until the trial is over.

Reversed and remanded for a new trial.

PEOPLE v. FISHER