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defendantjurisdictionattorneyappealtrialmotionfelony
defendantjurisdictionattorneytrialmotion

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People v. Fett, 257 Mich.App. 76, 666 N.W.2d 676

Facts

Defendant was arrested for operating a vehicle under the influence of intoxicating liquor on November 10, 2000, with a blood alcohol level of 0.11. She had two prior alcohol-related convictions, which led to the prosecution notifying her that a conviction would result in a felony sentence. Defendant's attorney filed a motion to admit Ohio attorney Mark Gardner as co-counsel, which was denied by the trial court, stating it was a simple OUIL case. The trial proceeded with her local attorney, resulting in her conviction.

On November 10, 2000, defendant was arrested for operating a vehicle under the influence of intoxicating liquor (OUIL). The arresting officer administered two Data–Master breath tests at the police station; the results of both tests indicated a blood alcohol level of 0.11 grams per 210 liters of breath. Defendant was charged with OUIL or operating a vehicle with an unlawful alcohol level (UBAL), M.C.L. § 257.625(1).

Issue

Did the trial court violate the defendant's Sixth Amendment right to counsel of choice by denying her motion to admit out-of-state counsel pro hac vice?

Whether a defendant's constitutional right to counsel includes the right to retain out-of-state counsel to defend against a criminal charge in Michigan is a question of law that we review de novo.

Rule

A trial court may not arbitrarily and unreasonably refuse to grant admission pro hac vice of an otherwise qualified out-of-jurisdiction attorney, as this violates the defendant's right to counsel guaranteed by the Sixth Amendment and Michigan's Constitution.

In this case of first impression in Michigan, we hold that a trial court may not arbitrarily and unreasonably refuse to grant admission pro hac vice of an otherwise qualified out-of-jurisdiction attorney. To do so violates the defendant's right to counsel guaranteed by both the Sixth Amendment and Michigan's Constitution.

Analysis

The court found that the trial court's denial of the motion was arbitrary and unreasonable, as it was based solely on the characterization of the case as 'simple' and the assumption that local counsel was competent. The court emphasized that the defendant's right to counsel of choice must be respected, and the burden was on the trial court to justify its denial. The court concluded that the denial of the motion constituted a structural constitutional error that mandated automatic reversal.

The trial court abused its discretion by denying defendant her constitutional right to counsel of choice. The only reasons the trial court advanced for denying the motion were that the instant matter was a 'simple OUIL case' and local counsel was competent. The latter reason we find insufficient to deny a defendant's constitutional right to counsel of choice.

Conclusion

The Court of Appeals vacated the defendant's conviction and remanded the case for further proceedings, holding that the trial court's denial of her right to counsel of choice was a significant constitutional violation.

We conclude that the arbitrary and unreasonable denial of counsel of choice, as in this case, is structural constitutional error mandating automatic reversal.

Who won?

Defendant prevailed in the appeal because the court found that her constitutional right to counsel of choice was violated, which required automatic reversal of her conviction.

Defendant's motion to admit counsel of choice pro hac vice was brought well in advance of trial, and no basis appears in the record to conclude that out-of-state counsel was not otherwise qualified.

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