                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 27, 2015
              Plaintiff-Appellee,

v                                                                  No. 318555
                                                                   Oakland Circuit Court
JIMMY ALDAOUD,                                                     LC No. 2012-241102-FH

              Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ.

PER CURIAM.

       Defendant appeals by right from his bench trial convictions of home invasion, first
degree, MCL 750.110a(2), and misdemeanor possession of marihuana, MCL 333.7403(2)(d).
He was sentenced to serve 36 months to 30 years in prison for home invasion and 365 days for
possession of marihuana. On appeal, defendant does not contest the factual basis of his
convictions. To the contrary, he concedes it. However, because the trial court failed to
substantially comply with the requirements of People v Anderson, 398 Mich 361; 247 NW2d 857
(1976), and MCR 6.005(D)(1) in permitting defendant to represent himself at trial, we hold there
was structural constitutional error requiring reversal. Accordingly, we vacate defendant’s
convictions and remand for a new trial.

                                I. FACTUAL BACKGROUND

        The complainant, Douglas Courter, was sleeping in his home in Ferndale when he was
awakened by the sound of his garage door opening or closing. Upon investigating, Courter
observed that the automatic garage door light was on. When the light went out about a minute
later, Courter surmised that the garage door had just closed. Courter immediately called 911, and
within five minutes the police arrived. While en route, Officer Palazzolo observed defendant
walking down the street about two blocks from Courter’s home. Officer Palazzolo testified that
defendant was the only person he saw and that he did not otherwise notice any vehicles driving
on the street at this time.




                                               -1-
        Office Palazzolo then informed Office Brugnoli by radio that defendant had a bag in his
possession that contained three power drills: a Black & Decker, a Kawasaki, and a Porter Cable.1
At this, Courter informed Officer Brugnoli—who was already at the scene—that he owned those
types of drills. Courter subsequently discovered the drills were missing from his garage. The
drills were then brought to the home at which point Courter identified them as his own. Courter
confirmed that no one, including defendant, had permission to take those drills from his garage
or to enter his home. During the investigation, it was determined that defendant gained entry to
the garage by using a garage door opener from an unlocked vehicle in Courter’s driveway.

            II. COMPETENCY DETERMINATION AND SELF-REPRESENTATION

        Defendant waived both his preliminary examination and arraignment. At a pretrial
hearing, defense counsel informed the court that although he had explained the home invasion
charge and potential sentence to defendant, a competency report was in order. The trial court
agreed. Defendant informed the trial court, however, that he may wish to represent himself at
trial. The trial court took the matter under advisement, noting that it may be appropriate “to
engage [defense counsel] to sit by you, by your side.”

       The parties subsequently stipulated, consistent with a competency report finding, that
defendant was incompetent to stand trial. The trial court disagreed,2 however, and a bench trial
commenced. It was then that defendant reiterated his request to represent himself:

                 THE COURT: You had mentioned something else just a second ago about
          proceeding on your own, I—another matter that is water under the bridge, so to
          speak, is whether or not there’s any plea bargain between the parties, it doesn’t
          sound like there was, I don’t know if there still is, I don’t know if the prosecutor
          intends to dismiss the case or intends to go forward with trial—

                                                    * * *

                 THE COURT: Okay. Now, today is the date set for trial; Mr. Correll,
          you’re ready, willing, and able to proceed?

                 MR. CORRELL: That is correct, your Honor.

                 THE COURT: You’ve heard your client; I invited him to speak even
          though you are his spokesman, anything you wish to say concerning that, as to
          representation?

                MR. CORRELL: Your Honor, I’ve known [defendant] through the
          pendency of this case, I’ll be glad to stand in, I’m familiar with the issues in this
          case. We have had a disagreement as to the—some of the legal issues involved,


1
    Officer Palazzolo also discovered “a small container of . . . suspected marijuana.”
2
    There were conflicting reports and opinions as to defendant’s competency to stand trial.


                                                  -2-
but I’d be glad to proceed on his behalf if the Court wishes me to do that and
[defendant] wishes me to do that.

        THE COURT: Okay. I’m just curious—I will speak to you directly since
the request is to proceed on your own, I’m—why?

       THE DEFENDANT: I hear—I’m not literally dumb, I spent 16 months day
and night constantly studying the book of Michigan Compiled Laws.

       THE COURT: No, here’s my question,—

       THE DEFENDANT: Why would I want to speak for myself, because I got
an understanding—

       THE COURT: Well, it’s—

       THE DEFENDANT: I didn’t commit the crime of home invasion.

      THE COURT: Is there a conflict between the two of you, or are you both on the
same page on how to proceed, because if you both are on the same page—
        THE DEFENDANT: He’s a good attorney, I like him, but I feel that I want
to put up my own argument because I got a better understanding of the books.

       THE COURT: And you’re ready to proceed today; even if I grant the
motion, I’m not—I can’t postpone it, they’ve already brought witnesses out here,
you understand that and that’s your desire?

       THE DEFENDANT: (Indiscernible)—

                                           * * *

        THE COURT: Yeah, that—is—I don’t want to invade attorney-client
privilege, but I am curious whether there is a breakdown between Mr. Correll,
yourself, and your client as it pertains to anything in particular, i.e., advising your
client of whether he should testify or not.

       MR. CORRELL: The only thing with respect that I indicated to [defendant]
about testifying . . . is that what he had indicated to me, and I’m not divulging
attorney-client issues, what he wishes to testify to [is] his legal understanding of
the charge, not the factual issues of the case.

       Is that correct, [defendant]?

       THE DEFENDANT: Yes, sir.

                                           * * *



                                         -3-
        THE COURT: Well, it’s your advice, and if he elects not to accept that
advice and proceeds to testify, if you are both otherwise in accord in how to
proceed, then I’m curious why he wouldn’t just have you represent him, he can
accept your advice where he chooses to accept it and not accept it, i.e., with
respect to testifying, and then he can testify.

      MR. CORRELL: And your Honor, to be clear, I indicated to [defendant]
downstairs that if he wished to testify, he could testify to anything that he wishes
to.

       THE COURT: If you elect to testify, even though it’s contrary to Mr.
Correll’s advice, you certainly would be permitted, and any reason, then, not to
have him represent you otherwise?

       THE DEFENDANT: I just—I’d rather just, you know, what he just said.

       THE COURT: Well, okay. Well, he’s either in or he’s out.

         THE DEFENDANT: Well, I mean I really like him as an attorney, but I
kind of—I kind—I’m saying I’ll—but I mean there’s no offense towards him at
all, he’s a good attorney, believe me he’s a good attorney, it’s just that he—

       THE COURT: Okay.

       THE DEFENDANT: —he’s got a million things on his desk, he can’t put
everything like I did, I put everything into it, I’m positive it’s not home invasion.
I’m not lying about it, I admit to everything they said I did, it’s considered a
misdemeanor according to the book of Michigan laws.

       THE COURT: You choose to represent yourself?

       THE DEFENDANT: Yes.

        THE COURT: Mr. Correll, I will accept your client’s request, but I will
retain your services if you would be willing to sit next to him.

       MR. CORRELL: I will.

       THE COURT: And we’ll see what, if any, services, will be needed from
you.

       MR. CORRELL: That will be fine, your Honor.

       THE COURT: Okay. All right. Very well.

                                          * * *

       THE COURT: [Defendant], you’re reminded that you’re still under oath,
required to testify truthfully and honestly, okay?
                                        -4-
                THE DEFENDANT: Yes, sir.

                THE COURT: You understand you have a constitutional right to have a
         lawyer represent you?

                THE DEFENDANT: Yes, sir.

                  THE COURT: And that right includes trial, and if you were convicted at
         trial, for sentencing and appeal, and if you could not appoint [sic] an attorney, I’d
         appoint one for you, do you understand that?

                THE DEFENDANT: Oh, yes; yes, sir.

                THE COURT: You have a constitutional right to decline to have representation,
         and—

                THE DEFENDANT: Yes, sir.

                THE COURT: —you have the absolute right; and you wish to exercise that right
         and decline constitutional representation?

                THE DEFENDANT: Yes, sir.

                THE COURT: Do you have any questions?

                THE DEFENDANT: No, sir.

        The trial court then proceeded with the bench trial, during which defendant, himself,
cross-examined witnesses and made his own opening statement and closing argument.
Defendant presented no evidence and only twice consulted his standby counsel, who—like
defendant—offered not a single objection. Defendant’s claim during closing argument was that
the felony home invasion charge was improper; instead the charge of misdemeanor breaking and
entering3 was appropriate. The trial court ultimately found defendant guilty of both home
invasion and marihuana possession, and this appeal ensued.

                                           III. ANALYSIS

        Defendant first argues that because the trial court failed to substantially comply with the
requirements of Anderson, 398 Mich 361, and MCR 6.005(D)(1), it committed structural error
requiring automatic reversal. Defendant is correct. Although defendant did not raise this issue
below, we may consider it for the first time on appeal because of its potentially outcome
determinative nature. 4 People v Grant, 445 Mich 535, 547; 520 NW2d 123 (1994) (“appellate


3
    See MCL 750.115.
4
  Our Supreme Court has suggested that ineffective waiver of counsel claims are not subject to
the usual preservation requirements. People v Vaughn, 491 Mich 642, 657; 821 NW2d 288

                                                 -5-
courts will consider claims of constitutional error for the first time on appeal when the alleged
error could have been decisive of the outcome”); People v Dennany, 445 Mich 412, 439; 519
NW2d 128 (1994) (the ineffective waiver of a defendant’s right to counsel may constitute error
requiring reversal).

        “The right of self-representation under Michigan law is secured by Const 1963, art 1, §
13 and by statute, MCL 763.1.” People v Williams, 470 Mich 634, 642-643; 683 NW2d 597
(2004). Before granting a defendant’s waiver request a court must make three findings: (1) “the
waiver request must be unequivocal”, (2) “the trial court must be satisfied that the waiver is
knowingly, intelligently, and voluntarily made”, and (3) “the trial court must be satisfied that the
defendant will not disrupt, unduly inconvenience, and burden the court or the administration of
court business.” Id., citing Anderson, 398 Mich at 367-368. Regarding the second factor, the
trial court must inform the defendant of the potential risks of self-representation “so that the
record will establish that he knows what he is doing and his choice is made with eyes open.”
Anderson, 398 Mich at 368. Additionally, MCR 6.005(D), in which these procedures are
codified, specifically requires a court to do two things before granting a defendant’s waiver
request:

       (1) advis[e] the defendant of the charge, the maximum possible prison sentence
       for the offense, any mandatory minimum sentence required by law, and the risk
       involved in self-representation, and

       (2) offer[] the defendant the opportunity to consult with a retained lawyer or, if
       the defendant is indigent, the opportunity to consult with an appointed lawyer.

        Satisfaction of these requirements does not necessitate formalistic compliance, nor does it
require a “word-for-word litany approach.” People v Adkins (After Remand), 452 Mich 702,
721, 726-727; 551 NW2d 106 (1996), overruled in part on other grounds by Williams, 470 Mich
at 641 n 7. Instead, it should banish any uncertainty regarding whether the waiver procedures
have been met. People v Russell, 471 Mich 182, 191; 684 NW2d 745 (2004), citing Adkins, 452
Mich at 721. Substantial compliance is all that is needed in this respect, and achieving it is
straightforward. Russell, 471 Mich 182 at 191, citing Adkins, 452 Mich at 721. In short, it
requires a trial court to briefly discuss with a defendant the substance of Anderson and MCR
6.005(D) and expressly find that defendant “fully understands, recognizes, and agrees to abide by
the waiver of counsel procedures.” Russell, 471 Mich at 191 (citation omitted). Absent
substantial compliance with the requirements of Anderson and MCR 6.005(D), a defendant’s
waiver is ineffective. Russell, 471 Mich at 191-192.
(2012). However, at issue in Vaughn was whether defendant preserved his right to a public trial.
Vaughn’s statements regarding ineffective waiver of counsel claims are therefore obiter dictum,
which lack the force of an adjudication. Liberty Mut Ins Co v Mich Catastrophic Claims Ass’n,
248 Mich App 35, 44; 638 NW2d 155 (2001) (“Discussion of a principle of law not essential to
the determination of a case is obiter dictum and is without the force of an adjudication”) (citation
and quotation marks omitted). Regardless, because we conclude that review of defendant’s
claim is appropriate under the circumstances of this case, we need not determine whether the
preservation requirements exist for claims of ineffective waiver of counsel.


                                                -6-
         In this case, there is no question that defendant’s request to represent himself was
unequivocal. Indeed, defendant clearly articulated his position at length both before and at the
start of trial. Accordingly, the first requirement of Anderson was met.

       Unfortunately, whether the trial court satisfied the second requirement is just as clear.
Indeed, although defendant repeatedly asserted his knowledge of the home invasion charge
because he “spent 16 months day and night constantly studying the book of Michigan Compiled
Laws,” the only advice to defendant on record concerning the nature of the charge and sentence
came from defense counsel. Not once throughout the course of these proceedings did the trial
court personally inform defendant of “the maximum possible prison sentence for the offense, any
mandatory minimum sentence required by law, and the risk involved in self-representation.”
MCR 6.005(D)(1). Accordingly, there was no substantial compliance.

        In reaching this conclusion, we are mindful that defendant had at least some idea (a very
good idea in his own estimation) regarding the charges against him and the potential sentences
he faced. Likewise we recognize that substantial compliance is meant to be “a practical, salutary
tool to be used to avoid rewarding gamesmanship as well as to avoid the creation of appellate
parachutes.” Russell, 471 Mich at 192. But absent even a perfunctory nod by the trial court to
the unambiguous requirements of the court rule, we cannot see minimal, let alone substantial
compliance. And while we are loathe to permit a criminal defendant with eyes apparently open
to cry foul about the very issue he vehemently argued to the contrary below, “the most effective
way for a trial court to safeguard against the opening of an appellate parachute is to comply with
the court rules and Anderson.” People v Dennany, 445 Mich 412, 438; 519 NW2d 128 (1994)
(opinion by GRIFFIN, J.). It is this failure that compels our decision today.

        The prosecution counters that defendant was clearly aware of the charges and potential
sentences given his execution of the arraignment waiver form, receipt of the information, his
affirmance that he understood the substance of the charges, and the filing of the habitual
information which listed defendant’s maximum sentence. However, had defendant been advised
of this information by the trial court rather than just those documents, this argument would be
more persuasive. See Adkins, 452 Mich at 731 (concluding there was substantial compliance
where at the arraignment the trial court advised defendant of the seriousness of the case, the
potential hazards inherent in self-representation, and the nature of the charges and sentences).
But the prosecution cites no authority—and we have found none—suggesting that a defendant’s
receipt of routine court documents ensures the trial court’s substantial compliance with MCR
6.005(D)(1). This is not surprising, for if the receipt of such documents alone were sufficient to
establish substantial compliance, it is difficult to conceive of any case in which substantial
compliance would not occur automatically. Accordingly, we conclude the trial court erred by
failing to substantially comply with the requirement that defendant provide a knowing,
intelligent, and voluntary waiver.

        Harmless error analysis cannot rescue this failure. The crux of the prosecution’s claim in
this regard is that any error was not structural because defendant’s standby counsel was
“exceedingly active,” thereby rendering him the functional equivalent of co-counsel or hybrid
counsel. In support, the prosecution relies on this Court’s opinion in People v Willing, 267 Mich
App 208, 224; 704 NW2d 472 (2005), as well as several cases from foreign jurisdictions. None
is helpful.

                                               -7-
        First, while the Willing Court stated that the harmless error doctrine can be applied in
certain situations involving an ineffective waiver of counsel claim, the Court expressly rejected
the argument that standby counsel equals the assistance of counsel. Id. at 227-228. As Willing
explained:

               “Given the limited role that a standby attorney plays, we think it clear that
       the assistance of standby counsel, no matter how useful to the court or the
       defendant, cannot qualify as the assistance of counsel required by the Sixth
       Amendment. The very definition of full-fledged counsel includes the proposition
       that the counselor, not the accused, bears the responsibility for the defense; by
       contrast, the key limitation on standby counsel is that such counsel not be
       responsible—and not perceived to be responsible—for the accused’s defense. . . .

                . . . The defendant preserves actual control over the case he presents to the
       jury; standby counsel cannot substantially interfere with any significant tactical
       decisions, cannot control the questioning of witnesses, and cannot speak in place
       of the defendant on any matter of importance. . . . [T]his Court holds that standby
       counsel is not ‘counsel’ within the meaning of the Sixth Amendment.” [Id.,
       quoting United States v Taylor, 933 F2d 307, 312-313 (CA 5, 1991) (second
       ellipsis in original, other citations omitted).]

        The prosecution’s reliance on foreign cases is likewise unavailing. In those cases, the
standby/hybrid counsel variously “examined and cross-examined a number of the witnesses,
participated actively in the instructions conference, raised issues and objections, and even gave a
closing argument” as in United States v Oreye, 263 F3d 669, 672-673 (CA 7, 2001); represented
the defendant for most of trial, and even “conducted the rather extensive and detailed direct
examination of [the defendant]; made objections during the government’s rebuttal case; and gave
the closing argument for the defense,” as in McClinton v United States, 817 A2d 844 (DC App,
2003); or “objected to leading during the direct examination,” “examined [the defendant] on the
stand” and “presented the closing argument,” as in Hearn v State, 3 So 3d 722, 734-745 (Miss,
2008).

        In contrast, here, although defendant consulted with standby counsel during trial,
defendant declined to permit standby counsel to conduct closing argument, and standby counsel
neither raised any objection nor questioned any witness. Perhaps most importantly, defendant
represented himself for the entire trial, not just a portion. This quite simply is not a situation of
standby counsel acting in the capacity of co-counsel or hybrid counsel.

        Ultimately, then, defendant’s lack of functional counsel coupled with his constitutionally
infirm waiver of that right means his deprivation of counsel at trial was total or complete. This is
structural error and it requires reversal, without regard to defendant’s apparent knowledge of the
charges against him and the potential sentences. See People v Duncan, 462 Mich 47, 51; 610
NW2d 551 (2000) (“If the error is structural, reversal is automatic. If the constitutional error is
not structural, it is subject to the harmless beyond a reasonable doubt test”) (citations omitted);
People v Buie (On Remand), 298 Mich App 50, 61-62; 825 NW 2d 361 (2012), quoting Willing,
267 Mich App at 224 (2005) (“It is well established that a total or complete deprivation of the
right to counsel at a critical stage of a criminal proceeding is a structural error requiring

                                                -8-
automatic reversal.”). We must therefore vacate defendant’s conviction and remand this case for
a new trial.5

                                        IV. CONCLUSION

       Because the trial court failed to substantially comply with the second requirement of
Anderson and with MCR 6.005(D)(1), we conclude there was structural error defying harmless
error analysis and requiring reversal. Accordingly, we vacate defendant’s convictions and
remand for a new trial.

       We do not retain jurisdiction.

                                                           /s/ Christopher M. Murray
                                                           /s/ Henry William Saad
                                                           /s/ Kirsten Frank Kelly




5
 Because our conclusion is dispositive, the issues raised in defendant’s Standard 4 brief as well
as the issue of whether the court failed to order sua sponte a competency review before trial are
moot.


                                               -9-
