                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 8, 2016
               Plaintiff-Appellee,

v                                                                  No. 328486
                                                                   Muskegon Circuit Court
MICHAEL THOMAS,                                                    LC No. 14-065197-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and MARKEY and O’BRIEN, JJ.

PER CURIAM.

       Defendant was convicted by a jury of assault and battery, MCL 750.81. The trial court
sentenced defendant to 93 days in jail, with credit for time served. Defendant appeals by right.
We affirm but remand for correction of the judgment of sentence.1

       Defendant first argues that the trial court erroneously refused defendant’s request to
waive counsel. We review a trial court’s decision to permit a defendant to represent himself for
an abuse of discretion. People v Hicks, 259 Mich App 518, 521; 675 NW2d 599 (2003). A
criminal defendant has a right to represent himself. US Const, Am VI; Const 1963, art 1, § 13;
MCL 763.1. To effectuate a valid waiver of counsel and to permit a defendant to represent
himself, certain requirements must be met:




1
  Defendant was charged with count (1) possessing a weapon as a prisoner, MCL 800.283(4) and
count (2) assault with a dangerous weapon (homemade knife or shank), MCL 750.82. He was
also charged with being a fourth-offense habitual offender, MCL 769.12. The jury found
defendant not guilty of the felonies but convicted him of the lesser-included offense of assault
and battery, a misdemeanor. Because the plain language of the habitual offender statutes
requires for the enhancement of a sentence that a person both commit a subsequent felony and be
convicted of the subsequent felony, see MCL 769.12(1), the trial court erred by checking the box
on the judgment of sentence that indicates defendant was convicted by the court of the habitual
offender charge. We therefore remand for the ministerial task of correcting the judgment of
sentence to remove reference to the habitual offender charge or to indicate that it was dismissed.


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       Upon a defendant’s initial request to proceed pro se, a court must determine that
       (1) the defendant’s request is unequivocal, (2) the defendant is asserting his right
       knowingly, intelligently, and voluntarily through a colloquy advising the
       defendant of the dangers and disadvantages of self-representation, and (3) the
       defendant’s self-representation will not disrupt, unduly inconvenience, and burden
       the court and the administration of the court’s business. [People v Russell, 471
       Mich 182, 190; 684 NW2d 745 (2004).]

“The existence of a knowing and intelligent waiver of the Sixth Amendment right to counsel
depends upon the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.” People v McElhaney, 215 Mich App 269,
274; 545 NW2d 18 (1996). “[I]t is a long-held principle that courts are to make every reasonable
presumption against the waiver of a fundamental constitutional right, including the waiver of the
right to the assistance of counsel.” Russell, 471 Mich at 188.

       In this case, on the first day of trial, defense counsel—at defendant’s request—moved to
adjourn; the trial court denied the motion. After the trial court denied the motion to adjourn,
defendant asked to represent himself. The trial court denied defendant’s request for self-
representation on the basis that allowing defendant to represent himself would unduly burden the
administration of court business.

        It appears from the record that the trial court did not consider whether defendant’s request
was unequivocal and made knowingly, intelligently, and voluntarily. This does not mean,
however, that the trial court abused its discretion in its ultimate decision to deny defendant’s
request. Defendant does not present anything to support that a trial court must make conclusions
on the three factors in any particular order or that it must consider whether the request was
unequivocal and was made knowingly, intelligently, and voluntarily at all if it first concludes that
the request would disrupt, unduly inconvenience, or burden the court. To effectuate a waiver of
counsel, the trial court must conclude that all three requirements set out in Russell were met, but
if any one of the three is not, a defendant has not effectuated a valid waiver of counsel. Russell,
471 Mich at 190-192. If the trial court properly determined that defendant’s self-representation
would have disrupted trial, there could be no valid waiver. Id.

        Moreover, in People v Hill, 282 Mich App 538, 551; 766 NW2d 17 (2009), aff’d in part,
vacated in part 485 Mich 912 (2009), the trial court denied the defendant’s request to represent
himself “without any pertinent inquiry” into whether the request was unequivocal or made
knowingly, intelligently, and voluntarily. In reviewing the case, our Supreme Court concluded
that the trial court’s decision “did not deny the defendant his constitutional right to self-
representation where the defendant’s request was not timely and granting the request at that
moment would have disrupted, unduly inconvenienced, and burdened the administration of the
court’s business” and the defendant’s constitutional right to self-representation was not violated.
People v Hill, 485 Mich 912; 773 NW2d 257 (2009).

        Defendant has not shown that the trial court abused its discretion in finding that his self-
representation would have disrupted trial. The record supports that defendant brought numerous
pretrial motions but did not ask to represent himself before the first day of trial. There is nothing
to suggest that defendant had prepared in any way to represent himself. Earlier, the trial court

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expressed its concern that defendant’s motion to adjourn was “just an attempt to stall off the
trial.” Finding that defendant’s self-representation would disrupt, unduly inconvenience, and
burden the court and the administration of the court’s business did not fall outside the range of
reasonable and principled outcomes, and, therefore, the trial court did not abuse its discretion in
denying defendant’s request. Hicks, 259 Mich App 521.

        Defendant next argues that he was deprived of his right to a fair trial when the trial court
admitted irrelevant and prejudicial expert testimony regarding gang activity. This issue has been
waived. Waiver is “the intentional relinquishment or abandonment of a known right.” People v
Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (citation and quotation marks omitted). A
defendant may waive his right to challenge expert testimony. People v Sardy, 313 Mich App
679, 719; ___ NW2d ___ (2015). In this case, defense counsel expressly approved the trial
court’s action in accepting the subject witness as an expert and specifically indicated that he
wanted the witness to testify regarding gang activities in prison. Accordingly, defendant has
waived this issue, and there is no claim of error for this Court to review. People v Carter, 462
Mich 206, 219; 612 NW2d 144 (2000).

        Finally, defendant argues that he was denied the effective assistance of counsel when his
trial counsel failed to object to the admission of the expert’s testimony. To establish the
ineffective assistance of counsel a defendant must show (1) that counsel’s representation fell
below an objective standard of reasonableness, and (2) that there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different. People v Toma,
462 Mich 281, 302-303; 613 NW2d 694 (2000). Defendant has not shown that any inadmissible
evidence was improperly admitted at trial. “Trial counsel is not required to advocate a meritless
position.” People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Defendant has not
shown that defense counsel’s performance was deficient or that he was prejudiced. Id. at 424.

        We affirm but remand for correction of the judgment of sentence. We do not retain
jurisdiction.

                                                             /s/ David H. Sawyer
                                                             /s/ Jane E. Markey
                                                             /s/ Colleen A. O'Brien




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