Required Advice of Rights and Procedures at Misdemeanor Arraignment

4.13Required Advice of Rights and Procedures at Misdemeanor Arraignment ¹

When a defendant is arraigned in district court for a misdemeanor offense over which the district court has jurisdiction, the defendant must be given certain specific information. MCR 6.610(D)(1) states:

“Whenever a defendant is arraigned on an offense over which the district court has jurisdiction, the defendant must be informed of

(a) the name of the offense;

(b) the maximum sentence permitted by law; and

(i) to the assistance of an attorney at all court proceedings, including arraignment, and to a trial;

(ii) (if [MCR 6.610(D)(2)] applies)^[²] to an appointed attorney; and

(iii) to a trial by jury, when required by law.”

This information may be given to the defendant in a writing made part of the file or by the court on the record. MCR 6.610(D)(1). See SCAO Form DC 213, Advice of Rights and Plea Information.

At a defendant’s arraignment for a misdemeanor punishable by more than 92 days’ imprisonment, the district court must ensure that the accused’s fingerprints have been taken as required by law.³ MCL 764.29; see also MCR 6.104(E)(6).⁴

If an accused first appears before the court in a county other than the one in which the offense occurred or, if arrested by warrant, in a county not listed in the arrest warrant, and the accused is not represented by counsel, the court must advise the accused of certain rights and decide whether to release the accused before trial.⁵ MCR 6.104(C).⁶

See the Michigan Judicial Institute’s checklist for misdemeanor arraignments in district court.

A.Right To Counsel

A criminal defendant’s right to the assistance of counsel is recognized in the federal and state constitutions and by statute. US Const, Am VI; Const 1963, art 1, § 20; MCL 763.1; MCL 780.981 et seq. However, there is no federal or state constitutional right to appointed counsel when a defendant is charged with a misdemeanor and no sentence of imprisonment is imposed. People v Richert (After Remand), 216 Mich App 186, 192-194 (1996). “The indigency determination shall be made and counsel appointed to provide assistance to the defendant as soon as the defendant’s liberty is subject to restriction by a magistrate or judge[; r]epresentation includes but is not limited to the arraignment on the complaint and warrant.” MIDC Standard 4.⁷

“When a person charged with having committed a crime appears before a magistrate without counsel, the person shall be advised of his or her right to have counsel appointed.” MCL 775.16. See also MCR 6.005(A). “If the person states that he or she is unable to procure counsel, the magistrate shall appoint counsel, if the person is eligible for appointed counsel under the [Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981—MCL 780.1003 ⁸].” MCL 775.16. “The selection of lawyers and the payment for their services shall not be made by the judiciary or employees reporting to the judiciary. Similarly, the selection and approval of, and payment for, other expenses necessary for providing effective assistance of defense counsel shall not be made by the judiciary or employees reporting to the judiciary.” MIDC Standard 5(A). “The court’s role shall be limited to: informing defendants of right to counsel; making a determination of indigency and entitlement to appointment; if deemed eligible for counsel, referring the defendant to the appropriate agency (absent a valid waiver). Judges are permitted and encouraged to contribute information and advice concerning the delivery of indigent criminal defense services, including their opinions regarding the competence and performance of attorneys providing such services.” MIDC Standard 5(B) “Only in rare cases may a judge encourage a specific attorney be assigned to represent a specific defendant because of unique skills and abilities that attorney possesses. In these cases, the judge’s input may be received and the system may take this input into account when making an appointment, however the system may not make the appointment solely because of a recommendation from the judge.” MIDC Standard 5 (staff comment).⁹ See also MCR 6.610(D)(1)(c), which requires the district court at a misdemeanor arraignment to advise a defendant of his or her right to the assistance of counsel and to appointed counsel under certain circumstances, and MCR 6.005(B),¹⁰ which requires the court, under certain circumstances, to determine whether a defendant is indigent and details the process for determining indigency. If the defendant requests a lawyer and claims financial inability to retain one, the court must refer the defendant to the local funding unit’s appointing authority for indigency screening. MCR 6.005(B). If there is no appointing authority, or if the defendant seeks judicial review of the appointing authority’s indigency determination, the court must make an indigency determination guided by the factors outlined in MCR 6.005(B)(1)-(6). MCR 6.005(B). “A defendant is considered to be indigent if he or she is unable, without substantial financial hardship to himself or herself or to his or her dependents, to obtain competent, qualified legal representation on his or her own. Substantial financial hardship is rebuttably presumed if the defendant receives personal public assistance, including under the food assistance program, temporary assistance for needy families, Medicaid, or disability insurance, resides in public housing, or earns an income less than 140% of the federal poverty guideline. A defendant is also rebuttably presumed to have a substantial financial hardship if he or she is currently serving a sentence in a correctional institution or is receiving residential treatment in a mental health or substance abuse facility.” MCL 780.991(3)(b). If a defendant is not fully indigent, he or she may be considered partially indigent. See MCL 780.991(3)(d). See also MCR 6.005(B), which sets forth several factors that guide the determination of indigency:

“(1) present employment, earning capacity and living expenses;

(2) outstanding debts and liabilities, secured and unsecured;

(3) whether the defendant has qualified for and is receiving any form of public assistance;

(4) availability and convertibility, without undue financial hardship to the defendant and the defendant’s dependents, of any personal or real property owned;

(5) the rebuttable presumptions of indigency listed in the MIDC’s indigency standard; and

(6) any other circumstances that would impair the ability to pay a lawyer’s fee as would ordinarily be required to retain competent counsel.” MCR 6.005(B)(1)-(6).

Note also that the MIDC must “promulgate objective standards for indigent criminal defense systems to determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e); Standard for Determining Indigency and Contribution, Judicial Review. The MIDC has set out a minimum standard for determining indigency and contribution “for those local funding units that elect to assume the responsibility of making indigency determinations and for setting the amount that a local funding unit could require a partially indigent defendant to contribute to their defense”; however, “[a] plan that leaves screening decisions to the court can be acceptable.” Standard for Determining Indigency and Contribution, Indigency Determination (a).

Because “[a]ctual indigency determinations may still be made at the arraignment in conformance with the court rule,” “[t]he language of MCR 6.005(B) . . . does not expressly conflict with the language of Standard 4, requiring the assignment of counsel as soon as the defendant is deemed eligible for [indigent criminal defense] services, that the indigency determination be made and counsel appointed as soon as the defendant’s liberty is subject to restriction, and that representation includes but is not limited to arraignment.” Oakland Co v State of Michigan, 325 Mich App 247, 270 (2018). It is possible that an on-duty arraignment attorney represent a defendant at arraignment but different counsel be appointed for future proceedings. Id.

The court may require the defendant to contribute to the cost of an attorney if the defendant is able to pay part of the cost. MCR 6.005(C).¹¹ The order of contribution permitted under MCR 6.005(C) is “an on-going obligation during the term of the appointment” to contribute to the cost of an attorney and is distinct from reimbursement for attorney fees, “which suggests an obligation arising after the term of appointment has ended[.]” People v Jose, 318 Mich App 290, 298 (2016). Although MCR 6.005(C) “‘pertains to contribution . . . [it] does not preclude trial courts from ordering subsequent reimbursement of expenses paid for court-appointed counsel.’” Jose, 318 Mich App at 298, quoting People v Nowicki, 213 Mich App 383, 386-387, n 3 (1995).

See also SCAO Form MC 222, Request for Court-Appointed Attorney and Order.

When authorized by the chief judge of the district, a district court magistrate may “[a]pprove and grant petitions for the appointment of an attorney to represent an indigent defendant accused of any misdemeanor punishable by imprisonment for not more than 1 year[.]” MCL 600.8513(2)(a).

See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4, for more information on a defendant’s right to counsel, including waiver of that right, determining indigency for purposes of appointing counsel, the MIDCA, and situations involving multiple defendants.

B.Entering a Plea at Arraignment ¹²

At arraignment, a plea to the charge must be entered after the court has informed the defendant of the charge as it is stated in the warrant or complaint:

“At the arraignment of an accused charged with a misdemeanor or an ordinance violation, the magistrate shall read to the accused the charge as stated in the warrant or complaint. The accused shall plead to the charge, and the plea shall be entered in the court’s minutes. If the accused refuses to plead, the magistrate shall order that a plea of not guilty be entered on behalf of the accused.” MCL 774.1a.

With the court’s permission, a defendant may stand mute or plead not guilty without a “formal” or “in-court” arraignment by filing a written statement signed by the defendant and any defense attorney of record. MCR 6.610(D)(4) provides:

“The court may allow a defendant to enter a plea of not guilty or to stand mute without formal arraignment by filing a written statement signed by the defendant and any defense attorney of record, reciting the general nature of the charge, the maximum possible sentence, the rights of the defendant at arraignment, and the plea to be entered. The court may require that an appropriate bond be executed and filed and appropriate and reasonable sureties posted or continued as a condition precedent to allowing the defendant to be arraigned without personally appearing before the court.”¹³

C.Pretrial Release

Except as otherwise provided by law, an individual charged with a criminal offense is entitled to bail. MCL 765.6(1); Const 1963, art 1, § 15; MCR 6.106(A). Unless an order has already entered, the court must determine the conditions of a defendant’s release at the defendant’s arraignment on the complaint and/or warrant. MCR 6.106(A). A court may not deny pretrial release to a person charged with a misdemeanor. Const 1963, art 1, § 15; MCR 6.106(B). For persons charged with misdemeanors, the court must order the release of the defendant on personal recognizance or an unsecured appearance bond, or subject to a conditional release, with or without money bail (10 percent, cash, or surety). MCR 6.106(A)(2)-(3).

See SCAO Form MC 240, Pretrial Release Order. See Chapter 3 for more information on pretrial release.

¹Note that there are some differences in the required procedures for felony arraignments. See MCR 6.104 and MCR 6.610. Procedures for felony arraignments are discussed in Section 4.17.

² MCR 6.610(D)(2) governs an indigent defendant’s right to appointed counsel when a conviction could result in imprisonment.

⁴ MCR 6.104(E)(6) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B). MCR 6.104(E)(6) references the collection of biometric data rather than fingerprints.

⁵ See Section 4.8(B)(2) and Section 4.8(C)(2) for discussion of applicable procedures when an arrest is made outside the county in which the offense allegedly occurred.

⁶ Although MCR 6.104(C) is not included in the list of court rules that are expressly applicable to misdemeanors under MCR 6.001(B), MCR 6.104(C) may be instructive when conducting an arraignment of a person arrested for a misdemeanor.

⁷The requirement that counsel be appointed for arraignment under MIDC Standard 4 does not conflict with the US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co v State of Michigan, 325 Mich App 247 (2018) (although the US Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is not constitutionally prohibited, and through the MIDCA, the Michigan Legislature has enacted a protection greater than that secured by the United States Constitution). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than those secured under the United States Constitution[.]’” Id. at 269, quoting People v Harris, 499 Mich 332, 338 (2016).

⁸ The MIDCA applies to an indigent defendant who “is being prosecuted or sentenced for a crime for which an individual may be imprisoned upon conviction, beginning with the defendant’s initial appearance in court to answer to the criminal charge.” MCL 780.983(f)(i) (defining “‘[i]ndigent criminal defense services’” for purposes of the MIDCA). The MIDCA requires the trial court to “assure that each criminal defendant is advised of his or her right to counsel.” MCL 780.991(1)(c). It further requires the indigent criminal defense system to make “[a] preliminary inquiry regarding, and . . . determin[e,] . . . the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, . . . not later than at the defendant’s first appearance in court.” MCL 780.991(3)(a). The trial court may play a role in the determination of indigency. Id. The MIDCA does not violate the separation of powers doctrine of the Michigan Constitution because “any sharing or overlapping of functions required by the [MIDCA] is sufficiently specific and limited that it does not encroach on the constitutional authority of the judiciary.” Oakland Co v State of Michigan, 325 Mich App 247, 262 (2018). “[T]he [MIDCA] contains no provision authorizing the MIDC to force the judiciary to comply with the minimum standards, nor does the [MIDCA] purport to control what happens in court.” Id. at 264. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4, for discussion of the MIDCA.

⁹See the MIDC’s Frequently Asked Questions About Standard 5 for more information.The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.