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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBERT CHARLES HOFFMAN, Defendant-Appellant.

UNPUBLISHED February 6, 2007

No. 266560 Jackson Circuit Court LC No. 03-004026-FC

Before: Borrello, P.J., and Jansen and Cooper, JJ. PER CURIAM. Defendant appeals by delayed leave granted his plea-based conviction of first-degree criminal sexual conduct (CSC I), the victim being under 13 years of age, MCL 750.520b(1)(a). Defendant was sentenced to a term of 18 years, nine months to 46 years, ten months in prison. We vacate defendant's conviction and sentence for the reason that defendant was erroneously denied his right to self-representation, and remand for further proceedings. This appeal is being decided without oral argument. MCR 7.214(E). Defendant was originally charged with one count of CSC I, two counts of assault with intent to commit murder, MCL 750.83, and alternatively two counts of assault with intent to do great bodily harm less than murder, MCL 750.84. Defendant appeared for arraignment in district court, and in response to the court's inquiry, stated that he did not wish to have counsel appointed to represent him. Defendant stated that he was guilty, and that he wished to plead guilty and end the proceedings. The district court accepted defendant's waiver of his right to counsel and his right to a preliminary examination, and bound him over for trial. Defendant appeared in circuit court for arraignment. The circuit court informed defendant that he was entitled to have counsel appointed to represent him, but defendant again indicated that he wished to proceed without counsel. The prosecutor indicated that defendant had agreed to plead guilty to CSC I and to one count of assault with intent to commit murder, and to be sentenced as a third habitual offender, MCL 769.11. After hearing the plea agreement, the circuit court again inquired if defendant wished to proceed without counsel, and defendant answered in the affirmative. However, when defendant refused to provide a factual basis for his plea, the circuit court refused to accept the plea and set the matter for trial.

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Defendant appeared in circuit court for a pretrial hearing before the judge originally assigned to the case,1 and was informed that because the court had determined that defendant's wish to represent himself was "not appropriate in view of the nature of the charges," counsel had been appointed. Subsequently, defendant appeared in circuit court with counsel and agreed to plead no contest to CSC I and to be sentenced as a third habitual offender in exchange for dismissal of the remaining charges. The parties agreed that the sentencing guidelines were properly scored at 225 to 562 months. The circuit court relied on the police report as the basis for defendant's plea, accepted the plea, and sentenced defendant as a third habitual offender to 225 months (18 years, nine months) to 562 months (46 years, ten months) in prison. Defendant, by appointed counsel, moved to withdraw his plea on the ground that the circuit court violated his right to self-representation. Defendant asserted that because his right to represent himself was violated, his plea was not voluntary or intelligent. The circuit court denied defendant's motion. The circuit court distinguished a plea hearing from a trial, found that no structural error occurred, and concluded that allowing defendant to proceed without counsel in light of the seriousness of the charges he was facing "didn't make any sense." In addition, the circuit court agreed with the prosecutor that defendant should have filed an affidavit stating that he would not have entered into a plea had he not been represented by counsel. A criminal defendant's right to represent himself is implicitly guaranteed by the United States Constitution, US Const, Am VI,2 and explicitly guaranteed by the Michigan Constitution and Michigan statutory law, Const 1963, art 1,

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