
    People v Branner,
    No. 137373;
   Leave to Appeal Denied July 7, 2009:

Court of Appeals No. 275911.

Kelly, C.J.

(dissenting). I dissent from the order denying defendant’s application for leave to appeal. The Court of Appeals concluded that the record was sufficient to establish that defendant waived his right to a jury trial. However, it never addressed that, in the brief colloquy regarding the parties’ stipulation to a trial on the paper record, the court never advised defendant of his other trial rights. Rather, the court employed a perfunctory process, concluding that defendant voluntarily waived all those rights. The dissenting Court of Appeals judge reasonably questioned whether virtually all the rights associated with a trial could properly be waived in such a manner.

I agree with the dissent that the absence of procedural safeguards in this case spawns a fundamental concern about how the justice system should operate. The issue stretches beyond defendant’s case and is jurisprudentially significant, especially if other trial courts employ the procedure used here. It is significant also given the distressed condition of criminal defense for the indigent in this state.

Therefore, I would grant leave to appeal to determine whether the procedure employed to determine defendant’s guilt was adequate and whether the trial court fulfilled its obligation to safeguard defendant’s fundamental rights.

In addition, defense counsel’s performance may have been so deficient that it constituted ineffective assistance. Counsel stipulated to allow the trial court to decide the case using only the preliminary examination record, the police report, and the toxicology report. This decision seemingly provided no defense to the charges against defendant.

At a minimum, had defense counsel chosen to proceed with a bench trial, the court would have had an opportunity to observe witnesses and evaluate their credibility. Given that failure, it is premature to assume that there is no probability of a different result had defendant received a full trial.

Therefore, I dissent from the denial order and would grant defendant’s application for leave to appeal.

Cavanagh, J. I join the statement of Chief Justice Kelly. 
      
       See National Legal Aid & Defender’s Association, Evaluation of Trial-Level Indigent Defense Systems in Michigan, <http://www. michbar.org/publicpolicy/pdfs/ indigentdefense_report.pdf> (accessed June 23, 2009).
     