
    PEOPLE v REICHENBACH
    Docket No. 192978.
    Submitted January 15, 1997, at Grand Rapids.
    Decided June 13, 1997, at 9:10 A.M. Leave to appeal sought.
    Rex Reichenbach was charged in the 8th District Court with operating a motor vehicle while under the influence of intoxicating liquor and/or operating a motor vehicle while having an unlawful blood alcohol level-third offense. The defendant claimed that one of the two prior convictions relied upon by the prosecutor could not be used for enhancement purposes because the defendant had not been represented by counsel at the time he pleaded guilty of the offense and had not been properly advised of his right to representation. The defendant had received a conditional sentence for the challenged 1989 conviction, a $500 fine or sixty days in jail, together with an assessment fee, a victim fee, and a suspended license for 182 days. He paid the fine and did not spend any time in jail. The court, Vincent C. Westra, J., relying on MCR 6.610(E)(2), agreed with the defendant and refused to bind the defendant over on the charge. The prosecution appealed, and the Kalamazoo Circuit Court, John F. Foley, J., affirmed. The prosecution appealed by leave granted.
    The Court of Appeals held:
    
    1. Although the defendant’s 1989 offense was punishable by up to ninety days of incarceration, the defendant did not actually serve a jail sentence and, therefore, was not entitled to the appointment of counsel at public expense under the state or federal constitution. Thus, his 1989 conviction was valid and may be used for enhancement purposes, regardless of the existence of the conflicting court rule, MCR 6.610(E)(2). Where, as here, in light of legal changes, a rule that when promulgated was one of practice or procedure instead becomes one of substance and conflicts with federal and state law, the court rule must be regarded as having been superseded.
    2. To the extent that MCR 6.610(E)(2) impinges on the authority of a prosecuting attorney to prosecute a legislatively prohibited offense, the enforcement of the court rule contravenes the separation of powers mandated by the constitution. The rule is invalid because it no longer relates to any practice or procedure supported by case law and supports a right to counsel that is neither constitutionally compelled nor legislatively supported.
    Reversed and remanded.
    1. Constitutional Law — Right to Counsel — Misdemeanors — Enhancement of Subsequent Offenses.
    The right to counsel under the federal and state constitutions is identical; there is no right to counsel under either constitution in a misdemeanor prosecution where no incarceration is imposed and, therefore, such a conviction may be used for enhancement purposes with respect to a subsequent offense (US Const, Am VI; Const 1963, art 1, § 20).
    2. Constitutional Law — Court Rules — Separation of Powers.
    The state Supreme Court has the constitutional authority only to promulgate rules of practice and procedure and may not promulgate rules that infringe on the power of the executive branch to enforce the criminal law or the power of the legislative branch to define the criminal law, including the penalties for various offenses; where, in light of legal changes, a rule that when promulgated was one of practice or procedure instead becomes one of substance and conflicts with federal and state law, the rule must be regarded as having been superseded (Const 1963, art 3, § 2, art 6, § 5).
    3. Constitutional Law — Court Rules — Right to Counsel — Misdemeanors — Enhancement of Subsequent Offenses.
    MCR 6.610(E)(2) contravenes the separation of powers to the extent that the rule impinges on the authority of a prosecuting attorney to prosecute the legislatively prohibited offense of operating a motor vehicle while under the influence of intoxicating liquor or operating a motor vehicle while having an unlawful blood alcohol level, third offense; the rule is invalid because it no longer relates to any practice or procedure supported by case law and establishes a right to counsel that is neither constitutionally compelled nor legislatively authorized; a defendant has no constitutional right to appointed counsel in a misdemeanor prosecution where no incarceration is imposed and a conviction of operating a motor vehicle while having an unlawful blood alcohol level that did not result in incarceration may be used for enhancement purposes with respect to a subsequent offense (US Const, Am VI; Const 1963, art 1, § 20; MCL 257.625; MSA 9.2325).
    
      Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Michael H. Dsialowski, Assistant Prosecuting Attorney, for the people.
    
      Levine & Levine (by Anastase Markou), for the defendant.
    Before: Hoekstra, P.J., and Markey and J. C. Kingsley, JJ.
    
      
       Circuit judge, sitting on the Court of Appeals by assignment.
    
   Per Curiam.

The prosecution appeals by leave granted an opinion and order of the Kalamazoo Circuit Court affirming an earlier decision of the 8th District Court that held that defendant’s 1989 plea of guilty to operating a motor vehicle while having an unlawful blood alcohol level (ubal), MCL 257.625; MSA 9.2325, had not met the requirements of MCR 6.201(E)(2), now MCR 6.610(E)(2), and, therefore, could not be used as a basis for defendant’s present charge of operating a motor vehicle while under the influence of intoxicating liquor and/or ubal, third offense (oun/UBAL-3rd), MCL 257.625; MSA 9.2325. We reverse and remand the case to the district court for reconsideration of the motion to bind over in light of our decision in this case.

In the present case, defendant was charged with oun/UBAL-3rd. At the preliminary examination, the prosecutor introduced evidence establishing that defendant had two prior convictions under MCL 257.625; MSA 9.2325 that formed the basis for defendant’s current 0UH/UBAL-3rd charge. However, defendant claimed that one of the convictions, a 1989 UBAL conviction, could not be used for enhancement purposes because he was not represented by counsel at the time he pleaded guilty to that offense and had not been properly advised of his right to representation.

In this regard, the facts are largely undisputed. At the initial arraignment on the original charge of OUIL in 1989, defendant was advised of his right to counsel and of his right to counsel at public expense if he could not afford to retain counsel. At the plea-taking proceeding, however, defendant was advised only of his right to counsel, and not specifically his right to appointed counsel at public expense if he was indigent. Defendant pleaded guilty to ubal and received a conditional sentence, a $500 fine or, in lieu of paying such fine, sixty days in jail, together with a $45 assessment fee, a $20 victim fee, and a suspended license for 182 days. Indications are that defendant paid the fine and did not spend any time in jail.

The lower courts, in upholding defendant’s position, relied on MCR 6.610(E)(2), which provides:

(2) The court shall inform the defendant of the right to the assistance of an attorney. If
(a) the offense charged is punishable by over 92 days in jail,
(b) the offense charged requires a minimum jail sentence, or
(c) the court makes a determination that it may send the defendant to jail,
the court shall inform the defendant that if the defendant is indigent he or she has the right to an appointed attorney.
A subsequent charge or sentence may not be enhanced because of this conviction unless a defendant is represented by an attorney or he or she waives the right to an appointed attorney. [Emphasis added.]

Although this rule represented a summary of existing case law at the time it was promulgated, subsequent developments have undercut the basis for the rule, and the question presented is whether the rule justifies the lower courts’ actions in this case. We hold that it does not. When the court rule at issue was promulgated, it reflected the Michigan judiciary’s understanding of the combined cases of Argersinger v Hamlin, 407 US 25, 37; 92 S Ct 2006; 32 L Ed 2d 530 (1972), Scott v Illinois, 440 US 367; 99 S Ct 1158; 59 L Ed 2d 383 (1979), and Baldasar v Illinois, 446 US 222; 100 S Ct 1585; 64 L Ed 2d 169 (1980).

In Argersinger, the United States Supreme Court held that no person could be imprisoned for any misdemeanor or felony offense unless he was represented by counsel at trial or knowingly and intelligently waived counsel. In Scott, the Court held that the Sixth and Fourteenth Amendments of the United States Constitution require only that no indigent person be sentenced to a term of imprisonment without being afforded the right to assistance of appointed counsel. Scott further held that, in the absence of a prospect of incarceration, Argersinger did not guarantee a right to appointed counsel in a misdemeanor prosecution. Finally, in Baldasar, in which no line of reasoning was adopted by a majority of the Court, the Supreme Court precluded the use of a conviction for enhancement purposes unless the defendant had been advised of and waived his right to the appointment of counsel at public expense. See People v Olah, 409 Mich 948; 298 NW2d 422 (1981). After the release of these opinions, the language of MCR 6.610 at issue in this case was adopted.

Thereafter, the United States Supreme Court overruled Baldasar and held that a conviction valid under Scott, i.e., without the benefit of counsel and lacking any advice concerning the right to appointed counsel at public expense if the defendant was indigent but which did not result in a term of imprisonment, could be used for enhancement purposes with respect to a subsequent offense. Nichols v United States, 511 US 738, 742-744; 114 S Ct 1921; 128 L Ed 2d 745 (1994).

This Court then applied Nichols in People v Richert (After Remand), 216 Mich App 186; 548 NW2d 924 (1996), by allowing use of a misdemeanor conviction of second-degree retail fraud obtained without the benefit of counsel to provide the predicate offense necessary to charge a subsequent act of retail fraud as one of first-degree retail fraud, a felony. This Court noted that nothing in the language of the Michigan Constitution, Const 1963, art 1, § 20, could be differentiated from the language of the Sixth Amendment regarding the right to counsel so as to justify or mandate a broader right to counsel under the Michigan Constitution than that provided under the Sixth Amendment. Id. at 193-194. Thus, this Court in Richert concluded that the two provisions should be construed identically, and held that because there is no right to counsel under the federal constitution in a misdemeanor prosecution where no incarceration is imposed, there is likewise no such right under the Michigan Constitution. Id. at 194.

Similarly, in People v Justice, 216 Mich App 633; 550 NW2d 562 (1996), this Court, after noting that all the Michigan cases addressing the appropriate use of misdemeanor convictions obtained without the benefit of counsel were based upon federal precedent and that our state’s protection in this area is based entirely upon its federal counterpart, concluded that there was no independent state basis for adhering to the rule of Baldasar and that Nichols controlled the sentencing practice in this state.

Here, defendant contends that notwithstanding Justice and Richert, which we recognize fail to cite or discuss MCR 6.610(E)(2), the court rule controls. We disagree. Our Supreme Court has the constitutional authority only to promulgate rules of practice and procedure. Const 1963, art 6, § 5. It does not have the authority to promulgate rules that infringe on the power of the executive branch to enforce the criminal law or the power of the legislative branch to define the criminal law, including the penalties for various offenses. Const 1963, art 3, § 2; see Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 121; 215 NW2d 145 (1974). To the extent that the court rule at issue impinges on the authority of a prosecuting attorney, a member of the executive branch of government, to prosecute the legislatively prohibited offense of OUIL/UBAL-3rd, we believe that enforcement of the court rule, in this context, contravenes the separation of powers.

Here, the court rule is invalid because it no longer relates to any practice or procedure supported by case law. Instead, the rule serves to establish a right to counsel that is neither constitutionally compelled nor legislatively supported. Because the only right to counsel recognized in Michigan is that provided by the constitution of either Michigan or the United States and defendant had no right to appointed counsel under either constitution at the time of his UBAL conviction for which incarceration was not imposed, Richert and Justice control and the court rule has no valid application or authority in this instance.

Although we recognize that our action here is unique, precedent exists for a decision of this kind. Previously, this Court has found a court rule promulgated by our Supreme Court invalid after a change in the law undercut the justification for the rule. In Waterford School Dist v State Bd of Ed, 98 Mich App 658, 665-666; 296 NW2d 328 (1980), this Court held that a change in the statute governing mandamus proceedings, granting the plaintiff a choice of forum as between the Court of Appeals and the circuit court where the defendant is a state officer or state agency, superseded a contrary court rule that had been promulgated at a time when the statute required such actions to be filed in the Court of Appeals.

In sum, although defendant’s offense of ubal was punishable by up to ninety days of incarceration, defendant did not actually serve a jail sentence and, therefore, was not entitled to the appointment of counsel at public expense under the state or federal constitution. Thus, defendant’s conviction is valid. Under Nichols and Richert, supra, the conviction properly may be used for enhancement purposes, regardless of the existence of the conflicting court rule. Where, as here, in light of legal changes, a rule that when promulgated was one of practice or procedure instead becomes one of substance and conflicts with federal and state law, we believe the court rule must be regarded as having been superseded. Further, we urge that MCR 6.610(E)(2) be reexamined in light of the cases discussed above and our decision here.

We reverse and remand the case to the district court for reconsideration of the motion to bind over in light of our decision in this case. We do not retain jurisdiction. 
      
       In 1989, the provisions formerly found in MCR 6.201, including the language at issue in this case, were moved to MCR 6.610. Because the language of the former rule was identical at that time to that of present MCR 6.610, this opinion will refer exclusively to the latter citation.
     
      
       Because we were unable to locate a copy of the complaint in the lower court record, we are relying on defendant’s recitation of the charge against him contained in his brief on appeal.
     
      
       Defendant does, however, through an affidavit, claim that he was indigent at that time. The prosecution disputes this assertion.
     