If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

October 15, 2020

v No. 346559

Macomb Circuit Court

FRANK KING, LC No. 2017-000895-FH

Defendant-Appellant.

Before: SWARTZLE, P.J., and JANSEN and BORRELLO, JJ.

PER CURIAM.

Defendant appeals as on leave granted1his conviction by no-contest plea of first-degree 

home invasion, MCL 750.110a(2). Defendant was sentenced as a fourth-offense habitual offender, 

MCL 769.12, to 72 to 360 months’ imprisonment. For the reasons set forth in this opinion, we 

affirm.

I. BACKGROUND

Approximately two months before his trial, defendant filed a written motion in the trial 

court requesting that his attorney’s representation be terminated and simultaneously expressing 

defendant’s desire to exercise his constitutional right to represent himself. A hearing was held on 

the motion, at which defendant explained that he had “pending motions” in the trial court asserting 

“some defenses” that defendant did not believe his attorney was going to pursue. Defense counsel 

informed the trial court that he was not aware of any pending motions or any defenses that had not 

been investigated, that he believed the matter was ready for trial, and that he could “assert any 

 

1 This Court denied defendant’s delayed application for leave to appeal. People v King, 

unpublished order of the Court of Appeals, entered February 20, 2019 (Docket No. 346559). The 

Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court “for 

consideration as on leave granted to address: (1) whether the defendant’s waiver of his Sixth 

Amendment right to counsel was constitutionally valid; and (2) if so, what effect, if any, the 

defendant’s subsequent no contest plea had on that waiver.” People v King, 505 Mich 851 (2019). 
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defenses the defendant wishes that are reasonable.” The trial court inquired of defendant as 

follows, after which, the hearing immediately concluded:

The Court: How do you want to proceed, [defendant], because I’m not going 

to appoint another attorney. You’ve already been through several. This matter is 

set for trial.

[Defendant]: I’ll proceed in pro per, your Honor.

The Court: All right. I’m going to keep [defense counsel] on for advisory,

as advisory counsel only.

[Defense Counsel]: Very well.

The Court: Be prepared to try your case, sir.

[Defendant]: Yes, sir. Thank you, your Honor.

After defendant’s trial began, defendant elected to enter a no-contest plea under a Cobbs2

agreement to his first-degree home invasion charge. In the taking of defendant’s plea, the trial 

court engaged in a lengthy plea colloquy with defendant:

The Court: Do you understand, [defendant], that if we did not have this plea 

resolution to your case that we would continue the jury trial, which we are doing, 

we were actually in the middle of at this point.

[Defendant]: I understand that, your Honor.

The Court: It’s my understanding, sir, that you wish to waive your right to 

have a jury trial and that you wish to plead no contest to these charges; is that true, 

sir?

[Defendant]: Yes, your Honor.

The Court: All right. Do you understand that you do have your right to have 

an attorney represent you. If you cannot afford an attorney, the Court will appoint 

an attorney to represent you.

Do you understand that, sir?

[Defendant]: Yes, your Honor, I do.

The Court: And you do have advisory counsel here with you today, [defense 

counsel], correct?

 

2 People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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[Defendant]: That’s correct, your Honor.

The Court: Have you had enough time to meet with [defense counsel] and 

to discuss this case and your decision here today to waive any further proceedings 

on your jury trial and your decision to plead no contest to the charges as charged?

[Defendant]: That’s correct, your Honor.

The trial court next discussed the maximum penalty for defendant’s first-degree home invasion 

charge and the effect of being sentenced as a fourth-offense habitual offender, and defendant 

indicated that he understood the potential penalties. The colloquy continued:

The Court: All right. And when you had the chance to meet with your 

attorney just now, did you also review or discuss the rights that are contained on 

the Advice of Rights form that I’m holding?

[Defendant]: I did, your Honor.

The Court: All right. You read or discussed those rights with your attorney, 

[defense counsel]?

[Defendant]: I did, your Honor.

The Court: Is that your signature on this form, sir?

[Defendant]: It is, your Honor.

The Court: You understood those rights?

[Defendant]: Yes, sir.

The Court: All right. Sir, two things. Your attorney is requesting that I 

accept a no contest plea due to potential civil liability arising out of this 

circumstance. Do you understand that?

[Defendant]: Excuse me.

The Court: Your attorney is requesting that I accept a no contest plea to 

these charges to avoid potential civil liability that’s arising out of this incident.

[Defendant]: Yes, your Honor.

The Court: All right. Do you understand that the Court will treat a no 

contest plea the same as if you pled guilty today for purposes of the plea, your 

conviction and sentencing? Do you understand that?

[Defendant]: Yes, your Honor, I do.
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The Court: All right. Do you also understand, sir, that your attorney has 

also requested a Cobbs evaluation, which we discussed before we started the jury 

trial, and that was that I sentence you in the bottom-third of the sentencing 

guidelines, which the sentencing guidelines were determined to be estimated at 72 

months to 240 months at the low end, all the way up to the maximum, which would 

be life in prison. And, there’s a request that I not exceed the 72 months at the time 

of sentencing and that if I’m not able to do that at the time of sentencing, that I 

allow you to withdraw this plea and set the matter for trial.

Do you understand that?

[Defendant]: I do, your Honor.

The Court: Do you also understand, sir, that your—because of your parole 

status at the time of this incident, that you could be, that sentencing in this matter, 

that your potential incarceration or sentencing in this matter would be consecutive, 

meaning after any parole violation? So you’d have to serve out your parole 

violation first before you would get any credit on this case. Do you understand that, 

sir?

[Defendant]: Yes, your Honor. Thank you. That’s good.

The Court: Okay. Do you understand, also understand that any time that 

you’re serving now because of the parole violation, that you would not be entitled 

to any jail credit?

[Defendant]: I understand that.

The Court: All right. Knowing all those things, sir, do you still wish to 

proceed with this plea?

[Defendant]: Yes. Yes, your Honor, I do.

The Court: All right. Do you understand that if I do accept your no contest 

plea today, that you will not have a trial of any kind and that this charge will become 

a conviction on your criminal history?

[Defendant]: I understand that, your Honor.

The Court: Do you also understand, sir, that if I accept your no contest plea 

today that any appeal from the conviction or the sentence would require that you 

file an application for leave to appeal to the Michigan Court of Appeals?

[Defendant]: Huh—

The Court: Hold on, [defendant], which means, [defendant], that you would 

have to ask the Court of Appeals whether or not they would hear or even consider 
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your case. You would not be entitled to an automatic appeal or an appeal as of 

right.

Do you understand that?

[Defendant]: I understand.

The Court: All right. Knowing that, sir, do you still wish to proceed with 

this plea?

[Defendant]: Yes, sir.

The Court: All right. Sir, you understand that by pleading no contest today 

that you are waiving each and every one of the rights that are contained on the 

Advice of Rights form that I’m holding up, that you signed?

[Defendant]: I do, your Honor.

The Court: Sir, that would include waiving your right to have a trial in this 

court by a judge or judge and jury. You’re waiving your right to be presumed 

innocent until proven guilty beyond a reasonable doubt. You’re waiving your right 

to present any evidence at your trial, including waiving your right to have witnesses 

come to this court to testify for you in your defense. You’re waiving your right to 

have the court order them to appear, if necessary. You’re also waiving your right 

to appear in court and to confront or question every witness that the People bring 

against you. And you’re also waiving your right to testify. You could take the 

witness stand, [defendant], and you would be your own witness or you could remain 

silent and not have your silence used against you.

Do you understand that by pleading no contest today, sir, that you are 

waiving each and every one of the rights that I just discussed with you?

[Defendant]: I understand, Judge.

The Court: All right. [Defendant], has anybody threatened you in any way, 

either today or throughout this process, to have you waive your rights and to plead 

no contest today?

[Defendant]: No, no, your Honor.

The Court: All right. [Defendant], has anybody promised you anything at 

all to have you waive your rights today and to plead no contest?

[Prosecutor]: Other than the Cobbs evaluation.

[Defendant]: Other than the Cobbs agreement?

The Court: Other than the Cobbs evaluation, sir.
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[Defendant]: No, sir.

The Court: All right. Are you, are you waiving your rights, sir, and pleading 

no contest freely and voluntarily?

[Defendant]: I am, your Honor.

The Court: It’s your own decision today, after meeting with your advisory 

counsel, to discontinue this trial, to waive your rights, and to plead no contest?

[Defendant]: It is, your Honor.

After establishing a factual basis for the underlying crime and defendant’s status as a 

fourth-offense habitual offender, the trial court accepted defendant’s no-contest plea. The trial 

court sentenced defendant as previously noted.

After this Court denied defendant’s delayed application for leave to appeal,3our Supreme 

Court remanded this matter to this Court “for consideration as on leave granted to address: (1) 

whether the defendant’s waiver of his Sixth Amendment right to counsel was constitutionally 

valid; and (2) if so, what effect, if any, the defendant’s subsequent no contest plea had on that 

waiver.” People v King, 505 Mich 851 (2019).

II. WAIVER OF COUNSEL

Defendant argues that his waiver of counsel when he asserted his right to represent himself

was ineffective because the trial court failed to substantially comply with the applicable procedural 

requirements set forth by the Michigan Supreme Court in People v Anderson, 398 Mich 361; 247 

NW2d 857 (1976), and in MCR 6.005(D). Defendant maintains that as a result, he was totally 

deprived of the right to counsel during critical stages of the proceedings and that his rights 

protected by the Sixth and Fourteenth Amendments of the United States Constitution were 

violated.

A. STANDARD OF REVIEW

A trial court’s factual findings surrounding a defendant’s waiver of the right to counsel are 

reviewed for clear error, but this Court’s review is de novo “to the extent that a ruling involves an 

interpretation of the law or the application of a constitutional standard to uncontested facts.” 

People v Russell, 471 Mich 182, 187; 684 NW2d 745 (2004).

However, defendant did not object to the trial court’s ruling permitting him to represent 

himself or otherwise challenge the validity of his waiver of counsel in the trial court. Therefore, 

this issue is unpreserved. People v Cain, 498 Mich 108, 114-115; 869 NW2d 829 (2015) 

(explaining that an issue is unpreserved for appeal if the appellant did not timely raise the issue in 

 

3 King, unpub order. 
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the trial court). Although defendant’s claim that he was completely deprived of counsel during 

critical stages of criminal proceedings constitutes a claim of structural error, Russell, 471 Mich at

194 n 29, unpreserved claims of structural error are still reviewed for plain error affecting 

substantial rights. Cain, 498 Mich at 117 n 4.

“To avoid forfeiture under the plain error rule, three requirements must be met: 1) error 

must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected 

substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third 

requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of 

the lower court proceedings.” Id. If “a defendant satisfies these three requirements, an appellate 

court must exercise its discretion in deciding whether to reverse. Reversal is warranted only when 

the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an 

error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings 

independent of the defendant’s innocence.” Id. at 763-764 (quotation marks and citation omitted; 

alteration in original).

B. ANALYSIS

The right to the assistance of counsel at all critical stages of criminal proceedings for an 

accused facing incarceration is protected by the Sixth Amendment, which is applicable to the states 

through the Fourteenth Amendment. People v Williams, 470 Mich 634, 641; 683 NW2d 597 

(2004), citing Maine v Moulton, 474 US 159, 170; 106 S Ct 477; 88 L Ed 2d 481 (1985), and

Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963); see also US Const, Ams

VI and XIV. Trial is a critical stage, Russell, 471 Mich at 188, as is a plea hearing, Iowa v Tovar, 

541 US 77, 87; 124 S Ct 1379; 158 L Ed 2d 209 (2004). The right of self-representation is also 

protected by the Sixth and Fourteenth Amendments. See Faretta v California, 422 US 806, 818-

821; 95 S Ct 2525; 45 L Ed 2d 562 (1975). Both the right to self-representation and the right to 

counsel are additionally protected by the Michigan Constitution. Const 1963, art 1, §§ 13 and 20.

Choosing self-representation necessarily entails relinquishing the right to be represented 

by counsel. Faretta, 422 US at 835. Thus, the Constitution requires a defendant to give a 

“knowing, voluntary, and intelligent” waiver of the right to counsel in order to exercise the right 

to self-representation. Tovar, 541 US at 87-88. The United States Supreme Court has “described 

a waiver of counsel as intelligent when the defendant knows what he is doing and his choice is 

made with eyes open.” Id. at 88 (quotation marks and citation omitted).

In Michigan, our Supreme Court has set forth three requirements to be satisfied before 

granting a defendant’s request to waive the assistance of counsel and exercise the right of selfrepresentation: (1) “the request must be unequivocal”; (2) “the trial court must determine whether 

defendant is asserting his right knowingly, intelligently and voluntarily,” making the defendant 

“aware of the dangers and disadvantages of self-representation, so that the record will establish 

that he knows what he is doing and his choice is made with eyes open”; and (3) “the trial judge 

[must] determine that the defendant’s acting as his own counsel will not disrupt, unduly 

inconvenience and burden the court and the administration of the court’s business.” Anderson, 

398 Mich at 367-368. The trial court also must fulfill the requirements of MCR 6.005(D). Russell, 

471 Mich at 190. MCR 6.005(D) provides that “[t]he court may not permit the defendant to make 

an initial waiver of the right to be represented by a lawyer without first” doing the following:
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(1) advising the defendant of the charge, the maximum possible prison 

sentence for the offense, any mandatory minimum sentence required by law, and 

the risk involved in self-representation, and

(2) offering the defendant the opportunity to consult with a retained lawyer 

or, if the defendant is indigent, the opportunity to consult with an appointed lawyer.

“[I]f the trial court fails to substantially comply with the requirements in Anderson and 

[MCR 6.005(D)], then the defendant has not effectively waived his Sixth Amendment right to the 

assistance of counsel.” Russell, 471 Mich at 191-192. “Substantial compliance requires that the 

court discuss the substance of both Anderson and MCR 6.005(D) in a short colloquy with the 

defendant, and make an express finding that the defendant fully understands, recognizes, and 

agrees to abide by the waiver of counsel procedures.” Id. at 191 (quotation marks and citation 

omitted).

In this case, the trial court did not address any of the requirements in Anderson or the court 

rule before permitting defendant to represent himself, instead merely telling defendant that he 

would have standby counsel and that he should be “prepared to try [his] case.” Before granting 

defendant’s request to represent himself, the trial court did not discuss the dangers of selfrepresentation or the potential penalties, and the trial court did not make any findings regarding 

whether defendant made an understanding and voluntary waiver of counsel. MCR 6.005(D); 

Anderson, 398 Mich at 367-368; Russell, 471 Mich at 191. The record therefore indicates that the 

trial court failed to comply with the substance of Anderson and the court rule, contrary to the clear 

instructions of our Supreme Court for effectuating a valid waiver of the right to counsel.

4

 Russell, 

471 Mich at 191-192. This was error, and it was plain. Carines, 460 Mich at 763. With respect 

to the prejudice prong of the plain error standard, our Supreme Court has indicated that an 

unpreserved claim of plain structural error is sufficient in itself to satisfy the third Carines prong. 

People v Vaughn, 491 Mich 642, 666; 821 NW2d 288 (2012).

Nevertheless, even if the first three prongs of the plain error standard have been established, 

we still must exercise our discretion to determine whether reversal is warranted under the fourth 

Carines prong. Carines, 460 Mich at 763-764. Defendant does not claim that he is actually 

innocent, so the question becomes whether the trial court’s plain error in this case “seriously 

affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the 

defendant’s innocence.” Id. (quotation marks and citation omitted; alteration in original). “[T]he 

fourth Carines prong is meant to be applied on a case-specific and fact-intensive basis.” Cain, 498 

Mich at 121. Reversal is not justified under the fourth Carines prong if the “underlying purposes”

 

4 We acknowledge that defendant had been appointed counsel before he requested to represent 

himself, thus satisfying MCR 6.005(D)(2). Defendant’s request also was clearly unequivocal. 

However, the trial court failed to acknowledge on the record the applicable legal framework 

implicated when a defendant requests to exercise the right to self-representation. Most importantly, 

the trial court did not fulfill its responsibility to create a record of the other substantive 

requirements relative to demonstrating that defendant relinquished the assistance of his appointed 

counsel through a knowing, intelligent, and voluntary waiver. 
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of the right at issue have been alternatively upheld. Id. at 119. We affirm because here, the 

underlying purposes of the right were alternatively upheld during defendant’s Cobbs plea.

In this case, defendant claims he suffered a complete deprivation of the right to counsel. 

“The purpose of the constitutional guaranty of a right to counsel is to protect an accused from 

conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty 

would be nullified by a determination that an accused’s ignorant failure to claim his rights removes 

the protection of the Constitution.” Johnson v Zerbst, 304 US 458, 465; 58 S Ct 1019; 82 L Ed 

1461 (1938) (emphasis added).

In considering whether the underlying purposes of the right to counsel were protected in 

this case despite the trial court’s failure to create a record demonstrating a proper knowing and 

voluntary waiver of this right, we first observe that the record indicates that defendant made it 

evident to the trial court that he, in fact, was not ignorant of his legal and constitutional rights. Id. 

Defendant filed a written motion seeking to terminate his attorney’s representation and to instead 

represent himself. In this motion, defendant claimed that defense counsel had declined to file and 

investigate defenses and pretrial motions that defendant had expressed a desire to pursue. 

Defendant further stated in this motion that “the defendant has a Constitutional right to selfrepresentation and wishes to exercise that right (U.S. Constitution Amendment VI; Faretta v. 

California, 442 US 806: 955. Ct. 2525:)” and that “[t]he defendant does not assert the right to selfrepresentation for any frivolous purpose, neither to burden or disrupt the proceedings or business 

of the Court, but in all proceedings to observe the appropriate standards of decorum.”

Defendant cited the United States Supreme Court’s seminal case regarding the right to selfrepresentation in his motion and thus presumably was aware both of the constitutional rights at 

stake and the Faretta Court’s statement that “in most criminal prosecutions defendants could better 

defend with counsel’s guidance than by their own unskilled efforts.” Faretta, 422 US at 834.5 

Defendant’s motion also mirrored substantive language in found in Anderson, 398 Mich at 367-

368. Accordingly, despite the trial court failing to create an adequate record regarding defendant’s 

waiver, defendant nonetheless made it apparent that his assertion of the right to self-representation 

was unequivocal, that he understood the rights and risks involved in his request, that he possessed 

an understanding of the applicable legal rules and procedures involved in asserting his request, and 

that he would not unduly burden or inconvenience the court. We conclude that on this record, 

defendant demonstrated that he knew what he was doing and chose to represent himself with “his 

eyes open.” Anderson, 398 Mich at 368, 370-371 (concluding in People v Overby, the companion 

case in Anderson, that the trial court reversibly erred by denying the defendant’s request to 

represent himself where, although the trial court had not specifically warned the defendant about 

the dangers of self-representation, the defendant had expressed his requests in a “sophisticated and 

comprehensive” manner that included citation to relevant legal authority and demonstrated that he 

“knew what he was doing and made his choice with his eyes open”).

 

5 We note that defendant’s written motion appears to contain defendant’s signature and defendant 

informed the trial court during defendant’s plea hearing that he could read, write, and understand 

the English language.
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Next, our exercise of discretion under the fourth Carines prong is significantly influenced 

in this case by the fact that defendant was convicted by plea and the record reflects that defense 

counsel played a significant role in the plea process, advising defendant in much the same way as 

if he had been in his typical representative role with respect to defendant even though defense 

counsel was purportedly only serving in a “standby” capacity. As recited above, the trial court 

conducted a thorough and extensive plea colloquy with defendant, during which defendant 

affirmatively indicated that he understood that he had a right to counsel and further indicated that 

he had sufficient time to discuss his case and his plea decision with his appointed defense counsel.

The plea transcript also reflects that defense counsel requested the no-contest plea to avoid 

potential civil liability, as well as defense counsel’s negotiation of the Cobbs agreement. 

Additionally, defense counsel stated on the record during the sentencing hearing that “[a]t the time 

the plea was taken, I know we spent a great deal of time with the court in chambers and on the 

record working out a Cobbs Agreement.” Defendant did not object to this representation.

Defendant in this case thus appears, by either consent or acquiescence, to have actually 

reaped the benefits of being represented by counsel despite purporting to represent himself. “Once 

a pro se defendant invites or agrees to any substantial participation by counsel, subsequent 

appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until 

the defendant expressly and unambiguously renews his request that standby counsel be silenced.” 

McKaskle v Wiggins, 465 US 168, 183; 104 S Ct 944; 79 L Ed 2d 122 (1984). “A defendant can 

waive his Faretta rights,” and “[p]articipation by counsel with a pro se defendant’s express 

approval is, of course, constitutionally unobjectionable.” Id. at 182. Hence, the record in this case 

reflects that defendant was still significantly protected by defense counsel from any ignorance of 

legal or constitutional rights that defendant may have harbored.6 See Zerbst, 304 US at 465.

Under the circumstances of this particular case, despite the clear deficiencies in the trial 

court’s approach to granting defendant’s request for self-representation, the record simply does 

not indicate that defendant’s conviction somehow resulted from his “own ignorance of his legal 

and constitutional rights” or that the overarching purposes of the constitutional right to counsel 

were undermined. Id. Hence, despite the trial court’s plain error, record evidence reveals that 

defendant enjoyed the benefits of appointed counsel to such a degree that the underlying purposes 

of the right were alternatively upheld during defendant’s Cobbs plea. Cain, 498 Mich at 119. As a 

result of our so finding, reversal is not warranted.

Affirmed.

/s/ Kathleen Jansen

/s/ Stephen L. Borrello 

 

6 We are aware that the mere presence of standby counsel does not cure an error such as the one 

that occurred in this case. People v Willing, 267 Mich App 208, 227-228; 704 NW2d 472 (2005). 

Regrettably, this is seemingly the state’s sole argument on appeal, that the trial court’s allowance 

of stand-by counsel cured the constitutional defect in defendant’s waiver. Such an assertion is

erroneous. Instead, what informs our exercise of discretion under the fourth Carines prong in the 

instant case is the substantial nature and extent of the record evidence of cooperative involvement 

of defense counsel with defendant following his request for self-representation.