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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 8, 2016

v No. 328486 Muskegon Circuit Court MICHAEL THOMAS, LC No. 14-065197-FH

Defendant-Appellant.

Before: S AWYER
, P.J., and M ARKEY and O’B RIEN , JJ.

P ER C URIAM

.
Defendant was convicted by a ju ry of assault and battery, MCL 750.81. The trial court sentenced defendant to 93 days in jail, with credit for time se rved. Defendant appeals by right.
We affirm but remand for correct ion of the judgment of sentence

. 1

Defendant first argues that the trial court erroneously refuse d defendant’s request to waive counsel. We review a trial court’s decision to permit a defendant to represent himself for
an abuse of discretion. People v Hicks , 259 Mich App 518, 521; 675 NW2d 599 (2003). A criminal defendant has a right to represent himself. US Const, Am VI; Const 1963, art 1, § 13;
MCL 763.1. To effectuate a valid waiver of counsel and to perm it a defendant to represent himself, certain requirements must be met:

1 Defendant was charged with coun t (1) possessing a weapon as a prisoner, MCL 800.283(4) and count (2) assault with a dangerous weapon (homemade knife or sh ank), MCL 750.82. He was also charged with being a fourth-offense habitual offender, MCL 769.12. The jury found defendant not guilty of the fel onies but convicted him of the l esser-included offense of assault and battery, a misdemeanor. Because the plain language of the habitual offender statutes requires for the enhancement of a sentence that a person both c ommit a subsequent felony and be convicted of the subsequent felony, see MCL 769.12(1), the tria l court erred by checking the box on the judgment of sentence that indicates defendant was convic ted by the court of the habitual offender charge. We therefore remand for the ministerial task of correcting the judgment of
sentence to remove reference to t he habitual offender charge or to indicate that it was dismissed.-2- Upon a defendant’s initial request to proceed pro se, a court m ust determine that (1) the defendant’s request is unequivocal, (2) the defendant i s asserting his right knowingly, intelligently, and voluntarily through a colloquy ad vising the defendant of the dangers and disa dvantages of self-representati on, and (3) the defendant’s self-representation will not disrupt, unduly inconv enience, and burden the court and the administration of the court’s business. [ People v Russell , 471 Mich 182, 190; 684 NW2d 745 (2004).]

“The existence of a knowing and intelligent waiver of the Sixth Amendment right to counsel depends upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” People v McElhaney , 215 Mich App 269, 274; 545 NW2d 18 ( 1996). “[I]t is a long-held principle that c ourts are to make every reasonable presumption against the waiver of a fundamental constitutional right, including th e waiver of the right to the assistance of counsel.” Russell , 471 Mich at 188.

In this case, on the first day of trial, defense counsel—at de fendant’s request—moved to adjourn; the trial court denied t he motion. After the trial co urt denied the motion to adjourn, defendant asked to represent himself. The trial court denied d efendant’s request for selfrepresentation on the basis that allowing defendant to represen t himself would unduly burden the
administration of court business.

It appears from the record tha t the trial court did not consid er whether defendant’s request was unequivocal and made knowingl y, intelligently, and voluntar ily. This does not mean, however, that the trial court abus ed its discretion in its ulti mate decision to deny defendant’s request. Defendant does not p resent anything to support that a trial court must make conclusions on the three factors in any particular order or that it must co nsider whether the request was unequivocal and was made knowingly, intelligently, and voluntar ily at all if it first concludes that the request would disrupt, unduly inconvenience, or burden the court. To effectuate a waiver of counsel, the trial court must conclude that all three requireme nts set out in Russell were met, but if any one of the three is not, a defendant has not effectuated a valid waiver of counsel. Russell

, 471 Mich at 190-192. If the trial court properly determined th at defendant’s self-representation would have disrupted trial, the re could be no valid waiver. Id

.

Moreover, in People v Hill , 282 Mich App 538, 551; 766 NW2d 17 (2009), aff’d in part, vacated in part 485 Mich 912 (2009), the trial court denied the defendant’s request to represent himself “without any pertinent inquiry” into whether the reques t was unequivocal or made knowingly, intelligently, and voluntarily. In reviewing the ca se, our Supreme Court concluded
that the trial court’s decision “did not deny the defendant his constitutional right to selfrepresentation where the defendant ’s request was not timely and granting the request at that moment would have disrupted, und uly inconvenienced, and burdene d the administration of the court’s business” and the defendant’s constitutional right to s elf-representation was not violated. People v Hill , 485 Mich 912; 773 NW2d 257 (2009).

Defendant has not shown that the trial court abused its discre tion in finding that his selfrepresentation would have disr upted trial. The record supports that defendant brought numerous pretrial motions but did not ask to represent himself before th e first day of trial. There is nothing to suggest that defendant had pre pared in any way to represent himself. Earlier, the trial court-3- expressed its concern that defe ndant’s motion to adjourn was “j ust an attempt to stall off the trial.” Finding that defendant’s self-representation would dis rupt, unduly inconvenience, and
burden the court and the administ ration of the court’s business did not fall outside the range of reasonable and principled outco mes, and, therefore, the trial c ourt did not abuse its discretion in denying defendant’s request. Hicks , 259 Mich App 521.

Defendant next argues that he was deprived of his right to a f air trial when the trial court admitted irrelevant and prejudicial expert testimony regarding gang activity. This issue has been waived. Waiver is “the intentional relinquishment or abandonme nt of a known right.” People v
Kowalski , 489 Mich 488, 503; 803 NW2d 200 (2011) (citation and quotatio n marks omitted). A defendant may waive his right to challenge expert testimony. People v Sardy , 313 Mich App 679, 719; ___ NW2d ___ (2015). In this case, defense counsel e xpressly approved the trial court’s action in accepting the subject witness as an expert an d specifically ind icated that he wanted the witness to testify regarding gang activities in pris on. Accordingly, defendant has waived this issue, and there is no claim of error for this Cour t to review. People v Carter , 462 Mich 206, 219; 612 NW2d 144 (2000).

Finally, defendant argues that h e was denied the effective ass istance of counsel when his trial counsel failed to object t o the admission of the expert’s testimony. To establish the ineffective assistance of counsel a defendant must show (1) tha t counsel’s representation fell below an objective standard of reasonableness, and (2) that the re is a reasonable probability that, but for counsel’s errors, the result of the proceeding would ha ve been different. People v Toma

, 462 Mich 281, 302-303; 613 NW2d 694 (2000). Defendant has not shown that any inadmissible evidence was improperly admitted at trial. “Trial counsel is n ot required to advocate a meritless position.” People v Snider , 239 Mich App 393, 425; 608 NW2d 502 (2000). Defendant has no t shown that defense counsel’s perf ormance was deficient or that he was prejudiced. Id . at 424.

We affirm but remand for correction of the judgment of sentenc e. We do not retain jurisdiction.

/s/ David H. Sawyer /s/ Jane E. Markey
/s/ Colleen A. O'Brien