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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UNPUBLISHED 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: SAWYER, P.J., and MARKEY and O’BRIEN, JJ. 

PER CURIAM. 

 Defendant was convicted by a jury of assault and battery, MCL 750.81. The trial court 

sentenced defendant to 93 days in jail, with credit for time served. Defendant appeals by right. 

We affirm but remand for correction of the judgment of sentence.

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 Defendant first argues that the trial court erroneously refused 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 permit a defendant to represent 

himself, certain requirements must be met: 

 

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 Defendant was charged with count (1) possessing a weapon as a prisoner, MCL 800.283(4) and 

count (2) assault with a dangerous weapon (homemade knife or shank), 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 felonies but convicted him of the lesser-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 commit a subsequent felony and be 

convicted of the subsequent felony, see MCL 769.12(1), the trial court erred by checking the box 

on the judgment of sentence that indicates defendant was convicted 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 the habitual offender charge or to indicate that it was dismissed. 
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Upon a defendant’s initial request to proceed pro se, a court must determine that 

(1) the defendant’s request is unequivocal, (2) the defendant is asserting his right 

knowingly, intelligently, and voluntarily through a colloquy advising the 

defendant of the dangers and disadvantages of self-representation, and (3) the 

defendant’s self-representation will not disrupt, unduly inconvenience, 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 courts are to make every reasonable 

presumption against the waiver of a fundamental constitutional right, including the 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 defendant’s request—moved to 

adjourn; the trial court denied the motion. After the trial court denied the motion to adjourn, 

defendant asked to represent himself. The trial court denied defendant’s request for selfrepresentation on the basis that allowing defendant to represent himself would unduly burden the 

administration of court business. 

 It appears from the record that the trial court did not consider whether defendant’s request 

was unequivocal and made knowingly, intelligently, and voluntarily. This does not mean, 

however, that the trial court abused its discretion in its ultimate decision to deny defendant’s 

request. Defendant does not present anything to support that a trial court must make conclusions 

on the three factors in any particular order or that it must consider whether the request was 

unequivocal and was made knowingly, intelligently, and voluntarily 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 requirements 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 that defendant’s self-representation 

would have disrupted trial, there 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 request was unequivocal or made 

knowingly, intelligently, and voluntarily. In reviewing the case, 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, unduly inconvenienced, and burdened the administration of the 

court’s business” and the defendant’s constitutional right to self-representation was not violated. 

People v Hill, 485 Mich 912; 773 NW2d 257 (2009). 

 Defendant has not shown that the trial court abused its discretion in finding that his selfrepresentation would have disrupted trial. The record supports that defendant brought numerous 

pretrial motions but did not ask to represent himself before the first day of trial. There is nothing 

to suggest that defendant had prepared in any way to represent himself. Earlier, the trial court 
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expressed its concern that defendant’s motion to adjourn was “just an attempt to stall off the 

trial.” Finding that defendant’s self-representation would disrupt, unduly inconvenience, and 

burden the court and the administration of the court’s business did not fall outside the range of 

reasonable and principled outcomes, and, therefore, the trial court 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 fair 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 abandonment of a known right.” People v 

Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (citation and quotation 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 expressly approved the trial 

court’s action in accepting the subject witness as an expert and specifically indicated that he 

wanted the witness to testify regarding gang activities in prison. Accordingly, defendant has 

waived this issue, and there is no claim of error for this Court to review. People v Carter, 462 

Mich 206, 219; 612 NW2d 144 (2000). 

 Finally, defendant argues that he was denied the effective assistance of counsel when his 

trial counsel failed to object to the admission of the expert’s testimony. To establish the 

ineffective assistance of counsel a defendant must show (1) that counsel’s representation fell 

below an objective standard of reasonableness, and (2) that there is a reasonable probability that, 

but for counsel’s errors, the result of the proceeding would have 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 not required to advocate a meritless 

position.” People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Defendant has not 

shown that defense counsel’s performance was deficient or that he was prejudiced. Id. at 424. 

 We affirm but remand for correction of the judgment of sentence. We do not retain 

jurisdiction. 

/s/ David H. Sawyer 

/s/ Jane E. Markey 

/s/ Colleen A. O'Brien