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People v. Wemigwans1/7/2003
as pointed out by the trial court, relates to the appointment of counsel to indigent defendants. Under Michigan law, if defendant established indigency and the risk of incarceration, then he would have been entitled to the benefit of counsel. Under tribal law, a defendant receives no such guarantee. Instead, a defendant only receives the benefit of counsel at his own expense. Preliminarily we note that Michigan law does not require that all process be identical. Rather, we review in its entirety the process afforded defendant in the foreign jurisdiction for an intolerably high risk of unfairness. In the present case, the substantive laws in question are identical, the procedural protections afforded in the foreign jurisdiction are generally consistent with the procedural protections afforded under Michigan law and defendant was found to have made a knowing, free and voluntary waiver of the many rights that were expressly explained to him in order to tender a plea of guilty. Thus, it would not be without reason to conclude, regardless of defendant's indigency status, that defendant was afforded sufficient due process in the foreign jurisdiction to allow the use of the foreign convictions for purposes of enhancing the charge against defendant. However, we need not reach this conclusion.
We conclude defendant failed to establish that he was prejudiced by the denial of appointed counsel in the tribal court because he failed to establish his indigency at the time he offered his tribal court guilty pleas. A defendant who collaterally challenges an antecedent conviction allegedly procured without the benefit of counsel or a knowing waiver of the right to counsel bears the burden of establishing that the conviction was improperly obtained. People v Carpentier, 446 Mich 19, 31; 521 NW2d 195 (1994). Based on our review of the entire record, we conclude that nothing occurred in the two prior tribal court proceedings that cast any serious doubt on the veracity or fairness of process of defendant's prior convictions. Use of prior foreign convictions for enhancement purposes under these circumstances is appropriate.
We reverse and remand for sentencing. We do not retain jurisdiction.
Donald E. Holbrook, Jr.
Brian K. Zahra
Donald S. Owens
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