PEOPLE v. PORTILLO (2000)

Defendant, who was charged with four counts of assault with intent to do great bodily harm less than murder, M.C.L. § 750.84;  MSA 28.279, and felonious driving, M.C.L. § 752.191;  MSA 28.661, was convicted by a jury of four counts of the lesser offense of felonious assault, M.C.L. § 750.82;  MSA 28.277, and felonious driving.   Defendant was tried jointly with a codefendant, Jeremiah Saunders, who was also convicted of four counts of felonious assault and felonious driving.   Defendant was sentenced to two years' probation, including completion of a 90- to 120-day Special Alternative Incarceration (boot camp) program.   He appeals as of right.   We affirm.

 Defendant and his codefendant were jointly tried, and both were represented by the same retained attorney.   Defendant argues that the court rule governing joint representation, MCR 6.005(F), violates his constitutional right to equal protection, U.S. Const., Am. XIV;  Const. 1963, art. 1, § 2, because it mandates separate counsel for jointly charged indigent defendants but does not mandate separate counsel for jointly charged defendants where counsel is retained.   Because MCR 6.005(F) does not restrict a defendant's right to retain counsel of his own choosing, we do not believe that the “strict scrutiny” test is applicable.  People v. Pitts, 222 Mich.App. 260, 272-273, 564 N.W.2d 93 (1997).   Instead, we apply the “rational basis” test to review the constitutionality of MCR 6.005(F).  Pitts, supra at 273, 564 N.W.2d 93.

 Under the “rational basis” test, the legislation, or in this case MCR 6.005(F), is presumed to be constitutional, and the party challenging it has the burden of proving that it is arbitrary and, therefore, irrational.  Pitts, supra at 273, 564 N.W.2d 93.   The constitutionality of MCR 6.005(F) will be upheld if the classification scheme created in it is rationally related to a legitimate governmental purpose.  Pitts, supra at 273, 564 N.W.2d 93.   Under this test, the wisdom, need, or appropriateness of the scheme is not measured.  People v. Sleet, 193 Mich.App. 604, 607, 484 N.W.2d 757 (1992).

 MCR 6.005(F) distinguishes between defendants who are indigent and those who can afford to retain their own counsel.   A defendant who can afford to retain counsel on his own cannot have that right restricted by the courts.   Such a defendant has a constitutional right to defend an action through the attorney of his choice.   Const. 1963, art. 1, § 13;  MCL 600.1430;  MSA 27A.1430;  People v. Arquette, 202 Mich.App. 227, 231, 507 N.W.2d 824 (1993).   In contrast, an indigent defendant is entitled to the appointment of counsel, but he does not have the right to have counsel of his choosing appointed.  People v. Ginther, 390 Mich. 436, 441, 212 N.W.2d 922 (1973).   The Supreme Court had a rational basis for treating these classes of defendants differently.   Requiring that separate counsel be appointed for jointly charged indigent defendants avoids problems with conflicts of interest arising from joint representation, as well as problems with jointly represented indigent defendants later claiming that their rights were violated.   Further, requiring the appointment of separate counsel for jointly charged indigent defendants is a means of assuring that indigent defendants obtain fair trials.   Therefore, defendant has not shown that the classification scheme in MCR 6.005(F) is not rationally related to a legitimate governmental purpose.  Pitts, supra at 273, 564 N.W.2d 93.

 Defendant also argues that he was denied the effective assistance of counsel as a result of counsel's joint representation of himself and codefendant Saunders.   Because defendant did not request an evidentiary hearing on this issue in the trial court, our review is limited to the existing record.  People v. Wilson, 196 Mich.App. 604, 612, 493 N.W.2d 471 (1992).

The record indicates that the trial court complied with MCR 6.005(F) by eliciting from defense counsel the reasons for believing that joint representation would not cause a conflict of interest, by questioning each defendant about whether they wished to retain separate counsel, and by finding that joint representation would not cause a conflict of interest.   Additionally, the trial court's questioning demonstrates that defendant voluntarily agreed to the joint representation.   Finally, the record does not factually support defendant's claim that an actual conflict of interest adversely affected his lawyer's performance.  People v. Smith, 456 Mich. 543, 556-557, 581 N.W.2d 654 (1998).   Therefore, appellate relief is not warranted.

Affirmed.

FITZGERALD, J.