Where a jury found a defendant guilty of second-degree criminal sexual conduct (victim under 13 years old) and accosting a child for an immoral purpose, those convictions should be affirmed despite the defendant’s argument that his trial counsel was ineffective for failing to provide him with an interpreter.
“Defendant appeals as of right his jury trial convictions for second-degree criminal sexual conduct (victim under 13 years old) (CSC-II), MCL 750.520c(1)(a), and accosting a child for an immoral purpose, MCL 750.145a. Defendant was sentenced to 24 to 180 months’ imprisonment for the CSC-II conviction and 85 days for the accosting a child for an immoral purpose conviction. We affirm.
“Defendant argues that his trial counsel was ineffective for failing to provide him with an interpreter during trial. We disagree.
“Here, the district and circuit courts appointed defendant an interpreter in their respective orders. These orders both required that defendant be appointed an interpreter ‘until the conclusion of the case or until further order of the Court.’ There is no evidence in the record of any subsequent order modifying or vacating either order. There is also no evidence that defendant ever waived his right to an interpreter. We conclude that a reasonable performance by an attorney would have included the review of defendant’s file and awareness of the two court orders requiring the appointment of an interpreter. Additionally, because (1) both court orders required an interpreter until the case was concluded or until further order of the court, (2) there was no following order modifying them, and (3) defendant did not waive his appointment of an interpreter, we conclude it was unreasonable for defendant’s trial counsel to ignore the court orders and not secure defendant an interpreter for trial.
“However, even though defense counsel’s performance was below an objective standard of reasonableness, we conclude defendant failed to establish prejudice, that is, that there is a reasonable probability the outcome of the trial would have been different but for his counsel’s error.
“Further, we conclude defense counsel’s failure to secure an interpreter at trial was not a structural error. ‘Structural errors are defects that affect the framework of the trial, infect the truth gathering process, and deprive the trial of constitutional protections without which the trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.’ ... As discussed above, because defendant spoke and understood English, defendant was not prevented from being present at trial or from testifying at trial. We conclude the framework of the trial was not affected and that the court was still able to reliably serve its function because defendant spoke and understood English.”
Dissenting judge’s comments
N.P. HOOD, P.J. (dissenting). “Now on appeal, we face the same question: whether he understands English well enough for us to confidently affirm his conviction. The Legislature has indicated that we should not have to answer that question. So do our court rules. ... So does our precedent. Relying on these authorities, I would vacate the conviction and sentence and remand for a new trial.
“For the above-stated reasons, I would vacate the conviction and remand for a new trial with an interpreter or valid waiver prior to trial. This case is not about ineffective trial counsel. And it is not about an appellate parachute. This case is about the trial court’s own failure to follow MCL 775.19a and the orders contained within the court file. Acknowledgment of this failure prompted the trial court to provide an interpreter at the Ginther hearing. It should have prompted the trial court to grant the motion for a new trial. For these reasons I would vacate, leaving it unnecessary to address the other claims of error.”
People v. Kejjan; MiLW 08-107988, 7 pages; Michigan Court of Appeals unpublished per curiam; Feeney, J.; Jansen, J., concurring; N. P. Hood, J., dissenting; on appeal from Ingham Circuit Court; Alona Sharon for appellant; Elizabeth L. Allen for appellee.
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