Order Michigan Supreme Court
Lansing, Michigan
September 18, 2013 Robert P. Young, Jr.,
Chief Justice
146675 & (21) Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano,
Plaintiff-Appellee, Justices
v SC: 146675
COA: 312171
Kent CC: 11-006928-FH
JAMES MICHAEL DeWEESE,
Defendant-Appellant.
_________________________________________/
By order of May 28, 2013, the prosecuting attorney was directed to answer the
application for leave to appeal the December 17, 2012 order of the Court of Appeals. On
order of the Court, the answer having been received, the application for leave to appeal is
again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal,
we REMAND this case to the Kent Circuit Court for the appointment of substitute
appellate counsel. The defendant is entitled to appointed appellate counsel in his
application to the Court of Appeals. Halbert v Michigan, 545 US 605, 610 (2005). The
record shows that initially appointed appellate counsel moved to withdraw because of a
breakdown of the attorney-client relationship. The record does not show that counsel
determined or advised the court that there was no non-frivolous issue to raise on appeal,
and counsel’s motion did not comply with Halbert, 545 US 605, 623 (2005), citing
Anders v California, 386 US 738, 744 (1967); MCR 7.211(C)(5); or AO 2004-6,
Standard 5. Under the circumstances of this case, the circuit court erred in granting the
motion to withdraw without appointing substitute appellate counsel. On remand, newly
appointed appellate counsel may file an application for leave to appeal to the Court of
Appeals within 6 months of the date of the circuit court’s order appointing counsel, as, at
the time the defendant was sentenced, he was entitled to file an application within 6
months of sentencing. See MCR 7.205(F)(3).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 18, 2013
p0911
Clerk