Order Michigan Supreme Court
Lansing, Michigan
March 26, 2010 Marilyn Kelly,
Chief Justice
139133 & (24) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman
Plaintiff-Appellee, Diane M. Hathaway,
Justices
v SC: 139133
COA: 289973
St. Joseph CC: 98-009423-FC
JOSEPH JAMES KELLER,
Defendant-Appellant.
_________________________________________/
By order of December 21, 2009, the defendant’s former appellate counsel was
directed to file a supplemental brief. On order of the Court, the brief having been
received, the application for leave to appeal the May 5, 2009 order of the Court of
Appeals is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave
to appeal, we REMAND this case to the Court of Appeals for reconsideration of the
defendant’s January 20, 2009 application for leave to appeal under the standard
applicable to direct appeals. The defendant’s former appellate counsel acknowledges that
he failed to file an application for leave to appeal from the defendant’s plea-based
conviction. Accordingly, the defendant was deprived of his direct appeal as a result of
constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470,
477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28;
119 S Ct 961; 143 L Ed 2d 18 (1999).
Costs are imposed against the defendant’s former appellate attorney, only, in the
amount of $250, to be paid to the Clerk of this Court.
We do not retain jurisdiction.
CORRIGAN, J. (concurring).
I concur in the order requiring the Court of Appeals to reconsider the defendant’s
application for leave to appeal because he was deprived of the effective assistance of
appellate counsel. I would also refer his appellate attorney, David M. Hartsook, to the
Attorney Grievance Commission to investigate Hartsook’s failure to successfully pursue
the appeal.
I, Corbin R. Davis, 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.
March 26, 2010 _________________________________________
d0323 Clerk