Order Michigan Supreme Court
Lansing, Michigan
October 21, 2009 Marilyn Kelly,
Chief Justice
138238 & (12)(13) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 138238
COA: 288460
Tuscola CC: 05-009572-FC;
05-009577-FH
DAVID HENRY JOHNSON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 1, 2008
order of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of
granting leave to appeal, we REMAND this case to the Tuscola Circuit Court for the
appointment of appellate counsel. Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162
L Ed 2d 552 (2005). The circuit court shall initially determine whether former counsel
can still represent the defendant. The circuit court shall direct the court reporter to
prepare and file that portion of the February 7, 2006 trial transcript that contains the
factual basis for the defendant’s plea in Case No. 05-009572-FC. Appointed counsel
may file an application for leave to appeal to the Court of Appeals, and/or any
appropriate postconviction motions in the trial court, in accordance with MCR 7.205(F),
except that the time for filing shall be determined based on the date of the circuit court’s
order appointing counsel. Because the defendant was sentenced and should have been
appointed counsel, after January 1, 2006, counsel shall have six months from the date of
the filing of the transcript to file any post-conviction motions.
In the course of accepting the defendant’s nolo contendere plea, the trial judge
added a term not agreed to by the parties. In advising the defendant of the trial rights that
he would be waiving by pleading no contest, the trial judge asked the defendant if he
understood that by pleading no contest he would be giving up the rights to seek an appeal
to the Court of Appeals, to receive a free transcript, and to court-appointed counsel to
perfect an appeal. The inquiry was not preceded by any statement that the defendant had
the right to court-appointed appellate counsel under Halbert or under the then recently
amended court rules. When asked by the trial judge whether he understood and agreed to
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this waiver, the defendant indicated that he did. At the time of the defendant’s plea and
sentence, he was entitled to those appellate rights. See Halbert v Michigan, supra, and
MCR 6.425(F) and (G). After twice denying the defendant’s subsequent requests for the
appointment of appellate counsel, the trial judge filed an order granting the appointment
over two years after sentence was imposed. This delay in appointing counsel prevented
the defendant from filing any timely, appropriate postconviction motions and thereby
preserving any substantive issues. The motions for stay or peremptory reversal and to
take judicial notice are DENIED as moot.
We do not retain jurisdiction.
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.
October 21, 2009 _________________________________________
s1014 Clerk