Order Michigan Supreme Court
Lansing, Michigan
March 6, 2009 Marilyn Kelly,
Chief Justice
137238 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-Appellant, Justices
v SC: 137238
COA: 283953
Kent CC: 06-06798-FC
DERRIK LAMAR McCOY,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the July 21, 2008 order
of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we REVERSE the order of the Court of Appeals and
REINSTATE the Kent Circuit Court's order denying defendant's untimely request for
appointed appellate counsel, for the reasons stated in the Court of Appeals dissent. In a
case involving a conviction following a guilty plea, the denial of appointed appellate
counsel on the basis of the defendant's failure to comply with the 42-day deadline for
requesting counsel in MCR 6.425(G)(1)(c) does not violate Halbert v Michigan, 545 US
605 (2005).
KELLY, C.J. (dissenting).
I dissent from this Court’s decision to peremptorily reverse the Court of Appeals
decision. I also disagree with the majority’s hasty determination that Halbert v
Michigan1 is not violated in this case. Rather than summarily reversing the Court of
Appeals, I would grant the application for leave to appeal. This application raises
jurisprudentially significant issues. One concerns the authority of courts to grant
untimely requests for appellate counsel. Another concerns the conflicting treatment these
requests receive depending on whether the defendant was convicted by trial or by plea
agreement. MCR 6.425(G)(1)(b); MCR 6.425(G)(1)(c).
1
Halbert v Michigan, 545 US 605 (2005).
2
FACTS AND PROCEDURAL HISTORY
Defendant pleaded guilty of second-degree murder and possessing a firearm
during the commission of a felony under a plea agreement. At sentencing, he was
advised that he had 42 days to request appointed counsel. He filed a standard form
requesting counsel on the 68th day after his sentencing, which the circuit court denied as
untimely. Acting pro se, defendant filed an application in the Court of Appeals. Citing
Halbert, the Court of Appeals majority remanded the case to the circuit court to
determine whether defendant was indigent and, if so, to appoint counsel in light of
Halbert. Judge Hoekstra dissented and opined that the case was not controlled by
Halbert; therefore, the circuit court had not erred in denying defendant’s motion for
appointed counsel. The prosecutor appealed.
HALBERT AND MCR 6.425(G)(1)
In Halbert, the United States Supreme Court held that indigent defendants have a
constitutional right to appointed counsel to assist them in the first-tier appellate reviews
of their guilty-plea convictions. The Halbert decision effectively overruled this Court’s
decision in People v Bulger,2 in which a majority of this Court held that no such right
existed under either the federal or the state constitution.
Currently, under MCR 6.425(G)(1)(b) and (c), indigent defendants convicted
either by trial or plea agreement are entitled to the appointment of appellate counsel if
they request counsel within 42 days of sentencing. MCR 6.425(G)(1)(b), which governs
only requests for counsel by indigent defendants convicted at trial, states that “[t]he court
should liberally grant an untimely request as long as the defendant may file an application
for leave to appeal.” By contrast, MCR 6.425(G)(1)(c), which controls requests for
counsel by indigent defendants convicted by plea agreement, contains no such provision
and is entirely silent on the issue of untimely requests for counsel.
CONCLUSION
The central holding of Halbert is not directly implicated here. However, this case
raises lingering issues unresolved by Halbert and implicates similar concerns about the
disparate treatment of criminal defendants convicted by plea rather than a trial.
Therefore, I would grant leave to appeal to consider: (1) whether circuit courts have the
authority to grant indigent, plea-convicted defendants’ delayed requests for appellate
counsel under MCR 6.425(G)(1)(c) where the rule is entirely silent on the issue; (2) if so,
what standards or criteria should be considered in granting such requests; (3) if not,
whether Halbert requires more protection for plea-convicted defendants than the court
rules currently provide; and (4) whether the disparity in treatment between tardy requests
2
People v Bulger, 462 Mich 495 (2000).
3
for appellate counsel made by indigent defendants convicted by trial and those convicted
by plea is sustainable under the Equal Protection Clause.
I would not peremptorily reverse the Court of Appeals decision but would grant
the application for leave to appeal.
CAVANAGH, J., would grant leave to 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 6, 2009 _________________________________________
s0303 Clerk