Order Michigan Supreme Court
Lansing, Michigan
October 17, 2008 Clifford W. Taylor,
Chief Justice
136379 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 136379
COA: 284367
Jackson CC: 99-094110-FC
NATHAN JON WYATT,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the April 17, 2008 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
MARKMAN, J. (concurring).
Defendant pleaded no contest to three counts of first-degree criminal sexual
conduct, and the Court of Appeals denied his application for leave to appeal. The dissent
concludes that we “should grant leave to appeal to determine whether defendant is
entitled to an appeal as of right.” However, because defendant has never even attempted
to file an appeal as of right, I do not believe this issue is even before this Court.
Moreover, even if it is, I do not believe that defendant is entitled to such an appeal.
Proposal B, which eliminated appeals of right in plea cases, became effective on
December 27, 1994. Defendant’s own confession establishes that at least some of his
sexual assaults occurred long after this date. Further, the Court of Appeals has already
considered the merits of defendant’s issues and found them “lack[ing] of merit.” Finally,
although the prosecutor "begrudgingly" recommended that this Court remand to the
Court of Appeals, defendant is not thereby entitled to an appeal of right. For these
reasons, I concur in the order denying leave to appeal.
CAVANAGH, J., would remand this case to the Court of Appeals for consideration
as on leave granted.
2
KELLY, J. (dissenting).
The Court should grant leave to appeal to determine whether defendant is entitled
to an appeal as of right.
This case involves the effect of Proposal B. In November 1994, the people of
Michigan ratified Proposal B, which amended the Michigan Constitution to limit criminal
appeals and was intended to reduce the burden imposed by plea-based convictions on the
appellate system. Before December 27, 1994, the Michigan Constitution afforded a
criminal defendant an appeal as of right from any conviction.1 After Proposal B passed, a
defendant no longer had an appeal as of right if he or she had pleaded guilty or no contest
to a criminal charge. Under these circumstances, an appeal could be heard only if the
Court of Appeals granted leave to appeal.
In 1999, defendant pleaded no contest to a series of offenses that occurred “on or
about” November 1994 through May 1995. He timely requested appellate counsel after
his sentencing. Unfortunately for him, a court clerk misfiled his request, and it sat
unanswered for 8 ½ years. The circuit court finally found and acted on the request in
2008.2
The dates of the offenses for which defendant pleaded no contest straddle the
cutoff date for appeals of right. It is not clear whether Proposal B applies to offenses that
occurred both before and after the December 27, 1994, cutoff date. No caselaw has
addressed this issue. Under circumstances such as these, courts traditionally apply the
rule of lenity, mitigating the effects of the unclear law.3 “This rule of narrow
construction is rooted in the concern of the law for individual rights, and in the belief that
fair warning should be accorded as to what conduct is criminal and punishable by
deprivation of liberty or property.”4
1
Const 1963, art 1, § 20.
2
Presumably defendant would have filed an appeal as of right in this case had the court
clerk not “lost” his request for the appointment of appellate counsel. As it is, by the time
counsel was appointed, defendant no longer had that option. Hence, it is unfair to him for
Justice Markman to suggest that, because defendant never attempted to file an appeal as
of right, the issue is not before the Court. Had defendant filed an appeal as of right 8 ½
years after sentencing, the Court of Appeals surely would have denied it out of hand.
3
See People v Denio, 454 Mich 691, 699-700 (1997).
4
Huddleston v United States, 415 US 814, 831 (1974), citing United States v Wiltberger,
18 US (5 Wheat) 76, 95 (1820).
3
Hence, it appears that defendant in this case may be entitled to an appeal as of
right. Both defendant and the prosecutor urge this Court to recognize that right. After
the Court of Appeals denied defendant leave to appeal, the prosecutor continued to
recommend granting him an appeal as of right, and urged this Court to so rule “to be
safe.” We should not ignore the prosecutor’s admonition for caution. Defendant’s plea
was for conduct occurring, in part, before the cutoff date of Proposal B. Given the
likelihood that Proposal B does not apply in this case, the Court should grant leave to
appeal to resolve this question.
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 17, 2008 _________________________________________
s1014 Clerk