Order Michigan Supreme Court
Lansing, Michigan
February 1, 2008 Clifford W. Taylor,
Chief Justice
134663 & (19) 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: 134663
COA: 278507
Kent CC: 05-004592-FH;
JASON LEE DEKUBBER, 05-004593-FH; 05-004594-FC
Defendant-Appellant.
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By order of October 29, 2007, the defendant’s 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 July 13, 2007 order of the Court of Appeals is again
considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we
REMAND this case to the Court of Appeals. That court shall treat the defendant’s
delayed application for leave to appeal as having been filed within the deadline set forth
in MCR 7.205(F) and shall decide whether to grant, deny, or order other relief, in
accordance with MCR 7.205(D)(2). The defendant’s attorney acknowledges that the
defendant did not contribute to the delay in filing and she knowingly allowed the
appellate filing deadline to pass because defendant’s family was unable to pay for her
services. We conclude that 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). Counsel’s decision to delay filing and permit the
deadline to pass without seeking to withdraw from representation so that the court could
appoint appellate counsel to prepare defendant’s appeal was the “but-for” cause of
defendant’s lost appeal.
Costs are imposed against the attorney, only, in the amount of $250, to be paid to
the Clerk of this Court.
We do not retain jurisdiction
CORRIGAN, J., dissents and states as follows:
2
I respectfully dissent. The defendant’s retained appellate attorney missed the
deadline for late appeal in the Court of Appeals. As a result, his appeal was dismissed for
lack of jurisdiction. Under Roe v Flores-Ortega, 528 US 470, 486 (2000), a defendant
alleging that ineffective assistance of counsel deprived him of his appeal must show that,
“but for counsel’s deficient conduct, he would have appealed.” Thus, the defendant must
establish, as a factual matter, that his appellate attorney caused him to forgo an appeal by
rendering assistance that fell below professional norms. His attorney may not be the but-
for cause of his lost appeal if the defendant contributed to the delay or indicated that he
did not wish to appeal. Cf. Peguero v United States, 526 US 23, 25-26, 28 (1999). Here,
the defendant replaced his appointed appellate attorney by retaining a second attorney
almost 11 months after his convictions and sentences were entered. After the retained
attorney filed an unsuccessful motion for resentencing in the trial court, the defendant’s
family did not pay his legal bills on time. His retained attorney asserts that, although the
family’s inability to pay was “not Defendant’s fault,” she waited to prepare and file his
appeal until she received payment. She also claims that she informed the defendant and
his family that she would not pursue an appeal until the defendant paid his outstanding
legal bills and an additional retainer. Under these circumstances, questions of fact remain
regarding whether the retained attorney caused the defendant to forgo his appeal by
rendering assistance that fell below professional norms and whether the defendant
contributed to the delay. Accordingly, I would remand for the trial court to address these
questions at a Ginther hearing. People v Ginther, 390 Mich 436 (1973).
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.
February 1, 2008 _________________________________________
d0129 Clerk