Order Michigan Supreme Court
Lansing, Michigan
July 28, 2006 Clifford W. Taylor,
Chief Justice
130530 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: 130530
COA: 266136
Muskegon CC: 04-049741-FH
WILLIE C. PIPKINS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 17, 2006
order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we VACATE the Muskegon Circuit Court’s September 22,
2005 order denying defendant’s motion for appointment of new appellate counsel. We
REMAND this case to the Muskegon Circuit Court for a determination of whether
defendant is indigent and, if so, for the appointment of appellate counsel. Halbert v
Michigan, 545 US __; 125 S Ct 2582; 162 L Ed 2d 552 (2005).
Appellate defense counsel’s March 2, 2005 motion to withdraw as appellate
counsel and for substitute counsel represented that defendant had requested his
withdrawal and that he and defendant differed over pursuit of a frivolous appellate issue,
but it did not represent that counsel believed that no non-frivolous issues existed to
pursue on appeal. Rather, the motion suggested that non-frivolous, preserved appellate
issues existed by stating that:
[Defendant] made a motion to withdraw his plea at his sentencing,
which was denied by the Court. At sentencing, trial counsel objected to the
scoring of some disputed guidelines; some objections were granted and
others were denied. As such, this case could have proceeded to the Court
of Appeals on the denial of the motion to withdraw and on the guidelines
issue but for this new issue over the habitual offender notice. Yet now,
appellate counsel is confronted with a client who refuses to dismiss the
appeal, insists on raising [another] issue which appellate counsel finds
meritless and Defendant rejects appellate counsel [emphasis supplied].
2
Thus, the March 14, 2005 circuit court order that granted counsel’s motion to withdraw
but denied his and defendant’s pro se requests for substitute appellate counsel could not
have been premised on any sustainable finding that all potential appellate issues were
frivolous. An indigent defendant was not then entitled to appointed appellate counsel,
except in specified circumstances inapplicable here. MCR 6.302(B)(6), 466 Mich lxxxiv-
lxxxv (2002); MCR 6.425(E)-(F), 461 Mich cxcix-ccix (2000); and MCL 770.3a(1)-(2).
Therefore, the September 22, 2005 circuit court order improperly denied defendant’s
post-Halbert motion for appointed appellate counsel by erroneously finding that “[o]n
March 14, 2005, the Court granted appellate counsel’s motion to withdraw on the ground
that he did not want to file a frivolous appeal and defendant demanded substitute
appellate counsel.” Even if the March 14, 2005 order was sustainable under then-extant
authority, Halbert abrogated that authority and defendant was thus deprived of his right
to appointed appellate counsel to pursue the non-frivolous issues identified in former
appointed appellate counsel’s withdrawal motion.
Appointed counsel may file an application for leave to appeal with the Court of
Appeals, and/or any appropriate postconviction motions in the trial court, within twelve
months of the date of the circuit court’s order appointing counsel, as, at the time
defendant was denied counsel, he was entitled to file pleadings within twelve months of
sentencing rather than six months. See the former versions of MCR 7.205(F)(3), MCR
6.311, and MCR 6.429.
We do not retain jurisdiction.
CORRIGAN, J., dissents and states as follows:
I respectfully dissent from the majority’s decision to remand the case for
appointment of substitute appellate counsel. When the court appointed appellate
counsel, defendant received that which is required by Halbert v Michigan, 545 US__;
125 S Ct 2582 (2005). Halbert does not require that the court appoint a second appellate
attorney because defendant disliked the first. Indigent defendants who receive
appointed counsel do not have the right to counsel of their choice. This Court should
refrain from recognizing a right that simply does not exist.
The trial court appointed Steve Ramey as appellate defense counsel after
defendant pleaded no contest to a charge of third-degree criminal sexual conduct, MCL
750.520d(1)(a), as a fourth-offense habitual offender. Defendant wished to appeal the
sentence enhancement, believing that it was flawed. The felony information listed a
1993 conviction that defendant claimed had never occurred. Because the 1993
conviction was irrelevant, given defendant’s three other uncontested felonies, Ramey, in
the exercise of his professional judgment, declined to raise the sentence enhancement as
an appellate issue. Defendant then insisted that Ramey withdraw from representing him.
3
Ramey moved to withdraw and also sought the appointment of substitute
appellate counsel. Within the week, defendant also moved pro se for Ramey’s removal
and for appointment of substitute appellate counsel under Halbert. The trial court
granted Ramey’s motion to withdraw, but denied Ramey's and defendant’s motions for
appointment of substitute appellate counsel. The court also stated that it had not
considered the 1993 conviction when imposing the sentence enhancement.
In Halbert, the Supreme Court held that “the Due Process and Equal Protection
Clauses require the appointment of counsel for defendants, convicted on their pleas, who
seek access to first-tier review in the Michigan Court of Appeals.” Halbert, supra, 125
S Ct 2586. As Halbert required, the trial court here provided defendant with appointed
appellate counsel.
The majority has fundamentally misconstrued Halbert. It does not grant an
indigent defendant the right to appointed appellate counsel of his choosing. This notion
is wholly unsupported by Halbert and contrary to a subsequent Supreme Court opinion.
Halbert said nothing about a right to more than one appointed appellate counsel. And
the Supreme Court has since reiterated that “an element of [the Sixth Amendment right
to counsel] is the right of a defendant who does not require appointed counsel to choose
who will represent him.” United States v Gonzalez-Lopez, __US__; 126 S Ct 2557,
2561 (2006), citing Wheat v United States, 486 US 153, 159 (1998) (emphasis added).
The Supreme Court has thus clarified that the right to counsel of choice does not extend
to indigent defendants with appointed counsel.
The trial court here provided defendant with appointed appellate counsel to assist
in seeking access to first-tier review. Halbert’s requirements were thereby met.
Defendant, acting of his own volition, then sought counsel’s withdrawal. The trial court
correctly ruled that “there is no rule in state or federal law which mandates the
appointment of two or more appellate counsel to represent an indigent defendant at
public expense.” I would therefore deny defendant’s application for leave to appeal in
this Court, because Halbert does not entitle an indigent defendant to appointed appellate
counsel of his choosing.
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.
July 28, 2006 _________________________________________
s0725 Clerk