Order Michigan Supreme Court
Lansing, Michigan
February 6, 2013 Robert P. Young, Jr.,
Chief Justice
145536 & (25) Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack,
Justices
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v SC: 145536
COA: 306864
Oakland CC: 2009-227279-FH
JAMES HENRY NELSON,
Defendant-Appellant.
____________________________________/
By order of December 12, 2012, the prosecuting attorney was directed to answer
the application for leave to appeal the June 21, 2012 order of the Court of Appeals. On
order of the Court, the answer having been received, the application for leave to appeal is
again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal,
we REMAND this case to the Oakland Circuit Court for the appointment of substitute
appellate counsel. The record shows that initially appointed appellate counsel moved to
withdraw because of a breakdown of the attorney-client relationship. The record does not
show that counsel determined or advised the court that there was no non-frivolous issue
to raise on appeal, and counsel’s motion did not comply with MCR 7.211(C)(5) or AO
2004-6, Standard 5. Under the circumstances of this case, the circuit court erred in
granting the motion to withdraw without appointing substitute appellate counsel. On
remand, newly appointed appellate counsel may file an application for leave to appeal to
the Court of Appeals within 12 months of the date of the circuit court’s order appointing
counsel, as, at the time the defendant was sentenced, he was entitled to file an application
within 12 months of sentencing. See former MCR 7.205(F)(3).
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 6, 2013 _________________________________________
h0130 Clerk