People v. Neal

Per Curiam.

The defendant was convicted in circuit court of a drug offense. He appealed. In accordance with court rules then in effect, the court reporter prepared a transcript that omitted the jury voir dire. The Court of Appeals later affirmed the defendant’s conviction. We remand the case to the circuit court for transcription of the voir dire, and direct that the defendant has a limited right to appeal on the basis of issues that may arise from the voir dire.

i

Following a July 1993 raid on his house, the defendant was charged with possessing less than fifty grams of heroin with intent to deliver.1 In February 1994, a jury convicted him of the charged offense. He *75then pleaded guilty of being an habitual offender.2 Five weeks later, the defendant was sentenced to an enhanced term of five to twenty-five years in prison.

The defendant is indigent, and so the circuit court appointed an attorney to represent him on appeal. The April 1994 appointment order indicates that the transcripts, including the trial transcript, were ordered from the court reporter. In May 1994, the court reporter filed her certificate, confirming that the transcript had been ordered. She indicated that it would be furnished in late June 1994.

On the day the reporter filed her certificate, this Court entered an order amending three court rules.3 Effective July 1, 1994, the amended rules provided that a transcript of the jury voir dire was not to be prepared “unless the defendant challenged the jury array, exhausted all peremptory challenges, was sentenced to serve a term of life imprisonment without the possibility of parole, or shows good cause . . . .”

In the present case, the court reporter finished the trial transcript on July 20, 1994, and filed it several days later. The transcript does not include the jury voir dire.

In November 1994, appointed counsel asked for permission to withdraw because of other commitments. Substitute counsel was appointed in early December.

*76Shortly after his appointment, new counsel filed on the defendant’s behalf a motion for new trial, in which he raised several issues. One argument was that “[MCR] 6.425(F)(2), as amended, which excepts transcripts of the voir dire is an unconstitutional deprivation of due process.” Before the hearing on the motion, the defendant filed a written request for the voir dire transcript. He acknowledged that he did not meet the qualifications stated in the amended court rules, but said that he believed the limitation to be unconstitutional.

The circuit court denied the motion for new trial. With regard to the defendant’s request for the voir dire transcript, the circuit court relied on the court rules, as amended in 1994.

In his brief to the Court of Appeals, the defendant framed five issues. Among them was a claim that it was error to deny him a transcript of the jury voir dire. However, he did not raise a specific objection to anything that took place during the voir dire.

The Court of Appeals affirmed the defendant’s conviction.4 Concerning the defendant’s claim that it was error to deny him a transcript of the voir dire, the Court of Appeals observed that he “alleges no error during voir dire such that a copy of the transcript was necessary to vindicate any substantial right.”

Appearing in propria persona, the defendant filed a delayed application for leave to appeal in this Court. We held the application in abeyance,5 pending resolu*77tion of a case in which we previously had granted leave to appeal. People v Bass, 456 Mich 851 (1997).

As explained below, we issued a final order in Bass earlier this year, and thus the present application again comes before us.

n

In People v Bass (On Rehearing), 223 Mich App 241, 255-260; 565 NW2d 897 (1997), the Court of Appeals rejected a claim that the 1994 court rule amendments violated an indigent defendant’s constitutional right to equal protection. However, the Court found that excluding the jury voir dire from the trial transcript could interfere with the defendant’s right to effective assistance of appellate counsel. The Court of Appeals explained:

In Hardy v United States, 375 US 277; 84 S Ct 424; 11 L Ed 2d 331 (1964), the Court held that, In the federal system, where a defendant has an appeal of right and Congress has enacted statutes to buttress that right, the entire transcript must be produced when appointed appellate counsel did not serve as trial counsel. The Court reasoned as follows:
“But when, as here, new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript? His duty may possibly not be discharged if he is allowed less than that. For Rule 52(b) of the Federal Eules of Criminal Procedure provides: ‘Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.’ The right to notice ‘plain errors or defects’ is illusory if no transcript is available at least to one whose lawyer on appeal enters the case after the trial is ended. [Id. at 279-280 (emphasis added).]”
The Hardy Court held that, under the circumstances of the case, the defendant was entitled to transcripts of the court’s *78charge to the jury and the testimony presented by the prosecution and the defense. Id. at 282. The Court relied on federal law and explicitly declined to consider whether a complete transcript was constitutionally required. Id.
We find that the remarks of the Hardy Court are equally applicable to the circumstances of this case. The standards for appointed appellate counsel[6] require that counsel assert claims of error that are supported by the record and possess arguable legal merit. In order to faithfully discharge the duties imposed by the Appellate Defender Commission and the Supreme Court, counsel must have access to transcripts of all the proceedings so that all issues of legal merit can be raised. Although appellate counsel could contact trial counsel and inquire about voir dire, information obtained from trial counsel is not a substitute for a transcript because trial counsel’s memory may be faulty, trial counsel may not be aware that an error occurred during voir dire, id. at 280, n 3, or trial counsel may be the target of the defendant’s claim of error. We therefore conclude that a transcript of voir dire must be provided in all cases where appointed appellate counsel was not the indigent defendant’s trial counsel. Accordingly, in this case, we find that defendant is entitled to a transcript of the voir dire testimony, to determine if any justifiable claims of error occurred during the voir dire. [223 Mich App 259-260.]

This Court issued three orders in Bass. First, we stayed its precedential effect. 455 Mich 851 (1997). Then we granted leave to appeal and continued the stay. 456 Mich 851 (1997). Finally, we vacated the grant order and denied leave to appeal.7 457 Mich 866 (1998). In that order, we stated:

Our order denying leave to appeal is based on the understanding that the Court of Appeals determined that the *79impediments of the court rule constitute state interference with appellate counsel's ability to provide effective assistance, People v Mitchell, 454 Mich 145, 154-155 [560 NW2d 600] (1997), and not on a finding that appellate counsel was ineffective for failing to comply with a minimum standard for assigned counsel as such a holding would be contrary to People v Reed, 449 Mich 375, 385-386 [535 NW2d 496] (1995). Therefore, the decision of the Court of Appeals insofar as it may be read to conclude that compliance with the minimum standards for assigned appellate counsel is constitutionally required is vacated. The stay of the precedential effect of the Court of Appeals opinion imposed by the orders [reported at 455 Mich 851 and 456 Mich 851] is vacated.

On the day of our third order in Bass, we set aside the July 1, 1994 changes in MCR 6.425(F)(2)(a)(i), 6.433(D), and 7.210(B)(1)(a). 457 Mich lxxxvii (1998). The rules thus require again that a full transcript be prepared for an indigent appellant in a criminal case.

m

As one can see from the language quoted above, ante, pp 77-78, the opinion of the Court of Appeals in Bass appears to have more than one basis. However, our eventual denial order effectively set aside any rationale other than “that the impediments of the court rule constitute state interference with appellate counsel’s ability to provide effective assistance.” 457 Mich 866. In that light, we consider whether the renewed requirement that an indigent defendant receive a transcript of the jury voir dire should be retroactive.8

*80On prior occasions, we have considered whether to give retroactive effect to a principle of law. For instance, in People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996),9 we embraced an earlier statement10 that “the general rule is that judicial decisions are to be given complete retroactive effect,” since “complete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law.” Thus our holding in Doyle was that a decision of this Court11 could be applied retroactively to conduct that took place before the release of the opinion in that case.

We undertook a detailed analysis of retroactivity principles earlier this year in People v Sexton, 458 Mich 43; 580 NW2d 404 (1998). Again faced with an issue whether a decision12 should be given retroactive application, we first confirmed that this Court had not based its decision on constitutional principles. 458 Mich 53-54. We then examined the retroactivity question in light of the three-part test stated in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971).

As we noted in Sexton, the three inquiries concern (a) the purpose of the new rule, (b) the general reliance on the old rule, and (c) the effect of retroactive application of the new rule on the administration of justice.

*81In the present case, (a) the purpose of the new rule is to protect a constitutional right,13 (b) there apparently has been widespread reliance on the 1994 rule amendments,14 and (c) full retroactive application, requiring supplemental proceedings in nearly all criminal appeals filed over a four-year period, would have a substantial effect on the administration of justice.

In light of those considerations, we are persuaded that the Court of Appeals decision in Bass, as clarified in our 1998 order (457 Mich 866), is to be given limited retroactive effect. Specifically, Bass and the court rule amendments apply to all cases in which a transcript is ordered on and after May 6, 1998 (the date of our Bass order and the order amending the court rules) and all cases in which a previously ordered transcript has not yet been filed by the court reporter. In cases in which a transcript was ordered before May 6, 1998, we further grant retroactive application with regard to defendants who preserved the issue by timely requesting a voir dire transcript or timely challenging the applicability, legality, or constitutionality of the 1994 court rule amendments.15

The defendant in the present case preserved the issue. He ordered the transcript before the effective *82date of the 1994 rule change, and then protested in writing when the jury voir dire was omitted. He subsequently argued the point in a motion for new trial in circuit court, and raised the issue in briefs to the Court of Appeals and this Court.

For these reasons, we remand this case to the circuit court for transcription of the jury voir dire. After the defendant receives a copy of that transcript, he may within twenty-eight days file in the Court of Appeals an appeal of right relating only to issues, if any, arising from the voir dire. In all other respects, leave to appeal is denied. MCR 7.302(F)(1).

Mallett, C.J., and Brickley, Cavanagh, Kelly, and Taylor, JJ., concurred.

MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). The initial charges also included two weapons offenses, which were dismissed at the preliminary examination.

The defendant has numerous prior convictions that are directly or indirectly related to his heroin usage. The information gave notice that he was subject to sentence enhancement under MCL 333.7413; MSA 14.15(7413), and a supplemental information alleged that he was an habitual offender. MCL 769.12; MSA 28.1084.

The order amended MCR 6.425(F)(2)(a)® and 7.210(B)(1)(a), and added MCR 6.433(D). 445 Mich cix (1994).

Unpublished opinion per curiam, issued October 29, 1996 (Docket No. 174643).

Order of the Supreme Court, entered September 30, 1997 (Docket No. 108016).

Administrative Order No. 1981-7, 412 Mich lxv, lxxxiv-xcii, and Administrative Order No. 1985-3, 421 Mich lxvii.

The third order also vacated the stay.

Purely procedural changes that result from amendments of the court rules are normally prospective from the effective date of the amendment. The rules at issue in the present case affect significant rights of an indi*80gent appellant, however, and so we consider the retroactivity question under principles employed in more substantive contexts.

Cert den 519 US 873 (1996).

Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986).

People v Bewersdorf 438 Mich 55; 475 NW2d 231 (1991), cert den sub nom Johnson v Michigan, 502 US 1111 (1992), reh den 503 US 999 (1992).

People v Bender, 452 Mich 594; 551 NW2d 71 (1996), reh den 453 Mich 1204 (1996).

We found that “the impediments of the court rule constitute state interference with appellate counsel’s ability to provide effective assistance.” 457 Mich 866. We caution, however, that we have simply found the “impediments of the court rule” to be a burden on the constitutional right of effective assistance of counsel — it does not necessarily follow that any particular individual has been deprived of effective assistance or that appellate proceedings conducted without a voir dire transcript are fundamentally flawed.

No one has suggested that the circuit court failed to implement fully the 1994 rule amendments.

We will not attempt today to list every procedural path by which the issue may be preserved.