Order Michigan Supreme Court
Lansing, Michigan
April 25, 2008 Clifford W. Taylor,
Chief Justice
134706 & (22) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
PEOPLE OF THE STATE OF MICHIGAN, Maura D. Corrigan
Plaintiff-Appellee, Robert P. Young, Jr.
SC: 134706 Stephen J. Markman,
Justices
v COA: 277280
Alcona CC: 05-000425-FC
THEODORE N. KINNISON,
Defendant-Appellant.
_________________________________________/
By order of December 20, 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 June 27, 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 consider whether either of
appellate counsel’s two stated reasons for failing to timely file defendant’s motion for
resentencing and his delayed application for leave to appeal entitled defendant to have his
April 10, 2007 application for leave to appeal considered under the standard applicable
for direct appeals. Defendant’s application should be considered under the standard for
direct appeals if the Court of Appeals concludes either that the delay was caused by a trial
court error and/or by counsel’s reasonable conclusions regarding the filing period, or
because counsel behaved unreasonably and, therefore, rendered ineffective assistance.
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).
We do not retain jurisdiction.
CAVANAGH and KELLY, JJ., would remand this case to the Court of Appeals for
reconsideration of the defendant's April 10, 2007 application for leave to appeal under the
standard applicable to direct appeals because they believe that the defendant was
deprived of his direct appeal as a result of constitutionally ineffective assistance of
counsel.
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.
April 25, 2008 _________________________________________
s0422 Clerk