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July 30, 2014

MSC gives defendant opportunity to appeal where past untimeliness was the fault of trial court and/or appellate counsel

In People v. Anthony, Case No. 148687, the Michigan Supreme Court considered the application for leave to appeal the Court of Appeals’ December 17, 2013 order, and in lieu of granting leave to appeal, remanded the case to the Macomb Circuit Court for further proceedings.  The Court of Appeals denied the defendant’s leave to appeal for lack of merit on the ground presented.  Dissenting Court of Appeals Judge Gleicher would have remanded for reissuance of the judgment of sentence and for reconsideration of the defendant’s motion to withdraw his plea as timely filed.  The Supreme Court concluded that the defendant, through no fault of his own, was deprived of the opportunity to have appointed appellate counsel file a timely motion to withdraw the plea and application for leave to appeal, due to: the trial court’s failure to timely respond to the defendant’s March 3, 2012 request for counsel pursuant to MCR 6.425(G)(1)(a); clerical errors in the April 24, 2012 order appointing appellate counsel; and/or appellate counsel’s oversights. See Halbert v. Michigan, 545 U.S. 605 (2005); Roe v Flores-Ortega, 528 U.S. 470, 477 (2000); and Peguero v. United States, 526 U.S. 23, 28 (1999).
The Michigan Supreme Court specified that appointed counsel may file an application for leave to appeal the defendant’s January 5, 2012 plea-based conviction to the Court of Appeals, as well as any necessary or appropriate post-conviction motions in the trial court, within six months.  If a post-conviction motion is filed in the trial court, counsel may file an application for leave to appeal to the Court of Appeals within six months of the order disposing of that motion.  The Supreme Court did not retain jurisdiction.

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