Opinion
01-24.
October 4, 2001.
On order of the Court, this is to advise that the Court is considering amendments of Rules 6.302 and 6.425 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal. The Court welcomes the views of all who wish to address the proposal or to suggest alternatives. Before adoption or rejection, the proposal will be considered at a public hearing by the Court. Notice of future public hearings will be provided by the Clerk of the Court and posted at the Court's website, www.supremecourt.state.mi.us.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language would be amended as indicated below.]
Rule 6.302 Pleas of Guilty and Nolo Contendere
(A) [Unchanged.]
(B) An Understanding Plea. Speaking directly to the defendant, the court must advise the defendant and determine that the defendant understands:
(1) — (3) [Unchanged.]
(4) if the plea is accepted, the defendant will be giving up any claim that the plea was the result of promises or threats that were not disclosed to the court at the plea proceeding, or that it was not the defendant's own choice to enter the plea; and
(5) any appeal from the conviction and sentence pursuant to the plea will be by application for leave to appeal and not by right;, and if the plea is accepted by the court, the defendant waives the right to have an attorney appointed at public expense to assist in filing an application for leave to appeal or to assist with other postconviction remedies.
(6) if the plea is accepted and the defendant is financially unable to retain a lawyer, the court must appoint a lawyer to represent the defendant on appeal if
(a) the defendant's sentence exceeds the upper limit of the minimum sentence range of the applicable sentencing guidelines,
(b) the defendant seeks leave to appeal a conditional plea under MCR 6.301(C)(2),
(d) the Court of Appeals or the Supreme Court grants the defendant's application for leave to appeal; and
(7) if the plea is accepted and the defendant is financially unable to retain a lawyer, the court, in its discretion, may appoint a lawyer to represent the defendant on appeal if all the following apply:
(a) the defendant seeks leave to appeal on the basis of an alleged improper scoring of an offense variable or a prior record variable,
(b) the defendant objected to the scoring or otherwise preserved the matter for appeal, and
(c) the sentence constitutes an upward departure from the upper limit of the minimum sentence range that the defendant alleges should have been scored.
(C) — (F) [Unchanged.]
Rule 6.425 Sentencing; Appointment of Appellate Counsel
(A) — (D) [Unchanged.]
(E) Advice Concerning the Right to Appeal; Appointment of Counsel.
(1) [Unchanged.]
(2) In a case involving a conviction following a plea of guilty or nolo contendere, immediately after imposing sentence, the court must advise the defendant, on the record, that
(a) the defendant is entitled to file an application for leave to appeal , however, the defendant is not entitled to have an attorney appointed at public expense to assist in filing an application for leave to appeal or to assist with other postconviction remedies;
(b) — (d) and final two paragraphs of (2) [Unchanged.]
(3) — (4) [Unchanged.]
(F) [Unchanged.]
Staff Comment: The proposed amendments of Rules 6.302 and 6.425 have been recommended by the Michigan Judges Association to better reflect the statutory changes affecting the entitlement to appointed appellate counsel in plea cases. The language that would be deleted from subrules 6.302(B)(6) and (7) also appears in subrule 6.425(E)(2)(b) and (c), which would not be altered.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court. _____________________________________________
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in the present form. Timely comments will be considered and are appreciated by the Court. _____________________________________________
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court clerk in writing or electronically by January 1, 2002. P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@jud.state.mi.us. When filing a comment, please refer to file 01-24.