Opinion
00-07.
Decided March 28, 2000.
On order of the Court, the need for immediate action having been found, the notice requirements of MCR 1.201 are dispensed with and the following amendments of Rules 6.302, 6.425, and 6.615, and new Rule 6.625, of the Michigan Court Rules are adopted, to be effective as to pleas taken on or after April 1, 2000. These amendments will be considered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings.
[The present language is repealed and replaced by the following language unless otherwise indicated below.]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. ;
(5) any appeal from the conviction and sentence pursuant to the plea will be by application for leave to appeal and not by right; (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) ,
(c) the prosecuting attorney seeks leave to appeal, or (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.
With regard to paragraphs (6) and (7), the court is required to give only the advice that is applicable to the particular circumstances. (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;
(b) if the defendant is financially unable to retain a lawyer, the court must appoint defendant may request appointment of a lawyer to represent the defendant on appeal if (i) the defendant's sentence exceeds the upper limit of the minimum sentence range of the applicable sentencing guidelines,
(ii) the defendant seeks leave to appeal a conditional plea under MCR 6.301(C)(2) ,
(iii) the prosecuting attorney seeks leave to appeal, or (iv) the Court of Appeals or the Supreme Court grants the defendant's application for leave to appeal; (c) if 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: [i] the defendant seeks leave to appeal on the basis of an alleged improper scoring of an offense variable or a prior record variable,
[ii] the defendant objected to the scoring or otherwise preserved the matter for appeal, and [iii] the sentence constitutes an upward departure from the upper limit of the minimum sentence range that the defendant alleges should have been scored; and
(c d) the request for a lawyer must be made within 42 days after sentencing, unless the entitlement to counsel arises under (b)(iii) or (iv).
With regard to paragraphs (b) and (c), the court is required to give only the advice that is applicable to the particular circumstances. Upon sentencing, the court shall give the defendant a form developed by the State Court Administrative Office that the defendant may complete and file as an application for leave to appeal.
(3) The court also must give the defendant a request for counsel form containing an instruction informing the defendant that the form must be completed and returned to the court within 42 days after sentencing if the defendant wants the court to appoint a lawyer. The 42-day time limit does not apply if the entitlement to counsel arises under subrule (2)(b)(iii) or (iv).
(4) [Unchanged.]
(F) Appointment of Lawyer; Trial Court Responsibilities in Connection with Appeal.
(1) Appointment of Lawyer.
(a) — (b) [Unchanged.]
(c) In a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request if it is filed within 42 days after sentencing.
(c d) Scope of Appellate Lawyer's Responsibilities. The responsibilities of the appellate lawyer appointed to represent the defendant include representing the defendant
(i) — (iv) [Unchanged.]
(2) — (3) [Unchanged.]
Rule 6.615 Misdemeanor Traffic Cases
(A) — (D) [Unchanged.]
(E) Appeal. An appeal from a misdemeanor trial is governed by subchapter 7.100.
[The following language is adopted.]
Rule 6.625 Appeal; Appointment of Lawyer An appeal from a misdemeanor case is governed by subchapter 7.100. An indigent defendant who pleads guilty, guilty but mentally ill, or nolo contendere is entitled to the assistance of assigned appellate counsel at public expense if the prosecution seeks leave to appeal or the Court or Appeals or the Supreme Court grants the defendant's application for leave to appeal. Staff Comment: The March 28, 2000 amendment of Rules 6.302, 6.425, and 6.615, and the adoption of new Rule 6.625, were made in light of 1999 PA 200, MCL 770.3a; MSA 28.1100a, and were effective as to pleas taken on or after April 1, 2000.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
I concur in the Court's decision to dispense with the notice requirements of MCR 1.201 in amending Chapter 6 of the Michigan Court Rules. MCR 1.201(D) states: "The Court may modify or dispense with the notice requirements of this rule if it determines that there is a need for immediate action." A "need for immediate action" exists in this matter. The Legislature has enacted a statute requiring the appointment of appellate counsel in guilty plea cases in certain defined circumstances, permitting it in another, and otherwise providing that an indigent defendant waives any right to appointed appellate counsel if he chooses to plead guilty, guilty but mentally ill, or nolo contendere. 1999 PA 200, MCL 770.3a; MSA 28.1100a. This act takes effect on April 1, 2000. Our amendment of the court rules renders them consistent with the new statutory provisions by requiring trial courts to advise defendants of the extent to which they are entitled to counsel under the statute in guilty plea cases. We also delete MCR 6.425(F)(1)(c)'s requirement that trial courts "liberally grant" a request for appointed appellate counsel in guilty plea cases. This broad grant of authority is inconsistent with the new statutory provisions' limitation on the circumstances in which courts may appoint counsel.
The dissent asserts that we should not adopt these amendments because the new statute might be unconstitutional. The dissent notes a federal lawsuit challenging the constitutionality of 1999 PA 200.
Tesmer v. Granholm, No. 00-10082 (ED Mich, 2000) (seeking to enjoin 1999 PA 200 from taking effect on April 1, 2000).
Const. 1963, art 1, § 20 states, inter alia, that a defendant shall have the right "as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal." The dissent concedes that this provision vests authority in the Legislature to define the parameters of the right to appointed appellate counsel. Nonetheless, the dissent would disregard the wishes of the people as expressed through their elected representatives solely on the basis of speculation that a federal district court might find 1999 PA 200 unconstitutional. That act was validly enacted and, as the dissent concedes, is presumed constitutional unless and until it is declared otherwise.
This Court has consistently construed the phrase "provided by law" in other portions of our constitution as vesting authority to act in the Legislature. See, e.g., Buback v. Governor, 380 Mich. 209, 226 (1968).
The dissent also notes that we are presently considering whether appointed appellate counsel is constitutionally required in guilty plea cases in People v. Bulger, 459 Mich. 873 (1998) (granting leave), 461 Mich. 1204 (1999) (ordering the case to be resubmitted). The dissent suggests that our decision in Bulger would aid us in amending the court rules. This argument ignores the need for immediate action presented by the April 1, 2000, effective date of the statute. Additionally, the constitutionality of 1999 PA 200 is not before us in Bulger. The dissent apparently would use Bulger or our administrative rule-making process as a springboard to attack the constitutionality of 1999 PA 200 outside the context of a case or controversy.
Finally, the dissent notes that publishing the proposed amendments for comment would educate us about the action we take. This argument can always be made when we find a need for immediate action. By enacting MCR 1.201(D), however, this Court has recognized that the need for immediate action sometimes outweighs the benefits associated with the usual notice and comment period. In my judgment, these circumstances warrant immediate action under MCR 1.201(D).
I dissent. Generally, under the rules promulgated by this Court, before amending the Michigan Court Rules, this Court notifies the State Bar of Michigan of the proposed change, publishes the proposed amendment in the Michigan Bar Journal, and receives comments on the need for and the appropriateness of the proposed rule, or, it considers rule changes at public hearings held after a notice period, where the Court hears public comments. MCR 1.201; Administrative Order No. 1997-11. Instead of following the usual course, the Court today bolts to amend Chapter 6 of the Michigan Court Rules, claiming "a need for immediate action" on the basis of 1999 PA 200.
Considering all the circumstances surrounding the new enactment, however, it is clear that it would be far more judicious to employ the usual procedures before amending Chapter 6. First, although Michigan statutes are presumed constitutional, Caterpillar, Inc. v. Dep't of Treasury, 440 Mich. 400, 413 (1992), it is no secret that 1999 PA 200 is subject to serious constitutional challenge. Indeed, 1999 PA 200 is being challenged even now in federal district court. The federal district court's decision will determine the constitutionality of the exact statute upon which the majority relies as its "need" for immediate action. If the new enactment is held a constitutional violation by a federal court, then that decision will bear on the content of the Michigan Court Rules, because federal decisions are authoritative on federal constitutional questions. Cooper v. Aaron, 358 U.S. 1, 18 (1958). In that event, today's amendment of Chapter 6 will be shown to have been a wasted effort. Chapter 6 will have been amended for naught, only to require further amendment to again conform with the federal constitution.
Tesmer v. Granholm, No. 00-10082 (ED Mich, 2000) (seeking to enjoin 1999 PA 200 from taking effect on April 1, 2000).
Further, this Court has pending before it a related issue that could prove instructive for any amendment of Chapter 6. For the past two terms, this Court has considered whether counsel must be appointed for indigent defendants who apply for leave to appeal a guilty or nolo contendere plea. Whatever decision the Court reaches in that case, the complexities surrounding the decision could aid the Court in amending Chapter 6.
People v. Bulger, 459 Mich. 873 (1998) (granting leave), 461 Mich. 1204 (1999) (ordering the case to be resubmitted).
By employing the usual notice, publication, and comment practices for amending the court rules, this Court could be more educated about the action it takes. For example, during what would be the comment period, the federal district court may rule on the constitutionality of 1999 PA 200. Should that Court hold the new enactment a constitutional violation, waiting to amend the court rules would spare this Court the burden of setting in motion a second time the court rules amendment machinery. Instead, by rushing to amend the rules, this Court unnecessarily places itself in the position of making a rule that possibly will be a federal constitutional violation itself, that would then have to be amended once more to bring the rule into compliance with the federal constitution.
And if the federal district court did not rule during what would be the comment period, this Court would still be better educated about its decision if it employed the normal procedures. Allowing interested persons to comment on the rule could independently inform the Court of whether it should amend Chapter 6 now or wait for a final decision, either from the federal district court or from this Court, regarding the constitutionality of 1999 PA 200. Similarly, this Court may finally decide whether counsel was required in those cases that arose before the statute became effective, which, however the Court decides, could be instructive about whether counsel is required in the face of 1999 PA 200.
Taking the more cautious approach, and following this Court's usual procedures, has nothing to do with the statute's presumed constitutionality. Our state constitution provides that appealing defendants have counsel "as provided by law." Const. 1963, art 1, § 20. Thus, in providing counsel, courts are directed to follow the Legislature's directives, Buback v. Governor, 380 Mich. 209, 226 (1968), so unless 1999 PA 200 is stricken, courts will follow it regardless of whether this Court amends Chapter 6 now or after following the normal course for amending rules. Following those normal procedures, though, could save this Court from having to undo its present act if 1999 PA 200 is overturned by the federal courts.
KELLY, J., joins in the statement of Cavanagh, J.