Opinion
367390
02-05-2024
PEOPLE OF MICHIGAN v. DERRICK DEVON COLEMAN
LC No. 2016-261094-FC
Douglas B. Shapiro Presiding Judge, Jane E. Markey, Christopher P. Yates Judges
ORDER
Douglas B. Shapiro Presiding Judge
The motion to hold the delayed application in abeyance is DENIED.
Pursuant to MCR 7.205(E)(2), in lieu of granting the delayed application for leave to appeal, the Court VACATES the March 28, 2023 order of the Oakland County Circuit Court in part and REMANDS for reconsideration of defendant's motion for relief from judgment insofar as defendant argues that defense counsel provided ineffective assistance by failing to object when defendant was sentenced on eight counts of armed robbery when defendant only pleaded guilty to six counts of armed robbery. The trial court clearly erred by concluding that the January 12, 2017 plea transcript provided a factual basis for eight counts of armed robbery. Instead, the record shows that, although defendant was originally charged with eight counts of armed robbery, two of those counts were dismissed at the preliminary examination, and defendant ultimately pleaded guilty to only six counts of armed robbery. On remand the trial court shall address whether defendant met his burden under MCR 6.508(D) of establishing (1) good cause for failing to raise this issue on direct appeal, including whether appellate counsel was ineffective for failing to apply for leave to appeal to raise this issue, and (2) actual prejudice. See People v Johnson, 503 Mich. 1035 (2019). If defendant satisfies MCR 6.508(D), the trial court shall address defendant's arguments regarding the appropriate remedy. In all other respects, leave to appeal is DENIED because defendant has otherwise failed to establish that the trial court erred in denying his motion for relief from judgment.
This order has immediate effect. MCR 7.215(F)(2).
The Court does not retain jurisdiction.