Opinion
366111
11-01-2023
People of Michigan v. Larry Lanelle Emery
LC No. 2018-265727-FC
Sima G. Patel Presiding Judge Kathleen Jansen Colleen A. O'Brien Judges
ORDER
The motion to waive fees is GRANTED for this case only.
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the Court VACATES the April 17, 2023 order of the Oakland County Circuit Court and REMANDS for reconsideration of defendant's motion for the appointment of appellate counsel. The trial court erred by construing defendant's motion as a request under MCR 6.505(A) for legal assistance to pursue a motion for relief from judgment. Instead, relying on Roe v Flores-Ortega, 528 U.S. 470; 120 S.Ct. 1029; 145 L.Ed.2d 985 (2000) and Halbert v Michigan, 545 U.S. 605; 125 S.Ct. 2582; 162 L.Ed.2d 552 (2005), defendant argued that failings by his previous appellate attorneys deprived him of his right to apply for leave to appeal his plea-based convictions to this Court and that, in view of counsels' failings, he should be afforded an opportunity to apply for first-tier review with the assistance of counsel. Stated differently, defendant sought restoration of his appellate rights, and this motion was reviewable under MCR 6.428. See People v Tardy,_____ Mich. App_____;_____ N.W.2d (2023)_____ (Docket No. 360026); People v Byars,_____ Mich. App_____; _____N.W.2d_____ (2023) (Docket No. 357013). On remand, the trial court shall review defendant's motion under MCR 6.428 and make any factual findings necessary to determine whether defendant is entitled to restoration of his appellate rights. See People v Guile, 495 Mich. 888 (2013).
This order has immediate effect. MCR 7.215(F)(2).
The Court does not retain jurisdiction.