Opinion
SC 162239 (15) (16) COA 354329
09-10-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL JAY JACKSON, Defendant-Appellant.
Kent CC: 05-009369-FC.
Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch, Justices
ORDER
Bridget M. McCormack, Chief Justice
On order of the Court, the application for leave to appeal the September 17, 2020 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The motions to remand are DENIED.
Welch, J. (concurring).
I agree that defendant is not entitled to relief under Subchapter 6.500 of the Michigan Court Rules. I write separately because defendant may be entitled to relief under MCR 6.428, as amended on January 1, 2021.
In 2006, defendant was convicted of several offenses related to a home invasion and sentenced to life imprisonment. The trial court denied defendant's request for appellate counsel, reasoning that defendant was not indigent because he had told the writer of the presentence investigation report that he was a recording artist who expected to make $4,500 to $8,000 per month from sales of his album. Defendant did not appeal that decision. He filed subsequent motions for appointment of appellate counsel, arguing that he had not, in fact, made any money from selling CDs. The trial court denied the motions.
In 2016, defendant filed a motion to reissue his judgment of sentence-and hence, restore his appeal of right. At that time, MCR 6.428 required a defendant to "demonstrate[e] that the attorney or attorneys retained or appointed to represent the defendant on direct appeal from the judgment either disregarded the defendant's instruction to perfect a timely appeal of right, or otherwise failed to provide effective assistance . . . ." The trial court denied defendant's motion to reissue the judgment, reasoning that his failure to perfect a direct appeal was not attributable to the ineffective assistance of appellate counsel. The trial court appointed appellate counsel to appeal that decision. The Court of Appeals affirmed. People v Jackson, unpublished per curiam opinion of the Court of Appeals, issued June 14, 2018 (Docket No. 336486).
In 2020, defendant filed the present motion under Subchapter 6.500 of the Michigan Court Rules, arguing that the denial of his motion to reissue the judgment was attributable to appellate counsel's failure to move for an evidentiary hearing or cite MCR 6.425(G), rather than MCR 6.428, as grounds for relief. I agree with the trial court, the Court of Appeals panel that denied leave, and the majority of this Court that neither of those factors were responsible for the failure of defendant's motion to reissue the judgment. MCR 6.428 was the applicable rule, and defendant was not entitled to relief under the language in effect at the time.
On January 1, 2021, MCR 6.428 was amended to read:
If the defendant, whether convicted by plea or at trial, was denied the right to appellate review or the appointment of appellate counsel due to errors by the defendant's prior attorney or the court, or other factors outside the defendant's control, the trial court shall issue an order restarting the time in which to file an appeal or request counsel.
I question whether, in 2006, the trial court had sufficient evidence to conclude that defendant was not indigent. Therefore, defendant may be able to invoke the amended court rule in a properly filed motion.