Opinion
363122
02-28-2023
People of Michigan v. Jeremiah Johnson
LC No. 09-026848-01-FC
Noah P. Hood Presiding Judge Michael J. Riordan Kristina Robinson Garrett 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, we peremptorily VACATE the Wayne Circuit Court's September 7, 2022 order and REMAND this matter to that court for further proceedings consistent with this order. By holding that defendant's failure to file a "motion to settle the record" pursuant to MCR 7.210(B)(2) necessarily precluded him from carrying his burden of establishing entitlement to relief from judgment, the trial court erred. MCR 7.210(B)(2) sets forth the procedure that should be followed "[i]f a criminal defendant discovers during the pendency of an appeal that a transcript is unavailable[.]" See People v Craig,__ Mich. App__,__;__ N.W.2d__ (Docket No. 357896); slip op at 5 (emphasis added). In these proceedings on collateral review, the trial court's analysis should instead have been guided by the relevant rules in MCR subchapter 6.500. See MCR 6.501. And under that subchapter, the trial court had discretion to permit the parties to expand the record, see MCR 6.507(A), or to grant defendant's request for an evidentiary hearing, see MCR 6.508(B). By failing to recognize as much, the trial court erred.
Under the circumstances presented here, the trial court also abused its discretion by denying defendant an evidentiary hearing to settle the record and a Ginther hearing concerning his several claims of ineffective assistance of trial and appellate counsel-all while simultaneously faulting defendant for failing to carry his burdens of production and persuasion in those respects. Although defendant has presented evidence suggesting that the trial court's entire file in this case, and all of the pertinent reporter's notes, are now missing, the existing appellate record suggests that defendant is correct that neither of the appellate attorneys who represented him on direct review ever attempted to order the transcript of the hearing at which defendant purportedly waived his jury-trial rights. Defendant has also presented affidavit testimony indicating that he did not, in fact, waive those rights at any time and that he informed his initial "court-appointed" appellate counsel, Lawrence J. Bunting, of that issue. Finally, defendant has presented the affidavit of his purported trial counsel, Raymond Burkett, in which Burkett avers that he never represented defendant at trial and, on the contrary, had "never held a bench trial before Judge Berry." (Emphasis added.) In light of such evidence, the trial court should have afforded defendant an evidentiary/Ginther hearing before ruling on the merits of the motion for relief from judgment. See People v Kimble, 470 Mich. 305, 314; 684 N.W.2d 669 (2004) (holding that ineffective assistance of appellate counsel can satisfy the "good cause" requirement under MCR 6.508(D)(3))); People v Cook, 285 Mich.App. 420, 427; 776 N.W.2d 164 (2009) ("a constitutionally invalid jury waiver is a structural error that requires reversal"); Strickland v Washington, 466 U.S. 668, 691; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984) ("Counsel's actions are usually based, quite properly, . . . on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.").
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
On remand, the trial court should appoint counsel to represent defendant in these proceedings, see MCR 6.505(A), and then afford defendant a joint evidentiary hearing to settle the record and Ginther hearing. The trial court should employ all proper means at its disposal to assist the parties in their efforts to obtain any missing portions of the record. Thereafter, the trial court should allow the parties an opportunity to file supplemental briefs concerning this matter. After doing so, the trial court should reconsider this matter in light of the evidence adduced on remand, the parties' supplemental briefs (if any), and this order.
In light of the foregoing, the motion to remand is DENIED as moot.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.