Opinion
SC: 165045 COA: 363001
03-10-2023
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tyrone KENNEDY, Defendant-Appellant.
Order
On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the September 27, 2022 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Cavanagh, J. (concurring).
I concur in the Court's denial order. I am not entirely persuaded that the Court of Appeals properly dismissed in part defendant's application for lack of jurisdiction. However, I recognize that the court rules are not entirely clear as to whether an order denying in part a defendant's motion for relief from judgment is reviewable in a later appeal of the order disposing of a defendant's remaining claims. Subchapter 6.500 does not explicitly address this situation, and MCR 7.202(6) does not appear to have a definition of " ‘final judgment’ or ‘final order’ " that applies in the context of a motion for relief from judgment. An amendment of the court rules may be warranted to clearly address this situation.
See People v Goecke , 457 Mich. 442, 457 n 12, 579 N.W.2d 868 (1998) (citing secondary sources indicating that "a final judgment or order ‘puts an end to a suit or action’ ") (citation omitted); People v Torres , 452 Mich. 43, 57 n 14, 549 N.W.2d 540 (1996) (explaining that " ‘[g]enerally, ... interlocutory orders leading up to the final judgment are reviewable on an appeal from that final judgment’ ") (citation omitted).
Until the court rules are amended to clearly address this situation, a defendant should not wait for a trial court to address all their claims before filing an application for leave to appeal and should appeal any order dismissing some of their claims within the time provided in MCR 6.509(A). Moreover, a defendant may ask the trial court to reissue a partial denial order so that they can file a timely application for leave to appeal. Cf. MCR 6.428 ; MCR 6.508(A) ("If the rules in this subchapter do not prescribe the applicable procedure, the court may proceed in any lawful manner. The court may apply the rules applicable to civil or criminal proceedings, as it deems appropriate."); People v Rice , unpublished order of the Court of Appeals, entered September 20, 2022 (Docket No. 361657) (denying leave to appeal after the trial court granted the defendant's request to reissue a partial denial order).
I write to emphasize that in resolving this defendant's appeal, the Court of Appeals should consider all the claims raised in defendant's motion for relief from judgment as necessary for reviewing the order before it. Specifically, defendant argued in the trial court that he was entitled to relief from judgment based on (1) a Brady violation, (2) ineffective assistance of counsel, and (3) newly discovered evidence. While only the order addressing defendant's claim of newly discovered evidence is currently before the Court of Appeals, defendant's other claims may be relevant to what evidence "would be admitted at retrial" and therefore whether the alleged newly discovered evidence entitles defendant to relief from judgment. People v Johnson , 502 Mich. 541, 571, 918 N.W.2d 676 (2018) (emphasis omitted); see also MCR 6.508(D)(2).
Brady v Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).