Opinion
No. 116061.
October 12, 2000.
COA: 219032, Lenawee CC: 98-008172-FC
On order of the Court, the delayed application for leave to appeal from the November 17, 1999 decision of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I join in the order denying defendant's application for leave to appeal. Defendant pleaded guilty to armed robbery and the trial court subsequently imposed a sentence of ten to twenty years imprisonment. Defendant sought to challenge his sentence on the ground that the trial court sentenced him as a second-degree murderer. The trial court denied defendant's request for appointment of counsel on the ground that defendant's only issue lacked merit. Defendant then sought to obtain the transcript and other materials pursuant to MCR 6.433. After an exchange of letters between defendant and the circuit court clerk, defendant obtained some trial court materials but was apparently left without a copy of the sentencing transcript. Defendant's delayed application for leave to appeal in the Court of Appeals was denied for lack of merit in the grounds presented.
Justice Kelly would remand to the Court of Appeals for consideration as on leave granted because defendant lacks a copy of the sentencing transcript. In his application for leave to appeal before the Court of Appeals, defendant argued that the denial of appointed counsel violated his state and federal constitutional rights. In the course of making this argument, however, defendant never raised the issue of his failure to receive the sentencing transcript. That issue has been raised for the first time in defendant's application for leave to appeal in this Court. Because defendant made no argument regarding his failure to receive the sentencing transcript in the Court of Appeals, I cannot fault the Court of Appeals for failing to grant defendant's application on that basis.
As we stated in People v Bulger, 462 Mich. 495 (2000), an indigent criminal defendant has no state or federal constitutional entitlement to the appointment of counsel at public expense when applying for leave to appeal a plea-based conviction in Michigan. With respect a defendant's federal constitutional rights, our holding was based in part on the recognition that indigent guilty plea defendants in Michigan have meaningful access to the appellate system. Id. at 517-519. Quoting Ross v Moffitt, 417 U.S. 600, 616 (1974), Justice Kelly asserts that defendant has been denied "`an adequate opportunity to present his claims fairly in the context of the State's appellate process.'" I disagree. Defendant had an opportunity to direct the attention of the Court of Appeals to his troubles in obtaining a copy of the sentencing transcript, but he failed to do so. Had defendant argued to the Court of Appeals that he was unfairly prejudiced by the trial court's alleged failure to comply with MCR 6.433, he would have had an opportunity to obtain relief on that basis. On this record, it is clear that defendant was not denied meaningful access to the appellate system.
This case should be remanded to the Court of Appeals as on leave granted. Defendant did not receive a transcript of the plea proceedings, despite having made a written request as required by MCR 6.433(B)(1).
Defendant pleaded guilty to armed robbery. He then requested appointed counsel to pursue an appeal. The trial court denied the request.
He also requested a copy of the transcripts from the proceedings in the trial court. Despite several written requests, he never received them.
Access to a transcript of the plea proceeding is necessary to ensure meaningful review. As this Court noted in its recent opinion in People v Bulger, 462 Mich. 495, 517-518 (2000),
[A] pro se defendant seeking discretionary review will have the benefit of a transcript, trial counsel's framing of the issues in the motion to withdraw, and the trial court's ruling on the motion. As in Ross [ v Moffitt, 417 U.S. 600 (1974)], these factors will aid the defendant in identifying and asserting claims.
In Bulger, the majority concluded that indigent defendants pleading guilty do not need appointed counsel, as they already have meaningful access to Michigan's appellate courts. Bulger, supra at 521. This access, however, is premised on the availability of the tools mentioned in Bulger. Id. at 518.
Defendant alleges that he was sentenced as if he had committed second-degree murder instead of armed robbery. Without benefit of the sentencing proceeding transcript, he cannot substantiate his position on appeal. For this reason, defendant has been denied "an adequate opportunity to present his claims fairly in the context of the State's appellate process." Ross, supra at 616.
The concurrence points out that defendant failed to raise the issue in his application to the Court of Appeals. Defendant, untrained in law, may have been unaware of the consequences of failing to raise it. If so, this case illustrates why indigent defendants need the assistance of appointed appellate counsel, even when they have pleaded guilty. There is a distinct possibility that defendant was wrongly sentenced in this case. He is being denied a reasonable hearing because, lacking legal counsel, he did not follow the procedural requirements of appellate review.
Accordingly, I would remand this case to the Court of Appeals with instructions that a panel review it once defendant has had the opportunity to formulate his argument using the transcripts.
Cavanagh, J., joins in the statement of Kelly, J.