Opinion
363433
01-04-2023
People of Michigan v. Jeffrey Paul Reiher
LC No. 17-006034-01-FC
Noah P. Hood Presiding Judge, Christopher M. Murray, Michael J. Riordan Judges
ORDER
The motion to waive fees is GRANTED for this case only.
The motion to hold this matter in abeyance is DENIED as moot, given that this Court has already dismissed the related complaint for superintending control in Docket No. 361995, In re Reiher.
Pursuant to MCR 7.205(E)(2), in lieu of granting leave to appeal, we VACATE the Wayne Circuit Court's April 29, 2022 order denying defendant's motion for relief from judgment and REMAND this matter to that court for further proceedings consistent with this order. The fundamental purpose of a Ginther hearing is to produce an "augmented . . . record" concerning counsel's performance when the existing record is insufficient to review a claim of ineffective assistance of counsel. See People v Randolph, 502 Mich. 1, 15; 917 N.W.2d 249 (2018). Here, the circuit court failed to rule on the motion for a Ginther hearing at all, and then nevertheless held that defendant had failed to carry his burden of supporting the claims of ineffective assistance of counsel in his motion for relief from judgment. "[F]ailure to exercise discretion when called on to do so constitutes an abdication and hence an abuse of discretion." People v Stafford, 434 Mich. 125, 134 n 4; 450 N.W.2d 559 (1990). On remand, the circuit court should adjudicate the Ginther motion either before ruling on the motion for relief from judgment or contemporaneously.
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.