Opinion
366480
10-10-2023
People of Michigan v. Gregory Champ Rivers
LC No. 11-009553-01-FC
Christopher M. Murray Presiding Judge, Kirsten Frank Kelly, Noah P. Hood Judges
ORDER
Pursuant to MCR 7.205(E)(2), in lieu of granting leave to appeal, we REVERSE the Wayne Circuit Court's May 22, 2023 order and REMAND this matter to that court for entry of an order restoring defendant's appellate rights pursuant to MCR 6.428. As a result of an incorrect understanding of the relevant court rules, defendant's appointed appellate counsel did not assist him in timely seeking first-tier appellate review in this Court. Specifically, in correspondence to defendant dated June 20, 2012, counsel wrote: "Because I will not likely receive a transcript within 6 months after sentencing, you will probably lose your right to apply for leave to appeal[.]" But at that time, counsel still had nearly 1½ months to prepare and file an application for leave to pursue a delayed appeal on defendant's behalf. See MCR 7.205(A)(2)(a). And contrary to his assertions, counsel was not required to await preparation of the relevant transcripts before doing so. See MCR 7.205(B)(4) ("If the transcript is not yet available, . . . the appellant must file a copy of the certificate of the court reporter or recorder or a statement by the appellant's attorney as provided in MCR 7.204(C)(2). As soon as the transcript is available, the appellant must file it with the Court of Appeals."). Because counsel's deficient performance deprived his client of the opportunity to seek first-tier appellate review, defendant is entitled to relief under MCR 6.428. See also Roe v Flores-Ortega, 528 U.S. 470, 484; 120 S.Ct. 1029; 145 L.Ed.2d 985 (2000) ("when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal").
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.