Opinion
368008
03-01-2024
PEOPLE OF MICHIGAN v. DONALD JARELL ROBINSON
LC No. 2017-002729-FC
Stephen L. Borrello Presiding Judge Mark J. Cavanagh Kirsten Frank Kelly 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 delayed application for leave to appeal, the Court VACATES the October 2, 2023 order of the Macomb County Circuit Court and REMANDS to the trial court to address whether appellate counsel provided ineffective assistance during defendant's direct appeal by failing to challenge trial counsel's effectiveness with regard to defendant's potential alibi and other purportedly exculpatory evidence. The trial court erred by concluding that defendant was not entitled to relief from judgment simply because defendant failed (1) to personally raise his alibi at trial by, for example, testifying and (2) to personally pursue his own ineffective-assistance claim on direct appeal in his Standard 4 brief. Defendant was represented by counsel at trial and on direct appeal, meaning that he may challenge the effectiveness of trial counsel notwithstanding his decision not to testify and that his filing of a Standard 4 brief on direct appeal does not per se preclude defendant from challenging the effectiveness of his appellate counsel. See People v Good (On Reconsideration), ___Mich App___,___;___N.W.2d(2023) (Docket No. 349268); slip op at 4-5. Ineffective assistance of appellate counsel can provide good cause for failing to raise an issue on direct appeal. People v Gardner, 482 Mich. 41, 50 n 11; 753 N.W.2d 78 (2008). On remand, the trial court shall address defendant's argument regarding appellate counsel's ineffectiveness on direct appeal, including appellate counsel's failure to challenge trial counsel's effectiveness, to determine whether defendant can establish good cause and otherwise satisfy MCR 6.508(D). See People v Johnson, 503 Mich. 1035 (2019).
This order has immediate effect. MCR 7.215(F)(2).
The Court does not retain jurisdiction.