Opinion
No. 114028.
December 14, 1999.
On order of the Court, the delayed application for leave to appeal from the December 11, 1998 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 leave to appeal. Defendant had six appointed attorneys in this matter. He essentially argues that he should have been allowed to start the appellate process anew with the appointment of each new attorney. I reject this assertion. Instead, our Court Rules contemplate that substitute counsel takes the case as counsel finds it. A defendant is permitted to file "a brief" with the Court of Appeals. MCR 7.212 (A)(1). Because defendant's second appellate attorney filed a brief, his subsequent attorneys were not automatically entitled to file new briefs upon appointment. In the end, defendant's procedural difficulties in this case are of his own making. They are not justly attributable to the trial court or Court of Appeals.
Appellant seeks leave to appeal on the basis that the Court of Appeals wrongly denied him an appeal. He asserts that the trial-level court made procedural errors that caused him to lose his right to be heard in the Court of Appeals. Specifically, it failed to notify the Court of Appeals that appellant had a new attorney. Consequently, that attorney did not receive timely notice that appellant's case was to be heard and when. Also, the Court of Appeals refused to allow appellant to file a substitute brief, denying him review of one of his issues. It appears that appellant was a difficult client and caused attorney turnover which resulted in confusion in the courts below. Nonetheless, the procedural errors that occurred here are attributable to the courts, and they significantly prejudiced appellant's rights to meaningful appellate review and the effective assistance of counsel. For those reasons, I would remand this case to the Court of Appeals as on leave granted.
Cavanagh, J., joins in the statement of Justice Kelly.
Court of Appeals No. 188688.