Opinion
366339
08-11-2023
People of Michigan v. Jamal Malcom Williams
LC No. 22-001349-01-FC
Thomas C. Cameron Presiding Judge Kirsten Frank Kelly Noah P. Hood Judges
ORDER
The motion to withdraw is DENIED without prejudice because counsel for defendant has failed to demonstrate that, after a "conscientious and thorough review of the trial court record," and appeal would be wholly frivolous. MCR 7.211(C)(5). While we find that there are no nonfrivolous issues to be raised arising from defendant's sentence, which was pursuant to a plea agreement for a specific sentence, see People v Billings, 283 Mich.App. 538, 550; 770 N.W.2d 893 (2009), citing People v Wiley, 472 Mich. 153, 154; 693 N.W.2d 800 (2005), we are unable to conclude that appellate counsel fully considered all potential issues arising from defendant's plea. Within 35 days of the Clerk's certification of this order, counsel may file a supplemental brief in support of the motion to withdraw, in which counsel shall discuss the issues arising from defendant's plea that he has considered, if counsel concluded that an appeal in this matter would be wholly frivolous. Without limiting the issues to be discussed, counsel is directed to address whether, with respect to the second-degree murder conviction, an adequate factual basis was established, particularly with respect to the elements of (1) a death, (2) which was caused by defendant. See People v Spears, ____ Mich.App. ____, _____; _____ N.W.2d _____ (April 20, 2023) (Docket No. 357848), slip op at 9-10; People v Fonville, 291 Mich.App. 363, 377; 804 N.W.2d 878 (2011). Alternatively, if counsel determines that an appeal would not be wholly frivolous, counsel shall file a brief in support of the application for leave to appeal within 35 days of the Clerk's certification of this order.
We note that, to the extent counsel has asserted that defendant only wishes to challenge his sentence on appeal and not his plea, the record is insufficient to establish that as being true. See US v Garcia, 483 F.3d 289 (CA 5, 2007) (denying an Anders motion where counsel claimed defendant did not want to challenge his plea on appeal but no record evidence demonstrated that was the case; such evidence could be in the form of (1) a response from the defendant to the Anders motion that did not address any errors in the plea proceeding; (2) a written statement from the defendant indicating that he did not want to challenge the plea; or (3) evidence that counsel gave a written recommendation that defendant not challenge the plea, and that defendant did not respond in a timely manner). See also US v Palmer, 600 F.3d 897, 899 (CA 7, 2010) (a defendant's failure to respond to an Anders motion asserting that the defendant only wished to challenge his sentence is insufficient to warrant granting the motion). If counsel files a supplemental brief in support of the motion to withdraw asserting that defendant does not wish to challenge his plea, that assertion must be supported by an adequate record before this Court may accept it as true.
We retain jurisdiction.