Opinion
ADM File No. 2000-32.
June 22, 2004.
On order of the Court, this is to advise that the Court is considering the adoption of revised minimum standards for indigent criminal appellate defense services. The revised standards would replace those adopted in Administrative Order No. 1981-7. Proposed revisions were submitted by the Appellate Defender Commission pursuant to 1978 PA 620, MCL 780.711— 780.719. The language of the standards set forth below is based on the Commission's submissions with some revisions. Standard 4 has two proposed alternatives.
Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered by the Court at a public hearing. The notices and agendas for public hearings are posted at www.courts.mi.gov/supremecourt. Publication of this proposal does not mean that the Court will issue an administrative order on the subject, nor does it imply probable adoption of the proposal in its present form.
PREAMBLE:
The Michigan Legislature in MCL 780.712(5) requires the Appellate Defender Commission to develop minimum standards to which all criminal appellate defense services shall conform. Pursuant to this mandate, these standards are intended to serve as guidelines to help counsel achieve the goal of effective appellate and postjudgment representation. Criminal appellants are not constitutionally entitled to counsel's adherence to these guidelines. Hence, counsel's failure to comply with any standard does not of itself constitute grounds for either a claim of ineffective assistance of counsel or a violation of the Michigan Rules of Professional Conduct, and no failure to comply with one or more of these standards shall, unless it is independently a violation of a rule of professional conduct, serve as the basis for a request for investigation with the Attorney Grievance Commission.
Standard 1
Counsel shall promptly examine the trial court record and register of actions to determine the proceedings, in addition to trial, plea, and sentencing, for which transcripts or other documentation may be useful or necessary, and, in consultation with the defendant and, if possible, trial counsel, determine whether any relevant proceedings have been omitted from the register of actions, following which counsel shall request preparation and filing of such additional pertinent transcripts and review all transcripts and lower court records relevant to the appeal. This standard is to be read in conjunction with MCR 7.210(B), which requires an appellant to order the full transcript of testimony and other proceedings in the trial court or tribunal unless the appellant files a motion in the trial court to order less than the full transcript or the parties stipulate that some portion less than the full transcript be filed.
Standard 2
Before filing the initial postconviction or appellate motion or brief and after reviewing the relevant transcripts and lower court records, counsel must consult with the defendant about the proposed issues to be raised on appeal and advise of any foreseeable benefits or risks in pursuing the appeal generally or any particular issue specifically. At counsel's discretion, such confidential consultation may occur during an interview with the defendant in person or through an attorney agent, by a comparable video alternative, or by such other reasonable means as counsel deems sufficient, in light of all the circumstances.
Standard 3
Counsel should raise those issues, recognizable by a practitioner familiar with criminal law and procedures on a current basis and who engages in diligent legal research, which offer reasonable prospects of meaningful postconviction or appellate relief, in a form that protects where possible the defendant's option to pursue collateral attacks in state or federal courts. If a potentially meritorious issue involves a matter not reflected in the trial court record, counsel should move for and conduct such evidentiary hearings as may be required.
Standard 4
Alternative A
When a defendant insists that a particular claim be raised on appeal against the advice of counsel, counsel shall inform the defendant of the right to present that claim in propria persona. Counsel shall also provide such procedural advice and clerical assistance as may be required to conform the defendant's pleadings for acceptability to the court. The defendant's brief in propria persona shall be filed with the Court of Appeals within 84 days after the appellant's brief is filed by the attorney. Counsel shall provide such procedural advice and clerical assistance as may be required to conform the defendant's pleadings for acceptability to the court. This time may be extended only by the Court of Appeals on motion, upon a showing of good cause for the failure to file defendant's pleading within the 84-day deadline.
Standard 4
Alternative B
When a defendant insists that a particular claim be raised on appeal against the advice of counsel, counsel shall inform the defendant of the right to present that claim in propria persona. The defendant shall file his or her brief in propria persona directly with the Court of Appeals no later than 84 days after the filing of appellant's brief by counsel. The Court of Appeals will not accept a brief filed after this deadline and will not entertain motions to extend the time for filing the brief. Counsel is not obligated to provide procedural advice or clerical assistance, but if counsel chooses to do so, this circumstance does not extend the time for filing the brief.
Standard 5
An appeal may never be abandoned by counsel; an appeal may be dismissed on the basis of the defendant's informed consent, or counsel may seek withdrawal pursuant to Anders v. California, 386 U.S. 738; 87 S.Ct. 1396; 18 L.Ed.2d 493 (1967), and related constitutional principles.
Standard 6
Counsel should timely file the appellant's brief, and in an appropriate case, counsel should request oral argument.
Standard 7
Counsel must keep the defendant apprised of the status of the appeal and promptly forward copies of pleadings filed and opinions or orders issued by a court.
Standard 8
Upon final disposition of the case by the court, counsel shall promptly and accurately inform the defendant of the courses of action that may be pursued as a result of that disposition, and the scope of any further representation counsel may provide. If counsel's representation terminates, counsel shall cooperate promptly and fully with the defendant and any successor counsel in the transmission of records and information.
Standard 9
Upon acceptance of the assignment, counsel is prohibited from seeking or accepting fees from the defendant or any other source beyond those authorized by the appointing authority. Staff Comment: The Appellate Defender Commission has submitted proposed revised standards for indigent criminal appellate defense services. The standards would replace those adopted in Administrative Order No. 1981-7. The Commission's original proposal with commentary is posted on the Court's website at: http://courts.michigan.gov/supremecourt/Resources/Administrative/index.htm. The Court made a number of adjustments to the original proposal.
Standard 1 corresponds with former Standard 6 regarding counsel's obligation to review the lower court records and promptly request and review the transcripts. Standard 1 would state that it is to be read in conjunction with MCR 7.210(B), which requires counsel to order the full transcript of trial court proceedings, absent a stipulation or motion to order less than the full transcript.
Standard 2 corresponds to former Standards 3 and 4, which relate to counsel's obligation to consult with the client about the appellate issues and any foreseeable risks or benefits in pursuing the appeal. This standard does not mandate a personal meeting with the defendant as did former Standard 3. Standard 2 also clarifies that counsel should warn defendant not only of the risks and benefits of pursuing the appeal, but also the risks and benefits of pursuing a particular issue.
Standard 3 corresponds to former Standard 9 regarding counsel's duties to raise issues that offer reasonable prospects of meaningful postconviction relief. Standard 2 also corresponds to former Standard 8 regarding counsel's obligation to move for and conduct any necessary evidentiary hearings.
Standard 4 corresponds with former Standard 11 regarding briefs filed by defendants in propria persona. The Court is publishing two alternative versions of this standard. Both versions set a deadline for the filing of such briefs of 84 days from the date that the attorney files the appellant's brief. Alternative A requires appellate counsel to provide the defendant with clerical assistance in filing the brief in propria persona and allows extensions of this deadline only upon a showing of good cause for the failure to file defendant's brief within the 84-day deadline.
Alternative B, on other hand, relieves counsel of the burden of providing the defendant with assistance in filing the brief in propria persona by directing the defendant to file the pleading directly with the Court of Appeals. This alternative also eliminates any ability to obtain an extension of time for filing the defendant's brief in propria persona. Should counsel choose to provide the defendant with clerical assistance in filing the brief, he or she must file the brief within the 84-day limit as there is no ability for either counsel or the defendant to obtain an extension of time.
Standard 5 replaces former Standard 12 regarding dismissal of the appeal. It deletes the requirement for written consent and allows counsel to dismiss the appeal on the basis of the defendant's "informed consent." It also allows counsel to withdraw where, in counsel's opinion, there are no meritorious appellate issues.
Standard 6 incorporates the principles articulated in former Standards 15 and 16 relating to counsel's obligation to timely file the defendant's pleadings and request and present an oral argument on the defendant's behalf. This standard clarifies that counsel should timely file the brief. It also states that in an appropriate case, counsel should request oral argument.
Standard 7 is a more concise version of former Standard 17, but its provisions are essentially identical. Like its predecessor, Standard 7 requires counsel to keep the defendant apprised of the appeal and send the defendant copies of pleadings and court orders or opinions.
Standard 8 incorporates the requirements of former Standards 18 and 19. It states that upon the court's final disposition of the case, counsel shall promptly and accurately inform the defendant of the courses of action that may be pursued and the scope of any further representation counsel may provide. If the action terminates counsel's representation, counsel shall cooperate fully with the defendant or successor counsel in the transmission of records and information.
Standard 9 corresponds with former Standard 20. Both prohibit appointed counsel from seeking or accepting fees from the defendant or any other source beyond those authorized by the appointing authority.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by October 1, 2004, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2000-32. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.