1.4Appointment of Appellate Lawyer
After imposing a sentence in a case involving a conviction following a trial, the trial court must immediately inform the defendant on the record that the defendant is entitled to appellate review of the conviction and sentence and that a lawyer will be appointed if the defendant cannot afford one. MCR 6.425(F)(1)(a)-(b). The defendant must file the request for a lawyer within 42 days after entry of the judgment of sentence if the defendant wants to appeal by right. MCR 6.425(F)(1)(c). Similarly, in a case involving a conviction following a plea of guilty or nolo contendere, the trial court must inform the defendant immediately after sentencing that he or she is entitled to file an application for leave to appeal and that a lawyer will be appointed if the defendant cannot afford one. MCR 6.425(F)(2)(a)-(b).1 “The defendant must file the request for a lawyer within 6 months after the entry of the judgment of sentence.” MCR 6.425(F)(2)(c).2 “The court also must give the defendant a request for counsel form containing the applicable instructions and deadlines under this rule.” MCR 6.425(F)(3). “The court must give the defendant an opportunity to tender a completed request for counsel form at sentencing if the defendant wishes to do so.” Id.
“A request for counsel must be deemed filed on the date on which it is received by the court or the Michigan Appellate Assigned Counsel System (MAACS), whichever is earlier.” MCR 6.425(F)(4).
If an out-of-guidelines sentence is imposed, the court must advise the defendant that an appeal can be pursued on the grounds that the sentence “is longer or more severe than the range provided by the sentencing guidelines.” MCR 6.425(F)(5). See also MCL 769.34(7) (“If the trial court imposes on a defendant a minimum sentence that is longer or more severe than the appropriate sentence range, as part of the court's advice of the defendant’s rights concerning appeal, the court shall advise the defendant orally and in writing that he or she may appeal the sentence as provided by law on grounds that it is longer or more severe than the appropriate sentence range.”).3
Requirements in district court proceedings. “Immediately after imposing a sentence of incarceration, even if suspended, the court must advise the defendant, on the record or in writing, that:
(a) if the defendant wishes to file an appeal and is financially unable to retain a lawyer, the local indigent criminal defense system’s appointing authority will appoint a lawyer to represent the defendant on appeal, and
(b) the request for a lawyer must be made within 14 days after sentencing.” MCR 6.610(G)(4).
MCR 6.425(G)(1) governs the appointment of an appellate lawyer and the preparation of transcripts in felony cases, and provides:
“(a) All requests for the appointment of appellate counsel must be granted or denied on forms approved by the State Court Administrative Office and provided by MAACS.[4]
(b) Within 7 days after receiving a defendant’s request for a lawyer, or within 7 days after the disposition of a postjudgment motion if one is filed, the trial court must submit the request, the judgment of sentence, the register of actions, and any additional requested information to MAACS under procedures approved by the Appellate Defender Commission for the preparation of an appropriate order granting or denying the request. The court must notify MAACS if it intends to deny the request for counsel.
(c) Within 7 days after receiving a request and related information from the trial court, MAACS must provide the court with a proposed order appointing appellate counsel or denying the appointment of appellate counsel. A proposed appointment order must name the State Appellate Defender Office (SADO) or an approved private attorney who is willing to accept an appointment for the appeal.
(d) Within 7 days after receiving a proposed order from MAACS, the trial court must rule on the request for a lawyer. If the defendant is indigent, the court must enter an order appointing a lawyer if the request for a lawyer is filed within 6 months after entry of the judgment of sentence or, if applicable, within the time for filing an appeal of right. An order denying a request for the appointment of appellate counsel must include a statement of reasons and must inform the defendant that the order denying the request may be appealed by filing an application for leave to appeal in the Court of Appeals in accordance with MCR 7.205.
(e) In a case involving a conviction following a trial, if the defendant’s request for a lawyer was filed within the time for filing a claim of appeal, the order must be entered on an approved form entitled ‘Claim of Appeal and Appointment of Counsel.’[5] Entry of the order by the trial court pursuant to this subrule constitutes a timely filed claim of appeal for the purposes of MCR 7.204.
(f) An appointment order must direct the court reporter to prepare and file, within the time limits specified in MCR 7.210, the full transcript of all proceedings, and provide for the payment of the reporter’s fees.
(g) The trial court must serve MAACS with a copy of its order granting or denying a request for a lawyer. Unless MAACS has agreed to provide the order to any of the following, the trial court must also serve a copy of its order on the defendant, defense counsel, the prosecutor, and, if the order includes transcripts, the court reporter(s)/recorder(s). If the order is in the form of a Claim of Appeal and Appointment of Counsel, the court must also serve the Court of Appeals with a copy of the order and the judgment being appealed.”
MCR 6.625 governs appeals and the appointment of appellate counsel in district court cases6 and provides:
“(A) An appeal from a misdemeanor case is governed by subchapter 7.100.
(B) If the court imposed a sentence of incarceration, even if suspended, and the defendant is indigent, the local indigent criminal defense system’s appointing authority must appoint a lawyer if, within 14 days after sentencing, the defendant files a request for a lawyer or makes a request on the record. If the defendant makes a request on the record, the court shall inform the appointing authority of the request that same day. Unless there is a postjudgment motion pending, the appointing authority must act on a defendant’s request for a lawyer within 14 days after receiving it. If there is a postjudgment motion pending, the appointing authority must act on the request after the court’s disposition of the pending motion and within 14 days after that disposition. If a lawyer is appointed, the 21 days for taking an appeal pursuant to MCR 7.104(A)(3) and MCR 7.105(A)(3) shall commence on the day of the appointment.
(C) If indigency was not previously determined or there is a request for a redetermination of indigency, the court shall make an indigency determination unless the court’s local funding unit has designated this duty to its appointing authority in its compliance plan with the Michigan Indigent Defense Commission. The determination of indigency and, if indigency is found, the appointment of counsel must occur with[in] 14 days of the request unless a postjudgment motion is pending. If there is a postjudgment motion pending, the appointing authority must act on the request after the court’s disposition of the pending motion and within 14 days after that disposition.
(D) If a lawyer is appointed, the 21 days for taking an appeal pursuant to MCR 7.104(A)(3) and MCR 7.105(A)(3) shall commence on the day the notice of appointment is filled with the court.”
C.Scope of Appellate Lawyer’s Responsibilities
“The responsibilities of the appellate lawyer appointed to represent the defendant include representing the defendant
(a) in available postconviction proceedings in the trial court the lawyer deems appropriate,
(b) in postconviction proceedings in the Court of Appeals,
(c) in available proceedings in the trial court the lawyer deems appropriate under MCR 7.208(B) or [MCR] 7.211(C)(1), and
(d) as appellee in relation to any postconviction appeal taken by the prosecutor.” MCR 6.425(G)(2).
1 See the Michigan Judicial Institute’s Criminal Proceedings Benchbook Vol. 1, Chapter 6 for a discussion of guilty plea appeals.
2 “A request for counsel must be deemed filed on the date on which it is received by the court or the Michigan Appellate Assigned Counsel System (MAACS), whichever is earlier.” MCR 6.425(F)(4).
3 Both MCR 6.425 and MCL 769.34 have been amended since the Supreme Court “[struck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3).” People v Lockridge, 498 Mich 358, 391 (2015). However, the text of the specific subrule and subsection of MCR 6.425(F)(5) and MCL 769.34(7) has not been affected by the respective amendments to the court rule and statute. MCL 769.34 was amended to omit language referring to substantial and compelling reasons and to explicitly provide for reasonable departures. See 2020 PA 395, effective March 24, 2021. Accordingly, it is not clear whether the requirement regarding departure sentences in either provision is still relevant. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 1, for a detailed discussion of Lockridge.
4 MAACS is an acronym for the Michigan Appellate Assigned Counsel System.
5 See SCAO Form CC 403.
6 For information on appeals from district court to circuit court, see the Michigan Judicial Institute’s Appeals & Opinions Benchbook.