“Appeals from decisions under [MCR 6.500 et seq.] are by application for leave to appeal to the Court of Appeals pursuant to MCR 7.205(A)(1).” MCR 6.509(A). “The 6-month time limit provided by MCR 7.205(A)(4)(a), runs from the decision under [MCR 6.500 et seq].” MCR 6.509(A). “The rule does not limit the availability of an appeal to a defendant.” People v Reed, 198 Mich App 639, 644 (1993). “Thus, [the Court of Appeals] has jurisdiction to review [a] trial court’s order granting [a] defendant relief from judgment.” Id. “Nothing in [MCR 6.500 et seq.] shall be construed as extending the time to appeal from the original judgment.” MCR 6.509(A).
B.Responsibility of Appointed Counsel
“If the trial court has appointed counsel for the defendant during the proceeding, that appointment authorizes the attorney to represent the defendant in connection with an application for leave to appeal to the Court of Appeals.” MCR 6.509(B). See also MCR 6.425 (governing the appointment of appellate counsel).1
C.Responsibility of the Prosecutor
“If the prosecutor has not filed a response to the defendant’s application for leave to appeal in the appellate court, the prosecutor must file an appellee’s brief if the appellate court grants the defendant’s application for leave to appeal.” MCR 6.509(C). “The prosecutor must file an appellee’s brief within 56 days after an order directing a response pursuant to [MCR 6.509(D)].” MCR 6.509(C).
D.Responsibility of the Appellate Court
“If the appellate court grants the defendant’s application for leave to appeal and the prosecutor has not filed a response in the appellate court, the appellate court must direct the prosecutor to file an appellee’s brief, and give the prosecutor the opportunity to file an appellee’s brief pursuant to [MCR 6.509(C)], before granting further relief to the defendant.” MCR 6.509(D).
E.Ineffective Assistance of Counsel
“[W]hen an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed ‘with no further showing from the defendant of the merits of his underlying claims.’” Garza v Idaho, 586 US ___, ___ (2019), quoting Roe v Flores-Ortega, 528 US 470, 484 (2000). This presumption of prejudice “applies even when the defendant has, in the course of pleading guilty, signed what is often called an ‘appeal waiver’—that is, an agreement forgoing certain, but not all, possible appellate claims.” Garza, ___ US at ___ (noting that “even the broadest appeal waiver does not deprive a defendant of all appellate claims”). In Garza, although the defendant’s plea agreements included an appeal waiver, his “attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions” to do so. Id. at ___. “[S]imply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope. And in any event, the bare decision whether to appeal is ultimately the defendant’s, not counsel’s, to make.” Id. at ___.
“[A]ppellate counsel’s failure to raise an Alleyne[2] claim on direct appeal constitute[s] ineffective assistance of appellate counsel,” and “demonstrat[es] cause and prejudice to excuse any procedural default.” Chase v MaCauley, 971 F3d 582, 586 (CA 6, 2020) (conditionally granting the defendant’s petition for writ of habeas corpus where defendant’s minimum sentencing range was increased on the basis of facts not found by the jury and defendant’s appellate counsel did not raise Alleyne claims).3
1 See Section 1.4 for discussion of MCR 6.425.
2 Alleyne v United States, 570 US 99 (2013), which held that mandatory sentencing on the basis of judge-found facts violates a defendant’s Sixth Amendment rights. For a detailed discussion of Alleyne, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 1.
3 Decisions of lower federal courts are not binding on Michigan courts, but they may be persuasive and instructive. Abela v Gen Motors Corp, 469 Mich 603, 607 (2004).