3.8Procedure, Evidentiary Hearing, and Determination
“Most of the provisions on governing hearings and decision on the motion are found in MCR 6.508.” 1989 Staff Comment to MCR 6.508. “Where no particular provision of [MCR 6.500 et seq.] prescribes a procedure, the court has discretion to select appropriate procedures.” 1989 Staff Comment to MCR 6.508.
“If the rules in [MCR 6.500 et seq.] do not prescribe the applicable procedure, the court may proceed in any lawful manner.” MCR 6.508(A). “The court may apply the rules applicable to civil or criminal proceedings, as it deems appropriate.” Id.
B.Decision With or Without Evidentiary Hearing
“After reviewing the motion and response, the record, and the expanded record, if any, the court shall determine whether an evidentiary hearing is required.” MCR 6.508(B). “If the court decides that an evidentiary hearing is not required, it may rule on the motion or, in its discretion, afford the parties an opportunity for oral argument.” Id.
“When [a] circuit court determines that an evidentiary hearing is required to resolve an issue, . . . it must comply with MCR 6.508(C)[.]” People v Sanders, 497 Mich 978 (2015). MCR 6.508(C) requires the court to “schedule and conduct the hearing as promptly as practicable.” “At the hearing the rules of evidence other than those with respect to privilege do not apply.” Id. The court must ensure that the hearing is recorded verbatim. Id.
“The defendant has the burden of establishing entitlement to the relief requested.” MCR 6.508(D). “[W]hile MCR 6.508(D) requires the defendant to establish entitlement to relief, it does not require him to state with particularity under which subrule he is seeking that relief.” People v Owens, 338 Mich App 101, 113, 116-117 (2021) (rejecting the prosecution’s argument “that the trial court should not have granted defendant’s motion for relief from judgment on the basis of a change in law when defendant only argued that he was entitled to relief from judgment on the basis of new evidence”).1 In propria persona defendants are “entitled to an even greater degree of lenity and generosity in construing [their] pleadings than a lawyer would have been.” Id. at 117.
“The court may not grant relief to the defendant if the motion
(1) seeks relief from a judgment of conviction and sentence that still is subject to challenge on appeal pursuant to [MCR 7.200 et seq. or MCR 7.300 et seq.];
(2) alleges grounds for relief which were decided against the defendant in a prior appeal or proceeding under [MCR 6.500 et seq.], unless the defendant establishes that a retroactive change in the law has undermined the prior decision; for purposes of this provision, a court is not precluded from considering previously-decided claims in the context of a new claim for relief, such as in determining whether new evidence would make a different result probable on retrial,[2] or if the previously-decided claims, when considered together with the new claim for relief, create a significant possibility of actual innocence;
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under [MCR 6.500 et seq.], unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief. . . .” MCR 6.508(D) (emphasis added).
“As used in [MCR 6.508(D)], ‘actual prejudice’ means that,
(i) in a conviction following a trial,
(A) but for the alleged error, the defendant would have had a reasonably likely chance of acquittal; or
(B) where the defendant rejected a plea based on incorrect information from the trial court or ineffective assistance of counsel, it is reasonably likely that
(1) the prosecutor would not have withdrawn any plea offer;
(2) the defendant and the trial court would have accepted the plea but for the improper advice; and
(3) the conviction or sentence, or both, under the plea’s terms would have been less severe than under the judgment and sentence that in fact were imposed.
(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo contendere, the defect in the proceeding was such that it renders the plea an involuntary one to a degree that it would be manifestly unjust to allow the conviction to stand;
(iii) in any case, the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case;
(iv) in the case of a challenge to the sentence, the sentence is invalid.” MCR 6.508(D)(3)(b).
Previously decided issues (MCR 6.508(D)(2)). The Court of Appeals did not decide an issue against defendant for purposes of MCR 6.508(D)(2) when it strictly adhered to the scope of a remand order and dispensed with the issue on procedural grounds. People v Good (On Reconsideration), 346 Mich App 275, 288 (2023).
Issues that could have been raised earlier (MCR 6.508(D)(3)). “In order to be entitled to relief under MCR 6.508(D)(3), both ‘good cause’ and ‘actual prejudice’ must be established.” People v Kimble, 470 Mich 305, 313-314 (2004). See also Owens, 338 Mich App at 124 (holding “good cause or actual prejudice are not independent bases to grant relief from judgment”). A defendant is required to fulfill the good cause requirement regardless of whether he or she filed a prior motion in propria persona or with representation. People v Clark (Paul), 274 Mich App 248, 254 (2007). However, “[t]he court may waive the ‘good cause’ requirement of [MCR 6.508(D)(3)(a)] if it concludes that there is a significant possibility that the defendant is innocent of the crime.” MCR 6.508(D).
“‘Good cause’ can be established by proving ineffective assistance of counsel.” Kimble, 470 Mich at 314. “To demonstrate ineffective assistance, it must be shown that defendant’s attorney’s performance fell below an objective standard of reasonableness and this performance prejudiced him [or her].” Id. (good cause and actual prejudice established where defense counsel admitted that an offense variable was erroneously scored, he should have brought it to the court’s attention, and his failure to do so resulted in a sentencing error). See also People v Pennell, 507 Mich 993 (2021) (good cause was demonstrated where the defendant submitted a timely but incomplete request for appointment of appellate counsel, but “the record contain[ed] no indication that the circuit court notified the defendant that his request was defective or that it would not be granted,” and “[b]y the time the unrepresented defendant submitted a second request for the appointment of appellate counsel, the deadline for pursing an appeal by leave had expired”; prejudice was demonstrated where the sentence was invalid because the sentencing court relied on an inappropriate guidelines range due to a scoring error); People v Brown, 491 Mich 914, 914-915 (2012) (granting the defendant a new trial under MCR 6.508(D) because the defendant’s trial counsel was ineffective in failing to present certain corroboratory evidence and in failing to “effectively cross-examine the sole complainant” about inconsistencies in her testimony; “[b]ecause the defendant’s former appellate counsel was ineffective for failing to raise these issues on the defendant’s direct appeal, and the defendant was prejudiced thereby, he . . . met the burden of establishing entitlement to relief under MCR 6.508(D)”). Further, “a defendant who has supplemented appellate counsel’s efforts with a Standard 4 brief does not per se waive their ability to later raise ineffective assistance of appellate counsel claims in a motion for relief from judgment.” Good, ___ Mich App at ___ (noting that “[a] court presented with such a claim in a motion for relief from judgment should carefully consider any pro se appellate advocacy when deciding both if the Standard 4 brief covered some alleged deficiency in appellate counsel’s performance, and if the defendant has satisfied the good-cause requirements under MCR 6.508(D)(3) for failing to raise issues on direct appeal”).
Actual prejudice in a plea case requires a showing of a defect in the proceedings and a showing that the defect rendered the plea involuntary “‘to a degree that it would be manifestly unjust to allow the conviction to stand.’” People v White, 337 Mich App 558, 577 (2021), quoting MCR 6.508(D)(3)(b)(ii). A defect in the proceedings was established where the trial court failed to advise the defendant of mandatory consecutive sentencing; however, in order to grant relief the defect must have rendered the plea involuntary to the degree that it would be manifestly unjust to allow the conviction to stand. White, 337 Mich App at 577 (remanding for additional findings and noting that actual prejudice could not be established if there was “adequate evidence that defendant was fully aware of the mandatory consecutive sentencing when pleading guilty”).
In any case, actual prejudice “can be demonstrated when an ‘irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case[.]’” White, 337 Mich App at 577, quoting MCR 6.508(D)(3)(b)(iii) (alteration in original). An irregularity occurred where the trial court failed to advise the defendant of mandatory consecutive sentencing; however, “it is for the trial court to assess on remand whether the irregularity was sufficiently offensive to the maintenance of a sound judicial process irrespective of defendant’s guilt or innocence.” White, 337 Mich App at 577-578.
“[W]hen a defendant’s requested relief is resentencing, the prejudice portion of the test would consider whether the party could not have produced the evidence at sentencing and whether the evidence would make a different result probable on resentencing.” Owens, 338 Mich App at 123-124 (holding the defendant’s successive motion for relief from judgment seeking resentencing should have been granted on the basis of newly discovered evidence where a federal court partially granted his petition for writ of habeas corpus vacating two convictions because they were not supported by sufficient evidence).
The “defendant satisfied the ‘good cause’ and ‘actual prejudice’ requirements for purposes of MCR 6.508(D)(3)” where he was convicted of first-degree murder and sentenced to life without the possibility of parole as an 18-year-old in 2001, but the Court later determined that such sentences violate the prohibition on cruel and/or unusual punishment. People v Poole, ___ Mich App ___, ___ (2024) (vacating the defendant’s sentence and remanding for resentencing consistent with the procedure set out in MCL 769.25).3
“The court, either orally or in writing, shall set forth in the record its findings of fact and its conclusions of law, and enter an appropriate order disposing of the motion.” MCR 6.508(E).
1 Further noting that the trial court did not abuse its discretion by recharacterizing defendant’s argument and then granting relief on that basis where the prosecution had notice and the opportunity to be heard concerning the recharacterized argument. People v Owens, 338 Mich App 101, 117(2021).
2 To determine whether new evidence warrants granting relief, courts should apply the test articulated in People v Cress, 468 Mich 678 (2003). People v Rogers, 335 Mich App 172, 193 (2020) (stating that “cases interpreting and applying Cress’s four-part standard are relevant to the question in this case—whether defendant is entitled to a new trial based on newly discovered evidence—regardless of whether the particular case involved a motion for new trial or motion for relief from judgment”). See also Owens, 338 Mich App at 123 (“[t]his four-part test applies regardless of whether a defendant is seeking a new trial or relief from judgment”). See Section 1.5(F)(1) for discussion of Cress’s four-part standard.
3 MCL 769.25 governs the procedure for imposition of a sentence of life without the possibility of parole for a defendant who is less than 18 years old, and in People v Parks, 510 Mich 225, 255 (2022), the Michigan Supreme Court determined that “mandatorily subjecting 18-year-old defendants to life in prison, without first considering the attributes of youth, is unusually excessive imprisonment and thus a disproportionate sentence that constitutes cruel or unusual punishment under Const 1963, art 1, § 16.” People v Poole, ___ Mich App ___, ___ (2024). For a detailed discussion of this issue, see the Michigan Judicial Institute’s Juvenile Justice Benchbook, Chapter 19.