6.10Appealing a Plea-Based Conviction

A.Application for Leave to Appeal

Michigan law does not provide an appeal of right to defendants convicted by plea. See Const 1963, art 1, § 20. Appeal from a plea-based conviction is by application for leave to appeal. Id.; MCL 770.3(1)(d). See also MCR 6.302(B)(5); MCR 7.103(A)(1).¹

MCR 7.105(A)(1)-(2) provides:

“An application for leave to appeal must be filed with the clerk of the circuit court within:

(1) 21 days or the time allowed by statute after entry of the judgment, order, or decision appealed, or

(2) 21 days after the entry of an order denying a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the judgment, order, or decision if the motion was filed within:

(a) the initial 21-day period, or

(b) such further time as the trial court or agency may have allowed during that 21-day period.”

Additionally, if a defendant who has pleaded guilty or nolo contendere requests appointment of counsel within 21 days after entry of the judgment or sentence, “an application must be filed within 21 days after entry of an order:

(a) appointing or denying the appointment of an attorney, or

(b) denying a timely filed motion described in [MCR 7.105(A)](2).” MCR 7.105(A)(3).

When an application for leave has not been timely filed, an appellant may file a late application, following the procedures for filing an application for leave, accompanied by a statement of facts explaining the delay. MCR 7.105(G)(1). “The answer may challenge the claimed reasons for the delay[, and t]he circuit court may consider the length of and the reasons for the delay in deciding whether to grant the application.” Id. A defendant must challenge his or her guilty plea within the time allotted for applications for delayed leave to appeal in circuit court under MCR 7.105(G)(2); that is, a defendant must appeal a plea-based conviction no later than six months after entry of the judgment or entry of an order denying a motion to withdraw the plea. MCR 6.610(F)(8); MCR 7.105(G)(2)(a); MCR 7.105(G)(2)(c); see also People v Clement, 254 Mich App 387, 390-391 (2002) (applying former MCR 7.103(B)(6)).

B.Appointment of Appellate Counsel

In Halbert v Michigan, 545 US 605 (2005), the United States Supreme Court concluded that an indigent defendant who is seeking a discretionary appeal of his or her conviction and was convicted by plea may not be denied the appointment of appellate counsel.² 

Specifically, the Halbert Court held “that the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals.” Halbert, 545 US at 610. The Halbert Court examined Michigan’s appellate court system and noted that an appeal to the Michigan Court of Appeals, whether by right or by leave, is a defendant’s first-tier appeal and that, to some degree, the Court of Appeals’ disposition of these appeals involves a determination of the appeals’ merit. The Halbert Court noted that “indigent defendants pursuing first-tier review in the Court of Appeals are generally ill-equipped to represent themselves,” a critical fact considering that the Court of Appeals’ decision on those defendants’ applications for leave to appeal may entail an adjudication of the merits of the appeal.

“Whether formally categorized as the decision of an appeal or the disposal of a leave application, the Court of Appeals’ ruling on a plea-convicted defendant’s claims provides the first, and likely the only, direct review the defendant’s conviction and sentence will receive.” Id. at 619.

“Halbert should not be applied retroactively to cases in which a defendant’s conviction has become final.” People v Maxson, 482 Mich 385, 387 (2008). However, “[f]or those indigent defendants whose pleas were taken after Halbert was issued, but before the repeal of MCL 770.3a,³ there can be no finding of waiver[ of the right to counsel; b]ecause indigent defendants whose pleas were taken after June 23, 2005, but before January 9, 2007, could not have clearly understood that they had the right to appointed counsel, they could not have executed a knowing and intelligent waiver of this right.” People v Billings, 283 Mich App 538, 544-545 (2009).

See also People v James, 272 Mich App 182, 196-198 (2006) (noting that, pursuant to Halbert, 545 US 605, the defendant had “not waive[d] his right to the appointment [of appellate counsel] at the time of entering his guilty plea on the basis of the circuit court’s mere advisement that waiver would occur[,]” and holding that because no right to appellate counsel existed at the time the defendant pleaded guilty, the defendant could not have “intentionally relinquish[ed] a known right[]”).

C.Appeal Following the Execution of an Appeal Waiver

“[N]o appeal waiver serves as an absolute bar to all appellate claims,” despite the suggestion that an appeal waiver entered at the time of a guilty plea is “a monolithic end to all appellate rights.” Garza v Idaho, 586 US ___, ___ (2019). “[W]hile signing an appeal waiver means giving up some, many, or even most appellate claims, some claims nevertheless remain.” Id. at ___ (noting that “even a waived appellate claim can still go forward if the prosecution forfeits or waives the waiver”). “[D]efendants retain the right to challenge whether the waiver itself is valid and enforceable–for example, on the grounds that it was unknowing or involuntary.” Id. at ___ (finding that “when an attorney’s deficient performance costs a defendant an appeal that the defendant otherwise would have pursued, prejudice to the defendant should be presumed [regarding a claim of ineffective assistance of counsel] . . . even when the defendant has, in the course of pleading guilty, signed what is often called an ‘appeal waiver’”⁴).

D.No Appeal on Grounds Related to Factual Guilt or Nonjurisdictional Defects

Generally, guilty and nolo contendere pleas waive all nonjurisdictional defects in the proceedings. People v New, 427 Mich 482, 488, 491 (1986); see also People v Eaton, 184 Mich App 649, 653-654 (1990). However, an unconditional guilty or no contest plea does not necessarily waive a defendant’s right to challenge the state’s jurisdictional authority to bring the defendant to trial. New, 427 Mich at 495-496; Eaton, 184 Mich App at 658.⁵

A defendant may not appeal a plea-based conviction on grounds related to the prosecution’s capacity to prove the defendant’s factual guilt—an appellate challenge to the state’s evidence against the defendant is subsumed by a defendant’s guilty plea. New, 427 Mich at 491. The same is true for a defendant’s appeal of a conviction based on a plea of nolo contendere:

“Since a plea of nolo contendere indicates that a defendant does not wish to contest his [or her] factual guilt, any claims or defenses which relate to the issue of factual guilt are waived by such a plea. Claims or defenses that challenge a state’s capacity or ability to prove [the] defendant’s factual guilt become irrelevant upon, and are subsumed by, a plea of nolo contendere.      .      .      .      Only those defenses which challenge the very authority of the state to prosecute a defendant may be raised on appeal after entry of a plea of nolo contendere.” Id. at 493 (citations omitted).

E.Appeals Challenging the Constitutionality of the Underlying Statute

“[A] guilty plea by itself” does not bar a defendant “from challenging the constitutionality of the statute of conviction on direct appeal.” Class v United States, 583 US ___, ___ (2018) (holding the federal defendant could raise his constitutional claims that the statute under which he was convicted violated the Second Amendment and the Due Process Clause where these claims did “not fall within any of the categories of claims that [his] plea agreement forbid[],” such as claims that contradict the terms of an indictment or written plea agreement or claims based on case-related constitutional defects that occurred before entry of the plea, but rather, challenged “the Government’s power to criminalize [his] (admitted) conduct”).