Appointment of Appellate Counsel

20.9 Appointment of Appellate Counsel

A.Appeals from Family Division

A juvenile in a delinquency, designated, or traditional waiver proceeding in the Family Division “has a right to an attorney at each stage of the proceeding.” MCL 712A.17c(1). See also MCR 3.915(A)(1); MCR 3.951(A)(2)(b)(i). MCL 712A.17c(2) requires the court to appoint counsel for a juvenile “if 1 or more of the following apply:

“(a) The child’s parent refuses or fails to appear and participate in the proceedings.

(b) The child’s parent is the complainant or victim.

(c) The child and those responsible for his or her support are financially unable to employ an attorney and the child does not waive his or her right to an attorney.

(d) Those responsible for the child’s support refuse or neglect to employ an attorney for the child and the child does not waive his or her right to an attorney.

(e) The court determines that the best interests of the child or the public require appointment.”

MCR 3.915(A)(2)(a)-(e) contains substantially similar language. See also MCR 3.951(A)(2)(b)(i) (specifying that the court must advise the juvenile “of the right to an attorney at all court proceedings, including the arraignment”).

MCR 3.950(E)(1)(c)(iii) requires the Family Division to notify a juvenile of the right to appointed counsel to appeal from a decision to waive jurisdiction over the juvenile in a traditional waiver proceeding in accordance with MCR 3.993(D)(5).

The court must advise a juvenile of their appellate rights set forth in MCR 3.937 at the conclusion of a dispositional hearing under MCR 3.943 or any delinquency hearing at which the court orders that the juvenile be removed from a parent’s care and custody. MCR 3.937(A).¹

B.Appeals in Criminal Cases

An indigent criminal defendant is entitled to appointed counsel in his or her first appeal of right. Douglas v California, 372 US 353, 355-357 (1963). See also People v Campbell, 499 Mich 896, 896 (2016) (citing Douglas, 372 US 353, and holding that a defendant who files a motion for new trial during his or her appeal of right is “entitled to counsel during the proceeding and entitled to raise a claim of ineffective assistance of [appellate] counsel”).

Additionally, “the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas,^[²] who seek access to first-tier review in the Michigan Court of Appeals.” Halbert v Michigan, 545 US 605, 610, 619 (2005) (“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[]”).

The Halbert Court additionally held that the defendant did not waive his right to appointed counsel for first-level appellate review by entering his plea, because at that time he “had no recognized right to appointed appellate counsel he could elect to forgo[,]” and because “the trial court did not tell [him], simply and directly, that in his case, there would be no access to appointed counsel.” Halbert, 545 US at 623-624. In People v James, 272 Mich App 182, 194-195 (2006), the Court of Appeals ruled that the discussion of validity of waiver in Halbert, 545 US at 623-624, was not dictum and, therefore, must be followed by Michigan courts. Accordingly, the James Court held that the defendant in that case “did not waive 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[.]” James, 272 Mich App at 198.

Furthermore, requiring a defendant to waive his or her right to appointed appellate counsel as a plea condition constitutes an Equal Protection and Due Process violation. People v Billings, 283 Mich App 538, 545-547 (2009). Noting that the United States Supreme Court in Halbert, 545 US at 624 n 8, “unambiguously indicate[d] that [it] would hold unconstitutional the practice of imposing a waiver of appointed appellate counsel as a plea condition[,]” the Billings Court concluded that requiring defendants to waive the right to appellate counsel as a plea condition constitutes an Equal Protection violation because “moneyed defendants tendering guilty pleas would have greater access to first-tier appellate review than indigent defendants solely on the basis of the moneyed defendants’ financial status.” Billings, 283 Mich App at 545-546.

Defendants whose convictions are final are not afforded retroactive relief under Halbert, 545 US 605, under either federal or state retroactivity jurisprudence. People v Maxson, 482 Mich 385, 402-403 (2008).

“In a case involving a conviction following a guilty plea, the denial of appointed appellate counsel on the basis of the defendant’s failure to comply with the 42-day deadline for requesting counsel in MCR 6.425(G)(1)(c) does not violate Halbert[, 545 US 605].” People v McCoy, 483 Mich 898, 898 (2009).