People v. Bulger

Decision Date18 July 2000
Docket NumberDocket No. 112694, Calendar No. 9.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory R. BULGER, Defendant-Appellant.
CourtMichigan Supreme Court

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Henry G. Marsh, Special Prosecutor, Saginaw, MI, for the people.

State Appellate Defender (by David A. Moran), Detroit, MI, for the defendant-appellant.

Terence R. Flanagan, Lansing, MI, amici curiae for Michigan Appellate Assigned Counsel System, Michigan Defender Offices, Criminal Defense Attorneys of Michigan, and American Civil Liberties Union.

Kenneth M. Malkin, Bay City, MI, amici curiae for Michigan Defender Offices.

Ronald J. Bretz, Lansing, MI, amici curiae for Criminal Defense Attorneys of Michigan.

Michael J. Steinberg, Detroit, MI, amici curiae for American Civil Liberties Union and Criminal Defense Attorneys of Michigan.

Barbara R. Levine, Lansing, MI, amici curiae for Michigan Appellate Assigned Counsel System.

Brian L. Mackie, President, Gary L. Walker, Marquette County Prosecuting Attorney, and Terrence E. Dean, Appellate Counsel, Marquette, MI, amici curiae for Prosecuting Attorneys Association of Michigan.

John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, Detroit, MI, amici curiae for Wayne County Prosecutor's Office.

Stacy Hawkins, Interested Person, Kincheloe, MI, amici curiae.

Opinion

CORRIGAN, J.

We granted leave in this case to determine whether an indigent defendant is entitled to the appointment of appellate counsel at public expense when applying for leave to appeal a plea-based conviction. We hold that neither the state nor the federal constitution requires the appointment of counsel under these circumstances. Under our federalist scheme of government, Michigan remains free to decide the conditions under which appellate counsel will be provided where our state constitution commands that the mechanism of appellate review is discretionary. Const. 1963, art. 1, § 20.

Accordingly, we vacate the order of the Court of Appeals that remanded this case to the trial court for reconsideration in light of People v. Najar, 229 Mich.App. 393, 581 N.W.2d 302 (1998), reinstate the trial court's order denying defendant's motion for appointment of appellate counsel, and remand this case to the trial court so that defendant may pursue his application for leave to appeal his convictions.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Defendant pleaded guilty in Saginaw Circuit Court on July 10, 1995, to possession with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and possession of marijuana, M.C.L. § 333.7403(2)(d); MSA 14.15(7403)(2)(d). The trial court sentenced him to concurrent terms of imprisonment of six to twenty years for the cocaine conviction and one hundred forty-five days for the marijuana conviction. Defendant subsequently requested that the trial court appoint counsel to prepare his application for leave to appeal to the Court of Appeals. The trial court denied defendant's request. Defendant, along with several similarly situated defendants, then sought superintending control in this Court. This Court dismissed the complaint, but granted defendant and the other petitioners twenty-one days in which to move for appointed appellate counsel in the trial court. This Court further ordered the trial court to appoint counsel to argue the motion.

Defendant thereafter moved for the appointment of appellate counsel. The trial court appointed counsel to represent defendant for purposes of the motion and any resulting appeal. Following argument, the trial court denied defendant's motion in an opinion and order. The court noted that, in November 1994, the people of Michigan ratified Proposal B, which amended Const. 1963, art. 1, § 20 to state that "as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court,"1 but left the provision regarding appointment of counsel unchanged. The trial court further observed that, following the approval of Proposal B, this Court amended MCR 6.425(F)(1)(c) to provide that "[i]n a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointment of an attorney] if it is filed within 42 days after sentencing."

In denying counsel, the trial court reasoned that appointing counsel for every indigent defendant who seeks leave to appeal a plea-based conviction would defeat the purpose of Proposal B, which was to reduce costs and burdens on the criminal justice system arising from guilty plea appeals. It also observed that the need for counsel is less compelling in applications from plea-based convictions because the simplicity of the proceedings makes the process of identifying errors easier. The court further concluded that appointment of counsel was not constitutionally required. The court then reviewed the plea and sentencing proceedings in this case and, noting the lack of apparent error, denied defendant's request for counsel.

Defendant applied for leave to appeal the denial of his motion for appointed counsel. In lieu of granting leave, the Court of Appeals remanded the case to the trial court for reconsideration in light of Najar, supra.

The Court stated:

Najar neither requires the appointment of appellate counsel under MCR 6.425(F)(1)(c) in every case, nor forecloses the ability of a trial court to exercise its discretion to appoint counsel under MCR 6.425(F)(1)(c) in any case in which it concludes that the defendant is in need of assistance to pursue an application for leave to appeal. [Unpublished order, entered July 21, 1998 (Docket No. 209031).]

In Najar, the Court of Appeals addressed the question presented in the instant case. The Court reasoned that while Const. 1963, art. 1, § 20 entitles a defendant to "reasonable assistance in perfecting and prosecuting an appeal[,] ... [a]n application for leave to bring an appeal is plainly and simply not an appeal." Najar, at 398, 581 N.W.2d 302. The Court further concluded that neither the state nor the federal constitution guarantees a right to appointed counsel to pursue an application for leave to appeal. Finally, the Court considered the language of MCR 6.425(F)(1)(c), and concluded that the trial court has discretion to appoint counsel, but should appoint counsel when a defendant

raises any issue other than one relating to (1) the facial regularity of the plea-taking procedure, (2) the trial court's adherence to a sentencing agreement, (3) a plain correction of clerical error in court documents, such as a misspelling or a mathematical miscalculation, or (4) other instances absolutely devoid of merit.... [Najar, supra at 403-404, 581 N.W.2d 302.]

Following the order of the Court of Appeals remanding this case to the trial court for reconsideration in light of Najar, defendant sought leave to appeal to this Court, which we granted. 459 Mich. 873, 585 N.W.2d 303 (1998).

II. HISTORY OF RELEVANT STATE AUTHORITIES

Before the ratification of the 1963 Michigan Constitution, Const. 1908, art. 2, § 19 provided that an accused was entitled "in courts of record, when the trial court shall so order, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal." Criminal defendants, however, were not entitled to an appeal as of right. Const. 1963, art. 1, § 20, provided before the adoption of Proposal B in 1994 that a defendant had "an appeal as a matter of right; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal." (Emphasis added.)2

Art. 1, § 20, in its earlier form, thus provided defendants an appeal of right from all criminal convictions. Accordingly, this Court held in People v. Smith, 402 Mich. 72, 259 N.W.2d 558 (1977), that defendants could appeal by right from plea-based convictions. Moreover, the Court of Appeals held that a defendant's right to appeal plea-based convictions included a corollary right to appointment of appellate counsel. People v. Gazaway, 35 Mich.App. 39, 42, 192 N.W.2d 122 (1971).

Before the ratification of Proposal B in 1994, Michigan was one of only a handful of states that provided an unconditional right of appeal for those who pleaded guilty.3 In 1994, the Legislature submitted Proposal B to the electorate to decide whether to make appeals from plea-based convictions discretionary. "Eliminating appeals as a matter of right from plea-based convictions was suggested as a way to help control the case load [sic] of the Michigan Court of Appeals." Note, Limiting Michigan's guilty and nolo contendere plea appeals, 73 U. Det. Mercy L.R. 431 (1996). By 1992, the Court of Appeals had a backlog of more than 4,000 cases awaiting decision, and "[p]lea-based appeals constitute[d] approximately thirty percent of all appeals facing the Michigan Court of Appeals." Id., p. 438. Eliminating appeals of right from plea-based convictions was one method proposed to reduce a crushing burden on our appellate courts.

The voters approved Proposal B by a margin of sixty-four percent to thirty-six percent. Id., p. 431. As amended, Const. 1963, art. 1, § 20 now states that an accused is entitled "to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court ...." (Emphasis added.) Proposal B did not alter the provision of art. 1, § 20 that grants defendants "as provided by law, when the trial court so orders, ... such reasonable assistance as may be necessary to perfect and prosecute an appeal." The Legislature subsequently enacted M.C.L. § 770.3(1)(e); MSA 28.1100(1)(e), providing for appeals from plea-based convictions by application for...

To continue reading

Request your trial
40 cases
  • WPW Acquisition Co. v. City of Troy
    • United States
    • Court of Appeal of Michigan — District of US
    • June 14, 2002
    ...Thus, we must strive to effectuate the electorate's intent in ratifying the amendment of Const. 1963, art. 9, § 3. People v. Bulger, 462 Mich. 495, 507, 614 N.W.2d 103 (2000). "A constitution is made for the people and by the people. The interpretation that should be given it is that which ......
  • People v. Nutt
    • United States
    • Michigan Supreme Court
    • April 2, 2004
    ...Lapeer County Clerk v. Lapeer Circuit Court (In re Lapeer Co. Clerk), 469 Mich. 146, 155, 665 N.W.2d 452 (2003); People v. Bulger, 462 Mich. 495, 507, 614 N.W.2d 103 (2000). In applying this principle of construction, the people are understood to have accepted the words employed in a consti......
  • Simmons v. Kapture
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 26, 2007
    ...to appoint appellate counsel for indigent defendants seeking review in the state Court of Appeals. Id. (citing People v. Bulger, 462 Mich. 495, 511, 614 N.W.2d 103 (Mich.2000)). Like Simmons, Halbert sought appointed counsel to file an application for leave to appeal his guilty plea. Id. at......
  • Simmons v. Kapture
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 15, 2008
    ...Review), cited in 73 U. DET. MERCY L.R. at 449. The Michigan Supreme Court later reiterated this understanding. People v. Bulger, 462 Mich. 495, 614 N.W.2d 103, 107 (Mich.2000) ("Proposal B did not alter the provision of art 1, § 20 that grants defendants" "as provided by law, when the tria......
  • Request a trial to view additional results
3 books & journal articles
  • CHAPTER 4 THE RIGHT TO COUNSEL: AT TRIAL AND ON APPEAL
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume Two: Adjudication (CAP)
    • Invalid date
    ...statute, and claims of ineffective assistance of counsel." Halbert v. Michigan, 125 S. Ct. 2582, 2593 (2005) (quoting People v. Bulger, 614 N.W.2d 103, 13334 (Mich. 2000) (Cavanagh, J., dissenting)).[86] 372 U.S. 353 (1963). See § 4.04[B][1], supra.[87] 417 U.S. 600 (1974). See § 4.04[C], s......
  • § 28.04 THE RIGHT TO COUNSEL: ON APPEAL
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume One: Investigation (CAP) (2017) Title Chapter 28 The Right To Counsel: At Trial and On Appeal
    • Invalid date
    ...statute, and claims of ineffective assistance of counsel. Halbert v. Michigan, 545 U.S. 605, 612-22 (2005) (quoting People v. Bulger, 614 N.W.2d 103, 13334 (Mich. 2000) (Cavanagh, J., dissenting)).[95] 372 U.S. 353 (1963). See § 28.04[B][1], supra.[96] 417 U.S. 600 (1974). See § 28.04[C], s......
  • § 28.04 The Right to Counsel: On Appeal
    • United States
    • Carolina Academic Press Understanding Criminal Procedure, Volume One: Investigation (CAP) (2021) Title Chapter 28 The Right to Counsel: At Trial and on Appeal
    • Invalid date
    ...statute, and claims of ineffective assistance of counsel. Halbert v. Michigan, 545 U.S. 605, 612-22 (2005) (quoting People v. Bulger, 614 N.W.2d 103, 133-34 (Mich. 2000) (Cavanagh, J., dissenting)).[85] 372 U.S. 353 (1963). See § 28.04[B][1], supra. [86] 417 U.S. 600 (1974). See § 28.04[C],......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT