People v. Reed

• Decision Date: 15 March 1993
• Docket Number: Docket No. 150502
• Citation: 499 N.W.2d 441,198 Mich.App. 639
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Albert REED, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 441

499 N.W.2d 441

198 Mich.App. 639

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Albert REED, Defendant-Appellee.

Docket No. 150502.

Court of Appeals of Michigan.

Submitted Jan. 13, 1993, at Detroit.

Decided March 15, 1993, at 9:25 a.m.

Released for Publication May 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., John D. O'Hair, Pros.Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Asst. Pros.Atty., for the People.

Elizabeth L. Jacobs, Detroit, for defendant on appeal.

Before RICHARD ALLENGRIFFIN, P.J., and SHEPHERD and FITZGERALD, JJ.

FITZGERALD, Judge.

This case involves a prosecutor's appeal from the trial court's grant of defendant's postappeal motion for relief from judgment brought under MCR 6.501 et seq.(subchapter 6.500).In granting the motion, the court ruled that defendant was entitled to a new trial.Pursuant to our order granting leave to appeal, we instructed the parties to address the issue concerning this Court's jurisdiction with regard to the prosecutor's application for leave to appeal.

On August 1, 1983, defendant was convicted by a jury of first-degree felony murder, M.C.L. Sec. 750.316;M.S.A. Sec. 28.548, assault with intent to murder, M.C.L. Sec. 750.83;M.S.A. Sec. 28.278, assault with intent to rob while armed, M.C.L. Sec. 750.89;M.S.A. Sec. 28.284, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b;M.S.A. Sec. 28.424(2).Defendant appealed, raising two issues: erroneous instructions regarding the charge of felony murder and improper prosecutorial comments.This Court affirmed defendant's convictions in an unpublished opinion per curiam, decided September 13, 1984(Docket No. 74583).On March 28, 1985, the Supreme Court denied defendant's request for appointment of counsel for the purpose of pursuing leave to appeal.Defendant's May 20, 1991, motion for relief from judgment pursuant to MCR 6.502 was granted by the Recorder's Court for the City of Detroit.¹

I

The prosecutor asked this Court for leave to appeal the order granting defendant's motion for relief from judgment.²In his answer, defendant asserted that this Court lacked jurisdiction to grant leave to appeal because the underlying offenses were committed on September 24, 1982, and the amended statute, M.C.L. Sec. 770.12;M.S.A. Sec. 28.1109, authorizing appeals by prosecutors, does not apply to crimes that occurred before March 30, 1988.³A brief synopsis of the history of prosecutorial appeals from an order granting a new trial is instructive in understanding defendant's argument.

Appeals by the prosecutor in a criminal case are allowed only in specific instances set forth in M.C.L. Sec. 770.12;M.S.A. Sec. 28.1109.People v. Cooke, 419 Mich. 420, 355 N.W.2d 88(1984).In Cooke, the Supreme Court extremely limited the availability of a prosecutorial appeal as of right or by leave granted.One type of order that was eliminated as appealable was an order granting a new trial.

To circumvent the holding in Cooke prosecutors attempted to file complaints for superintending control to contest orders granting a new trial.In In re People v. Burton, 429 Mich. 133, 413 N.W.2d 413(1987), the Court further limited the ability of a prosecutor to contest the granting of a new trial by holding that this Court lacked jurisdiction to issue an order of superintending control to grant the prosecutor's request for reversal of the trial court's decision granting the defendant a new trial.Under M.C.L. Sec. 770.12;M.S.A. Sec. 28.1109, the order granting a new trial to a defendant was not appealable, and the order of superintending control was an improper means of granting appellate review when an appeal was not provided by general law.

In 1988, the Legislature amended M.C.L. Sec. 770.12;M.S.A. Sec. 28.1109 to broaden the authority of prosecutors to appeal.1988 P.A. 66.As a result of the amendment, prosecutors were given authority to appeal orders granting a new trial in cases where the crime occurred on or after March 30, 1988.

In this case, however, defendant proceeded under the postappeal relief procedures of subchapter 6.500.The prosecutor contends, therefore, that M.C.L. Sec. 770.12;M.S.A. Sec. 28.1109 is inapplicable and that appeals are governed by the specific appeal procedures provided in subchapter 6.500.We agree.

M.C.L. Sec. 600.308;M.S.A. Sec. 27A.308 defines the jurisdiction of the Court of Appeals.Section 308(2)(d) provides:

(2)The court of appeals has jurisdiction on appeal from the following orders and judgments which shall be reviewable only upon application for leave to appeal granted by the court of appeals:

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(d) Such other judgments or interlocutory orders as the supreme court may by rule determine.

The postappeal relief procedure of subchapter 6.500 specifically provides for the availability of an appeal from decisions under the subchapter.MCR 6.509 provides that "decisions under this subchapter are by application for leave to appeal to the Court of Appeals pursuant to MCR 7.205."The rule does not limit the availability of an appeal to a defendant.Thus, this Court has jurisdiction to review the trial court's order granting defendant relief from judgment.M.C.L. Sec. 600.308(2)(d);M.S.A. Sec. 27A.308(2)(d);MCR 6.509(A).

People v. Brown, 196 Mich.App. 153, 492 N.W.2d 770(1992), involved a prosecutor's appeal from the Detroit Recorder's Court's grant of the defendant's postappeal motion for relief from judgment brought under MCR 6.501 et seq.The underlying crime occurred on September 20, 1987.This Court treated the prosecutor's application for leave to appeal as a complaint for superintending control.The defendant sought leave to appeal.The Supreme Court denied leave to appeal, holding:

It was improper for the Court of Appeals to exercise superintending control jurisdiction under the circumstances of this case.In re Burton, 429 Mich 133[413 N.W.2d 413](1987).However, it is noted that an application for leave to appeal was available to the prosecutor.MCL 600.308(2)(d);MSA 27A.308(2)(d);MCR 6.509(A).The Court of Appeals should proceed with this matter as on leave granted rather than as superintending control.[439 Mich. 1010, 485 N.W.2d 503(1992).]

II

Having concluded that this Court has jurisdiction over the prosecutor's appeal, the question before us is whether the trial court properly granted defendant's motion for relief from judgment and awarded him a new trial.Generally, the grant of a new trial is reviewed for an abuse of discretion.People v. Bradshaw, 165 Mich.App. 562, 566-567, 419 N.W.2d 33(1988).However, MCR 6.508(D)(3) imposes limits on the trial court's grant of a postappeal motion for relief from judgment.That rule provides in pertinent part as follows:

The defendant has the burden of establishing entitlement to the relief requested.The court may not grant relief to the defendant if the motion

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(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 this subchapter, 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.As used in this subrule, "actual prejudice" means that,

(i) in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance of acquittal.

In this case, the trial court granted defendant's motion on the ground of ineffective assistance of counsel.Specifically, the trial court held that no sound trial strategy existed for trial counsel's failure to object to certain prosecutorial comments, and that appellate counsel failed to act as "reasonably prudent counsel" in failing to raise the issue regarding ineffective assistance of trial counsel.⁴

To establish a claim of ineffective assistance of counsel at trial, the defendant must show that counsel's performance was deficient and that, under an objective standard of reasonableness, counsel made an error so serious that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment.The defendant must also overcome the presumption that the challenged action might be considered sound trial strategy.Second, the deficiency must be prejudicial to the defendant.Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984);People v. Tommolino, 187 Mich.App. 14, 17, 466 N.W.2d 315(1991).We conclude that this same standard also applies when analyzing claims of ineffective assistance of appellate counsel.⁵

An appellate attorney's failure to raise an issue may result in counsel's performance falling below an objective standard of reasonableness if that error is sufficiently egregious and prejudicial.However, appellate counsel's failure to raise every conceivable issue does not constitute ineffective assistance of counsel.SeeJones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987(1983).Counsel must be allowed to exercise reasonable professional judgment in selecting those issues most promising for review.The fact that counsel failed to recognize or failed to raise a claim despite recognizing it does not per se constitute cause for relief from judgment.Thus, to permit proper review in cases where appellate counsel has pursued an appeal as of right and raised nonfrivolous claims, the defendant must make a testimonial record in the trial court in connection with a claim of ineffective assistance of appellate counsel.People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d 922(1973).⁶

In this case, defendant labeled his appellate counsel"ineffective" eight years after the appeal of his conviction in an attempt to establish "good cause" for failing to raise additional issues in his appeal as...