ICLE Homepage | Other New and Amended MCRs
March 28, 2000
00-07
Amendment of Rules 6.302,
6.425, and 6.615, and
Adoption of New Rule
6.625, of the Michigan
Court Rules
__________________________
On order of the Court, the need for immediate action
having been found, the notice requirements of MCR 1.201 are
dispensed with and the following amendments of Rules 6.302, 6.425,
and 6.615, and new Rule 6.625, of the Michigan Court Rules are
adopted, to be effective as to pleas taken on or after April 1,
2000. These amendments will be considered at a public hearing by
the Court. The Clerk of the Court will publish a schedule of
future public hearings.
[The present language is repealed and replaced by the
following language unless otherwise indicated below.]
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
Rule 6.302 Pleas of Guilty and Nolo Contendere
(A) [Unchanged.]
(B) An Understanding Plea. Speaking directly to the defendant,
the court must advise the defendant and determine that the
defendant understands:
(1) - (3) [Unchanged.]
(4) if the plea is accepted, the defendant will be giving up
any claim that the plea was the result of promises or
threats that were not disclosed to the court at the plea
proceeding, or that it was not the defendant's own choice
to enter the plea[.];
(5) any appeal from the conviction and sentence pursuant to
the plea will be by application for leave to appeal and
not by right;
(6) if the plea is accepted and the defendant
is financially unable to retain a lawyer, the
court must appoint a lawyer to represent the
defendant on appeal if
(a) the defendant's sentence exceeds the
upper limit of the minimum sentence range
of the applicable sentencing
guidelines,
(b) the defendant seeks leave to
appeal a conditional plea under MCR
6.301(C)(2),
(c) the prosecuting attorney seeks leave
to appeal, or
(d) the Court of Appeals or the Supreme
Court grants the defendant's application
for leave to appeal; and
(7) if the plea is accepted and the defendant
is financially unable to retain a lawyer, the
court, in its discretion, may appoint a lawyer
to represent the defendant on appeal if
all the following apply:
(a) the defendant seeks leave to appeal on
the basis of an alleged improper scoring
of an offense variable or a prior record
variable,
(b) the defendant objected to the scoring
or otherwise preserved the matter for
appeal, and
(c) the sentence constitutes an upward
departure from the upper limit of the
minimum sentence range that the defendant
alleges should have been scored.
With regard to paragraphs (6) and (7), the court is
required to give only the advice that is applicable to the
particular circumstances.
(C) - (F) [Unchanged.]
Rule 6.425 Sentencing; Appointment of Appellate Counsel
(A) - (D) [Unchanged.]
(E) Advice Concerning the Right to Appeal; Appointment of Counsel.
(1) [Unchanged.]
(2) In a case involving a conviction following a plea of
guilty or nolo contendere, immediately after imposing
sentence, the court must advise the defendant, on the
record, that
(a) the defendant is entitled to file an application
for leave to appeal;
(b) if the defendant is financially unable to retain a
lawyer, the court must appoint [defendant
may request appointment of] a lawyer to
represent the defendant on appeal if
(i)the defendant's sentence exceeds the
upper limit of the minimum sentence range
of the applicable sentencing
guidelines,
(ii) the defendant seeks leave to
appeal a conditional plea under MCR
6.301(C)(2),
(iii) the prosecuting attorney seeks leave
to appeal, or
(iv) the Court of Appeals or the Supreme
Court grants the defendant's application
for leave to appeal;
(c) if the defendant is financially unable
to retain a lawyer, the court, in its
discretion, may appoint a lawyer to
represent the defendant on appeal if all
the following apply:
[i] the defendant seeks leave to
appeal on the basis of an alleged
improper scoring of an offense
variable or a prior record
variable,
[ii] the defendant objected to the scoring or
otherwise preserved the matter for
appeal, and
[iii] the sentence constitutes an
upward departure from the upper
limit of the minimum sentence range
that the defendant alleges should
have been scored; and
([c]d)the request for a lawyer must be
made within 42 days after
sentencing, unless the
entitlement to counsel arises under
(b)(iii) or (iv).
With regard to paragraphs (b) and (c), the court is
required to give only the advice that is applicable to
the particular circumstances.
Upon sentencing, the court shall give the defendant a
form developed by the State Court Administrative Office
that the defendant may complete and file as an
application for leave to appeal.
(3) The court also must give the defendant a request for
counsel form containing an instruction informing the
defendant that the form must be completed and returned to
the court within 42 days after sentencing if the
defendant wants the court to appoint a lawyer. The
42-day time limit does not apply if the entitlement to
counsel arises under subrule (2)(b)(iii) or (iv).
(4) [Unchanged.]
(F) Appointment of Lawyer; Trial Court Responsibilities in
Connection with Appeal.
(1) Appointment of Lawyer.
(a) - (b) [Unchanged.][]
[(c)] [In a case involving a conviction
following a plea of guilty or nolo
contendere the court should liberally
grant the request if it is filed within
42 days after sentencing.]
(c[d]) Scope of Appellate Lawyer's
Responsibilities. The
responsibilities of the appellate
lawyer appointed to represent the
defendant include representing the
defendant
(i) - (iv) [Unchanged.]
(2) - (3) [Unchanged.]
Rule 6.615 Misdemeanor Traffic Cases
(A) - (D) [Unchanged.]
[(E)] [Appeal. An appeal from a misdemeanor trial is
governed by subchapter 7.100.]
[The following language is adopted.]
Rule 6.625 Appeal; Appointment of Lawyer
An appeal from a misdemeanor case is governed by subchapter
7.100. An indigent defendant who pleads guilty, guilty but
mentally ill, or nolo contendere is entitled to the assistance of
assigned appellate counsel at public expense if the prosecution
seeks leave to appeal or the Court or Appeals or the Supreme Court
grants the defendant's application for leave to appeal.
Staff Comment: The March 28, 2000 amendment of
Rules 6.302, 6.425, and 6.615, and the adoption of new Rule 6.625,
were made in light of 1999 PA 200, MCL 770.3a; MSA 28.1100a, and
were effective as to pleas taken on or after April 1, 2000.
The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.
Cavanagh, J., states as follows:
I dissent. Generally, under the rules promulgated by
this Court, before amending the Michigan Court Rules, this Court
notifies the State Bar of Michigan of the proposed change,
publishes the proposed amendment in the Michigan Bar Journal, and
receives comments on the need for and the appropriateness of the
proposed rule, or, it considers rule changes at public hearings
held after a notice period, where the Court hears public comments.
MCR 1.201; Administrative Order No. 1997-11. Instead of following
the usual course, the Court today bolts to amend Chapter 6 of the
Michigan Court Rules, claiming "a need for immediate action" on the
basis of 1999 PA 200.
Considering all the circumstances surrounding the new
enactment, however, it is clear that it would be far more judicious
to employ the usual procedures before amending Chapter 6. First,
although Michigan statutes are presumed constitutional,
Caterpillar, Inc v Dep't of Treasury, 440 Mich 400, 413 (1992), it
is no secret that 1999 PA 200 is subject to serious constitutional
challenge. Indeed, 1999 PA 200 is being challenged even now in
federal district court.[1] The federal district
court's decision will determine the constitutionality of the exact
statute upon which the majority relies as its "need" for immediate
action. If the new enactment is held a constitutional violation by
a federal court, then that decision will bear on the content of the
Michigan Court Rules, because federal decisions are authoritative
on federal constitutional questions. Cooper v Aaron, 358 US 1, 18
(1958). In that event, today's amendment of Chapter 6 will be
shown to have been a wasted effort. Chapter 6 will have been
amended for naught, only to require further amendment to again
conform with the federal constitution.
Further, this Court has pending before it a related issue
that could prove instructive for any amendment of Chapter 6. For
the past two terms, this Court has considered whether counsel must
be appointed for indigent defendants who apply for leave to appeal
a guilty or nolo contendere plea.[2] Whatever
decision the Court reaches in that case, the complexities
surrounding the decision could aid the Court in amending Chapter 6.
By employing the usual notice, publication, and comment
practices for amending the court rules, this Court could be more
educated about the action it takes. For example, during what would
be the comment period, the federal district court may rule on the
constitutionality of 1999 PA 200. Should that Court hold the new
enactment a constitutional violation, waiting to amend the court
rules would spare this Court the burden of setting in motion a
second time the court rules amendment machinery. Instead, by
rushing to amend the rules, this Court unnecessarily places itself
in the position of making a rule that possibly will be a federal
constitutional violation itself, that would then have to be amended
once more to bring the rule into compliance with the federal
constitution.
And if the federal district court did not rule during
what would be the comment period, this Court would still be better
educated about its decision if it employed the normal procedures.
Allowing interested persons to comment on the rule could
independently inform the Court of whether it should amend Chapter
6 now or wait for a final decision, either from the federal
district court or from this Court, regarding the constitutionality
of 1999 PA 200. Similarly, this Court may finally decide whether
counsel was required in those cases that arose before the statute
became effective, which, however the Court decides, could be
instructive about whether counsel is required in the face of 1999
PA 200.
Taking the more cautious approach, and following this
Court's usual procedures, has nothing to do with the statute's
presumed constitutionality. Our state constitution provides that
appealing defendants have counsel "as provided by law." Const
1963, art 1, § 20. Thus, in providing counsel, courts are
directed to follow the Legislature's directives, Buback v Governor,
380 Mich 209, 226 (1968), so unless 1999 PA 200 is stricken, courts
will follow it regardless of whether this Court amends Chapter 6
now or after following the normal course for amending rules.
Following those normal procedures, though, could save this Court
from having to undo its present act if 1999 PA 200 is overturned by
the federal courts.
Kelly, J., joins in the statement of Cavanagh, J.
1 Tesmer v Granholm, No. 00-10082 (ED Mich, 2000)
(seeking to enjoin 1999 PA 200 from taking effect on April 1,
2000).
2
People v Bulger, 459 Mich 873 (1998) (granting leave), 461 Mich
1204 (1999) (ordering the case to be resubmitted).
Corrigan, J., states as follows:
I concur in the Court's decision to dispense with the
notice requirements of MCR 1.201 in amending Chapter 6 of the
Michigan Court Rules. MCR 1.201(D) states: "The Court may modify
or dispense with the notice requirements of this rule if it
determines that there is a need for immediate action." A "need for
immediate action" exists in this matter. The Legislature has
enacted a statute requiring the appointment of appellate counsel in
guilty plea cases in certain defined circumstances, permitting it
in another, and otherwise providing that an indigent defendant
waives any right to appointed appellate counsel if he chooses to
plead guilty, guilty but mentally ill, or nolo contendere. 1999 PA
200, MCL 770.3a; MSA 28.1100a. This act takes effect on April 1,
2000. Our amendment of the court rules renders them consistent
with the new statutory provisions by requiring trial courts to
advise defendants of the extent to which they are entitled to
counsel under the statute in guilty plea cases. We also delete MCR
6.425(F)(1)(c)'s requirement that trial courts "liberally grant" a
request for appointed appellate counsel in guilty plea cases. This
broad grant of authority is inconsistent with the new statutory
provisions' limitation on the circumstances in which courts may
appoint counsel.
The dissent asserts that we should not adopt these
amendments because the new statute might be unconstitutional. The
dissent notes a federal lawsuit challenging the constitutionality
of 1999 PA 200.[1]
Const 1963, art 1, § 20 states, inter alia, that a
defendant shall have the right "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." The dissent
concedes that this provision vests authority in the Legislature to
define the parameters of the right to appointed appellate
counsel.[2] Nonetheless, the dissent
would disregard the wishes of the people as expressed through their
elected representatives solely on the basis of speculation that a
federal district court might find 1999 PA 200 unconstitutional.
That act was validly enacted and, as the dissent concedes, is
presumed constitutional unless and until it is declared otherwise.
The dissent also notes that we are presently considering
whether appointed appellate counsel is constitutionally required in
guilty plea cases in People v Bulger, 459 Mich 873 (1998) (granting
leave), 461 Mich 1204 (1999) (ordering the case to be resubmitted).
The dissent suggests that our decision in Bulger would aid us in
amending the court rules. This argument ignores the need for
immediate action presented by the April 1, 2000, effective date of
the statute. Additionally, the constitutionality of 1999 PA 200 is
not before us in Bulger. The dissent apparently would use Bulger
or our administrative rule-making process as a springboard to
attack the constitutionality of 1999 PA 200 outside the context of
a case or controversy.
Finally, the dissent notes that publishing the proposed
amendments for comment would educate us about the action we take.
This argument can always be made when we find a need for immediate
action. By enacting MCR 1.201(D), however, this Court has
recognized that the need for immediate action sometimes outweighs
the benefits associated with the usual notice and comment period.
In my judgment, these circumstances warrant immediate action under
MCR 1.201(D).
1
Tesmer v Granholm, No. 00-10082 (ED Mich, 2000) (seeking to enjoin
1999 PA 200 from taking effect on April 1, 2000).
2
This Court has consistently construed the phrase "provided by law"
in other portions of our constitution as vesting authority to act
in the Legislature. See, e.g., Buback v Governor, 380 Mich 209,
226 (1968).