Order Michigan Supreme Court 

Lansing, Michigan 

February 1, 2008 Clifford W. Taylor,

 Chief Justice 

134663 & (19) Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellee, Justices 

v SC: 134663 

 COA: 278507 
 Kent CC: 05-004592-FH;

JASON LEE DEKUBBER, 05-004593-FH; 05-004594-FC

Defendant-Appellant. 

_________________________________________/ 

By order of October 29, 2007, the defendant’s appellate counsel was directed to 

file a supplemental brief. On order of the Court, the brief having been received, the 

application for leave to appeal the July 13, 2007 order of the Court of Appeals is again 

considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we 

REMAND this case to the Court of Appeals. That court shall treat the defendant’s 

delayed application for leave to appeal as having been filed within the deadline set forth 

in MCR 7.205(F) and shall decide whether to grant, deny, or order other relief, in 

accordance with MCR 7.205(D)(2). The defendant’s attorney acknowledges that the 

defendant did not contribute to the delay in filing and she knowingly allowed the 

appellate filing deadline to pass because defendant’s family was unable to pay for her 

services. We conclude that the defendant was deprived of his direct appeal as a result of 

constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 

477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 

119 S Ct 961; 143 L Ed 2d 18 (1999). Counsel’s decision to delay filing and permit the 

deadline to pass without seeking to withdraw from representation so that the court could 

appoint appellate counsel to prepare defendant’s appeal was the “but-for” cause of 

defendant’s lost appeal. 

Costs are imposed against the attorney, only, in the amount of $250, to be paid to 

the Clerk of this Court. 

We do not retain jurisdiction 

CORRIGAN, J., dissents and states as follows: 
 _________________________________________ 

 

2 

I respectfully dissent. The defendant’s retained appellate attorney missed the 

deadline for late appeal in the Court of Appeals. As a result, his appeal was dismissed for 

lack of jurisdiction. Under Roe v Flores-Ortega, 528 US 470, 486 (2000), a defendant 

alleging that ineffective assistance of counsel deprived him of his appeal must show that, 

“but for counsel’s deficient conduct, he would have appealed.” Thus, the defendant must 

establish, as a factual matter, that his appellate attorney caused him to forgo an appeal by 

rendering assistance that fell below professional norms. His attorney may not be the butfor cause of his lost appeal if the defendant contributed to the delay or indicated that he 

did not wish to appeal. Cf. Peguero v United States, 526 US 23, 25-26, 28 (1999). Here, 

the defendant replaced his appointed appellate attorney by retaining a second attorney 

almost 11 months after his convictions and sentences were entered. After the retained 

attorney filed an unsuccessful motion for resentencing in the trial court, the defendant’s 

family did not pay his legal bills on time. His retained attorney asserts that, although the 

family’s inability to pay was “not Defendant’s fault,” she waited to prepare and file his 

appeal until she received payment. She also claims that she informed the defendant and 

his family that she would not pursue an appeal until the defendant paid his outstanding 

legal bills and an additional retainer. Under these circumstances, questions of fact remain 

regarding whether the retained attorney caused the defendant to forgo his appeal by 

rendering assistance that fell below professional norms and whether the defendant 

contributed to the delay. Accordingly, I would remand for the trial court to address these 

questions at a Ginther hearing. People v Ginther, 390 Mich 436 (1973). 

d0129 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

February 1, 2008 

Clerk