Michigan Supreme Court 

# Order

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.

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By order of October 29, 2007, the defendant’s appellate counsel was directed to file a supplemental brief. On order of the Court, the br ief 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 C ourt of Appeals. That cour t 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 or der other relief, in accordance with MCR 7.205(D)(2 ). The defendant’s attorn ey acknowledges that the defendant did not contribute to the delay in filing and she kn owingly 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 assi stance of counsel. See Roe v Flores-Ortega , 528 US 470, 477; 120 S Ct 1029; 1 45 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 decisi on to delay filing and permit the deadline to pass without seeking to withdraw from representati on 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

C ORRIGAN , J., dissents and states as follows:_______________________________________ __ 2

I respectfully dissent. Th e defendant’s retained appe llate 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 de prived him of his app eal must show that, “but for counsel’s deficient conduct, he woul d have appealed.” Thus, the defendant must establish, as a factual matter, that his appella te attorney caused him to forgo an appeal by rendering assistance that fell below professiona l norms. His attorney may not be the but

for 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 appoi nted 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 wa ited to prepare and file his appeal until she received payment. She also claims that sh e informed the defendant and his family that she would not pursue an appeal until the d efendant paid his outstanding legal bills and an additional retainer. Und er these circumstances, questions of fact remain regarding whether the retained attorney caused the defendant to forgo his appeal by rendering assistance that fe ll below professiona l norms and whether the defendant contributed to the delay. A ccordingly, I would rem and for the trial cour t to address these questions at a Ginther hearing. People v Ginther, 390 Mich 436 (1973).

d0129 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

February 1, 2008

Clerk