Order Michigan Supreme Court 

Lansing, Michigan 

July 28, 2006 Clifford W. Taylor,

 Chief Justice 

130530 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: 130530 

 COA: 266136 

Muskegon CC: 04-049741-FH

WILLIE C. PIPKINS,

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the January 17, 2006 

order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of 

granting leave to appeal, we VACATE the Muskegon Circuit Court’s September 22, 

2005 order denying defendant’s motion for appointment of new appellate counsel. We 

REMAND this case to the Muskegon Circuit Court for a determination of whether 

defendant is indigent and, if so, for the appointment of appellate counsel. Halbert v 

Michigan, 545 US __; 125 S Ct 2582; 162 L Ed 2d 552 (2005). 

Appellate defense counsel’s March 2, 2005 motion to withdraw as appellate 

counsel and for substitute counsel represented that defendant had requested his 

withdrawal and that he and defendant differed over pursuit of a frivolous appellate issue, 

but it did not represent that counsel believed that no non-frivolous issues existed to 

pursue on appeal. Rather, the motion suggested that non-frivolous, preserved appellate 

issues existed by stating that: 

[Defendant] made a motion to withdraw his plea at his sentencing, 

which was denied by the Court. At sentencing, trial counsel objected to the 

scoring of some disputed guidelines; some objections were granted and 

others were denied. As such, this case could have proceeded to the Court 

of Appeals on the denial of the motion to withdraw and on the guidelines 

issue but for this new issue over the habitual offender notice. Yet now, 

appellate counsel is confronted with a client who refuses to dismiss the 

appeal, insists on raising [another] issue which appellate counsel finds 

meritless and Defendant rejects appellate counsel [emphasis supplied]. 
 

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Thus, the March 14, 2005 circuit court order that granted counsel’s motion to withdraw 

but denied his and defendant’s pro se requests for substitute appellate counsel could not 

have been premised on any sustainable finding that all potential appellate issues were 

frivolous. An indigent defendant was not then entitled to appointed appellate counsel, 

except in specified circumstances inapplicable here. MCR 6.302(B)(6), 466 Mich lxxxivlxxxv (2002); MCR 6.425(E)-(F), 461 Mich cxcix-ccix (2000); and MCL 770.3a(1)-(2). 

Therefore, the September 22, 2005 circuit court order improperly denied defendant’s 

post-Halbert motion for appointed appellate counsel by erroneously finding that “[o]n 

March 14, 2005, the Court granted appellate counsel’s motion to withdraw on the ground 

that he did not want to file a frivolous appeal and defendant demanded substitute 

appellate counsel.” Even if the March 14, 2005 order was sustainable under then-extant 

authority, Halbert abrogated that authority and defendant was thus deprived of his right 

to appointed appellate counsel to pursue the non-frivolous issues identified in former 

appointed appellate counsel’s withdrawal motion. 

Appointed counsel may file an application for leave to appeal with the Court of 

Appeals, and/or any appropriate postconviction motions in the trial court, within twelve 

months of the date of the circuit court’s order appointing counsel, as, at the time 

defendant was denied counsel, he was entitled to file pleadings within twelve months of 

sentencing rather than six months. See the former versions of MCR 7.205(F)(3), MCR 

6.311, and MCR 6.429. 

We do not retain jurisdiction. 

CORRIGAN, J., dissents and states as follows: 

I respectfully dissent from the majority’s decision to remand the case for 

appointment of substitute appellate counsel. When the court appointed appellate 

counsel, defendant received that which is required by Halbert v Michigan, 545 US__; 

125 S Ct 2582 (2005). Halbert does not require that the court appoint a second appellate 

attorney because defendant disliked the first. Indigent defendants who receive 

appointed counsel do not have the right to counsel of their choice. This Court should 

refrain from recognizing a right that simply does not exist. 

The trial court appointed Steve Ramey as appellate defense counsel after 

defendant pleaded no contest to a charge of third-degree criminal sexual conduct, MCL 

750.520d(1)(a), as a fourth-offense habitual offender. Defendant wished to appeal the 

sentence enhancement, believing that it was flawed. The felony information listed a 

1993 conviction that defendant claimed had never occurred. Because the 1993 

conviction was irrelevant, given defendant’s three other uncontested felonies, Ramey, in 

the exercise of his professional judgment, declined to raise the sentence enhancement as 

an appellate issue. Defendant then insisted that Ramey withdraw from representing him. 
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Ramey moved to withdraw and also sought the appointment of substitute 

appellate counsel. Within the week, defendant also moved pro se for Ramey’s removal 

and for appointment of substitute appellate counsel under Halbert. The trial court 

granted Ramey’s motion to withdraw, but denied Ramey's and defendant’s motions for 

appointment of substitute appellate counsel. The court also stated that it had not 

considered the 1993 conviction when imposing the sentence enhancement. 

In Halbert, the Supreme Court held that “the Due Process and Equal Protection 

Clauses require the appointment of counsel for defendants, convicted on their pleas, who 

seek access to first-tier review in the Michigan Court of Appeals.” Halbert, supra, 125 

S Ct 2586. As Halbert required, the trial court here provided defendant with appointed 

appellate counsel. 

The majority has fundamentally misconstrued Halbert. It does not grant an 

indigent defendant the right to appointed appellate counsel of his choosing. This notion 

is wholly unsupported by Halbert and contrary to a subsequent Supreme Court opinion. 

Halbert said nothing about a right to more than one appointed appellate counsel. And 

the Supreme Court has since reiterated that “an element of [the Sixth Amendment right 

to counsel] is the right of a defendant who does not require appointed counsel to choose 

who will represent him.” United States v Gonzalez-Lopez, __US__; 126 S Ct 2557, 

2561 (2006), citing Wheat v United States, 486 US 153, 159 (1998) (emphasis added). 

The Supreme Court has thus clarified that the right to counsel of choice does not extend 

to indigent defendants with appointed counsel. 

The trial court here provided defendant with appointed appellate counsel to assist 

in seeking access to first-tier review. Halbert’s requirements were thereby met. 

Defendant, acting of his own volition, then sought counsel’s withdrawal. The trial court 

correctly ruled that “there is no rule in state or federal law which mandates the 

appointment of two or more appellate counsel to represent an indigent defendant at 

public expense.” I would therefore deny defendant’s application for leave to appeal in 

this Court, because Halbert does not entitle an indigent defendant to appointed appellate 

counsel of his choosing. 

s0725 

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. 

July 28, 2006 

Clerk