Michigan Supreme Court 

# Order

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 Musk egon Circuit Court’s September 22, 2005 order denying defendant’s motion for appointment of new appellate counsel. We REMAND this case to the Muskegon Circu it Court for a determination of whether defendant is indigent and, if so, for the appointme nt of appellate counsel. Halbert v Michigan, 545 US __; 125 S Ct 2582; 162 L Ed 2d 5 52 (2005).

Appellate defense counsel’s March 2, 2005 motion to withdraw as appellate
counsel and for substitute counsel represented that d efendant had requested his
withdrawal and that he and d efendant 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 wit hdraw his plea at his sentencing, which was denied by the Court. At se ntencing, trial counsel objected to the scoring of some disput ed guidelines; some obj ections were granted and others were denied. As such, this case could have proceeded to the Court of Appeals on the denial of the mo tion to withdraw and on the guidelines

issue but for this new issue over the habitual offender notice . Yet now, appellate counsel is conf ronted 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].2

Thus, the March 14, 2005 circu it court order that granted co unsel’s motion to withdraw
but denied his and defendant’s pro se requests for substitute a ppellate 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 circumstan ces inapplicable here. MCR 6.302(B)(6), 466 Mich lxxxiv

lxxxv (2002); MCR 6.425(E)-(F ), 461 Mich cxcix-ccix (20 00); and MCL 770.3a(1)-(2). Therefore, the September 22, 2005 circuit court order impr operly denied defendant’s
post- Halbert motion for appointed appellate counse l by erroneously finding that “[o]n March 14, 2005, the Court granted appellate counsel’s motion to w ithdraw on the ground
that he did not want to file a frivolou s appeal and defendant demanded substitute appellate counsel.” Even if the March 14, 2005 order was sustainabl e under then-extant authority, Halbert abrogated that authority and defendant was thus de prived of his right to appointed appellate counse l 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 appropriat e postconviction motions in the trial court, within twelve
months of the date of the circuit court’ s order appointing couns el, as, at the time defendant was denied counsel, he was entitled to file pleadi ngs within twel ve months of sentencing rather than six months. See th e former versions of MCR 7.205(F)(3), MCR 6.311, and MCR 6.429.

We do not retain jurisdiction.

C ORRIGAN , J., dissents and states as follows:

I respectfully dissent fro m the majority’s decisi on to remand the case for appointment of substitute appellate counsel . When the court appointed appellate counsel, defendant received th at 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. Indi gent defendants who receive appointed counsel do not have the right to counsel of their choi ce. This Court should refrain from recognizing a right that simply does not exist.

The trial court appointed Steve Rame y 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-offen se habitual offender. Defe ndant wished to appeal the sentence enhancement, believing that it was flawed. The felony information listed a
1993 conviction that defendant claime d had never occurred. Because the 1993 conviction was irrelevant, gi ven defendant’s three other unc ontested felonies, Ramey, in the exercise of his professional judgment, dec lined to raise the se ntence enhancement as an appellate issue. Defendant then insist ed that Ramey withdraw from representing him._______________________________________ __ 3

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 substitu te appellate counsel under Halbert . The trial court granted Ramey’s motion to withdraw, but de nied 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, co nvicted on their pleas, who
seek access to first-tier review in th e Michigan Court of Appeals.” Halbert

, supra , 125
S Ct 2586. As Halbert required, the trial court here provi ded 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 subseque nt Supreme Court opinion.
Halbert said nothing about a right to more than one appointed appellate counsel. And the Supreme Court has since rei terated that “an element of [the Sixth Amendment right to counsel] is the right of a defendant who does not requir e 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 th e right to counsel of choice does not extend to indigent defendants with appointed counsel.

The trial court here provided defendant wi th appointed appellate counsel to assist in seeking access to first-tier review. Halbert ’ s requirements were thereby met. Defendant, acting of his own vo lition, 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 a ppellate counsel to represent an indigent defendant at public expense.” I would therefore deny defenda nt’s application for leave to appeal in this Court, because Halbert does not entitle an indigent d efendant to appointed appellate counsel of his choosing.

s0725 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.

July 28, 2006

Clerk