Order Michigan Supreme Court 

Lansing, Michigan 

October 17, 2008 Clifford W. Taylor,

 Chief Justice 

136379 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, 

Robert P. Young, Jr. 

Stephen J. Markman, 

Justices 

v SC: 136379 

 COA: 284367 

Jackson CC: 99-094110-FC 

NATHAN JON WYATT,

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the April 17, 2008 order 

of the Court of Appeals is considered, and it is DENIED, because we are not persuaded 

that the questions presented should be reviewed by this Court. 

MARKMAN, J. (concurring). 

Defendant pleaded no contest to three counts of first-degree criminal sexual 

conduct, and the Court of Appeals denied his application for leave to appeal. The dissent 

concludes that we “should grant leave to appeal to determine whether defendant is 

entitled to an appeal as of right.” However, because defendant has never even attempted 

to file an appeal as of right, I do not believe this issue is even before this Court. 

Moreover, even if it is, I do not believe that defendant is entitled to such an appeal. 

Proposal B, which eliminated appeals of right in plea cases, became effective on 

December 27, 1994. Defendant’s own confession establishes that at least some of his 

sexual assaults occurred long after this date. Further, the Court of Appeals has already 

considered the merits of defendant’s issues and found them “lack[ing] of merit.” Finally, 

although the prosecutor "begrudgingly" recommended that this Court remand to the 

Court of Appeals, defendant is not thereby entitled to an appeal of right. For these 

reasons, I concur in the order denying leave to appeal. 

CAVANAGH, J., would remand this case to the Court of Appeals for consideration 

as on leave granted. 
 

 

 

2

 KELLY, J. (dissenting). 

The Court should grant leave to appeal to determine whether defendant is entitled 

to an appeal as of right. 

This case involves the effect of Proposal B. In November 1994, the people of 

Michigan ratified Proposal B, which amended the Michigan Constitution to limit criminal 

appeals and was intended to reduce the burden imposed by plea-based convictions on the 

appellate system. Before December 27, 1994, the Michigan Constitution afforded a 

criminal defendant an appeal as of right from any conviction.1

 After Proposal B passed, a 

defendant no longer had an appeal as of right if he or she had pleaded guilty or no contest 

to a criminal charge. Under these circumstances, an appeal could be heard only if the 

Court of Appeals granted leave to appeal. 

 In 1999, defendant pleaded no contest to a series of offenses that occurred “on or 

about” November 1994 through May 1995. He timely requested appellate counsel after 

his sentencing. Unfortunately for him, a court clerk misfiled his request, and it sat 

unanswered for 8 1⁄2 years. The circuit court finally found and acted on the request in 

2008.2 

The dates of the offenses for which defendant pleaded no contest straddle the 

cutoff date for appeals of right. It is not clear whether Proposal B applies to offenses that 

occurred both before and after the December 27, 1994, cutoff date. No caselaw has 

addressed this issue. Under circumstances such as these, courts traditionally apply the 

rule of lenity, mitigating the effects of the unclear law.3 “This rule of narrow 

construction is rooted in the concern of the law for individual rights, and in the belief that 

fair warning should be accorded as to what conduct is criminal and punishable by 

deprivation of liberty or property.”4 

1

 Const 1963, art 1, § 20. 

2

 Presumably defendant would have filed an appeal as of right in this case had the court 

clerk not “lost” his request for the appointment of appellate counsel. As it is, by the time 

counsel was appointed, defendant no longer had that option. Hence, it is unfair to him for 

Justice Markman to suggest that, because defendant never attempted to file an appeal as 

of right, the issue is not before the Court. Had defendant filed an appeal as of right 8 1⁄2 

years after sentencing, the Court of Appeals surely would have denied it out of hand. 

3

 See People v Denio, 454 Mich 691, 699-700 (1997). 

4 Huddleston v United States, 415 US 814, 831 (1974), citing United States v Wiltberger, 

18 US (5 Wheat) 76, 95 (1820). 
 _________________________________________ 

 

3 

Hence, it appears that defendant in this case may be entitled to an appeal as of 

right. Both defendant and the prosecutor urge this Court to recognize that right. After 

the Court of Appeals denied defendant leave to appeal, the prosecutor continued to 

recommend granting him an appeal as of right, and urged this Court to so rule “to be 

safe.” We should not ignore the prosecutor’s admonition for caution. Defendant’s plea 

was for conduct occurring, in part, before the cutoff date of Proposal B. Given the 

likelihood that Proposal B does not apply in this case, the Court should grant leave to 

appeal to resolve this question. 

s1014 

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. 

October 17, 2008 

Clerk