People v. Reed
People v. Reed
Opinion of the Court
This case involves a prosecutor’s appeal from the trial court’s grant of defendant’s postappeal motion for relief from judgment brought under MCR 6.500 et seq. (subchapter 6.500). In granting the motion, the court ruled that defendant was entitled to a new trial. Pursuant to our order granting leave to appeal, we instructed the parties to address the issue concerning this Court’s jurisdiction with regard to the prosecutor’s application for leave to appeal.
On August 1, 1983, defendant was convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, assault with intent to murder, MCL 750.83; MSA 28.278, assault with intent to rob while armed, MCL 750.89; MSA 28.284, and pos
i
The prosecutor asked this Court for leave to appeal the order granting defendant’s motion for relief from judgment.
To circumvent the holding in Cooke prosecutors attempted to file complaints for superintending control to contest orders granting a new trial. In In re People v Burton, 429 Mich 133; 413 NW2d 413 (1987), the Court further limited the ability of a prosecutor to contest the granting of a new trial by holding that this Court lacked jurisdiction to issue an order of superintending control to grant the prosecutor’s request for reversal of the trial court’s decision granting the defendant a new trial. Under MCL 770.12; MSA 28.1109, the order granting a new trial to a defendant was not appealable, and the order of superintending control was an improper means of granting appellate review when an appeal was not provided by general law.
In 1988, the Legislature amended MCL 770.12; MSA 28.1109 to broaden the authority of prosecutors to appeal. 1988 PA 66. As a result of the amendment, prosecutors were given authority to appeal orders granting a new trial in cases where the crime occurred on or after March 30, 1988.
In this case, however, defendant proceeded under the postappeal relief procedures of subchapter 6.500. The prosecutor contends, therefore, that MCL 770.12; MSA 28.1109 is inapplicable and that appeals are governed by the specific appeal procedures provided in subchapter 6.500. We agree.
MCL 600.308; MSA 27A.308 defines the jurisdic
(2) The court of appeals has jurisdiction on appeal from the following orders and judgments which shall be reviewable only upon application for leave to appeal granted by the court of appeals:
(d) Such other judgments or interlocutory orders as the supreme court may by rule determine.
The postappeal relief procedure of subchapter 6.500 specifically provides for the availability of an appeal from decisions under the subchapter. MCR 6.509 provides that "decisions under this subchapter are by application for leave to appeal to the Court of Appeals pursuant to MCR 7.205.” The rule does not limit the availability of an appeal to a defendant. Thus, this Court has jurisdiction to review the trial court’s order granting defendant relief from judgment. MCL 600.308(2)(d); MSA 27A.308(2)(d); MCR 6.509(A).
People v Brown, 196 Mich App 153; 492 NW2d 770 (1992), involved a prosecutor’s appeal from the Detroit Recorder’s Court’s grant of the defendant’s postappeal motion for relief from judgment brought under MCR 6.500 et seq. The underlying crime occurred on September 20, 1987. This Court treated the prosecutor’s application for leave to appeal as a complaint for superintending control. The defendant sought leave to appeal. The Supreme Court denied leave to appeal, holding:
It was improper for the Court of Appeals to exercise superintending control jurisdiction under the circumstances of this case. In re Burton, 429 Mich 133 (1987). However, it is noted that an application for leave to appeal was available to the prosecutor. MCL 600.308(2)(d); MSA 27A.308(2)(d);*645 MCR 6.509(A). The Court of Appeals should proceed with this matter as on leave granted rather than as superintending control. [439 Mich 1010 (1992).]
II
Having concluded that this Court has jurisdiction over the prosecutor’s appeal, the question before us is whether the trial court properly granted defendant’s motion for relief from judgment and awarded him a new trial. Generally, the grant of a new trial is reviewed for an abuse of discretion. People v Bradshaw, 165 Mich App 562, 566-567; 419 NW2d 33 (1988). However, MCR 6.508(D)(3) imposes limits on the trial court’s grant of a postappeal motion for relief from judgment. That rule provides in pertinent part as follows:
The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion
(3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior motion, and
(b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, "actual prejudice” means that,
(i) in a conviction following a trial, but for the alleged error, the defendant would have had a reasonably likely chance of acquittal.
In this case, the trial court granted defendant’s motion on the ground of ineffective assistance of
To establish a claim of ineffective assistance of counsel at trial, the defendant must show that counsel’s performance was deficient and that, under an objective standard of reasonableness, counsel made an error so serious that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment. The defendant must also overcome the presumption that the challenged action might be considered sound trial strategy. Second, the deficiency must be prejudicial to the defendant. Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). We conclude that this same standard also applies when analyzing claims of ineffective assistance of appellate counsel.
An appellate attorney’s failure to raise an issue may result in counsel’s performance falling below an objective standard of reasonableness if that error is sufficiently egregious and prejudicial. However, appellate counsel’s failure to raise every conceivable issue does not constitute ineffective assistance of counsel. See Jones v Barnes, 463 US 745; 103 S Ct 3308; 77 L Ed 2d 987 (1983). Counsel
In this case, defendant labeled his appellate counsel "ineffective” eight years after the appeal of his conviction in an attempt to establish "good cause” for failing to raise additional issues in his appeal as of right. In light of appellate counsel’s decision to raise two arguments in the appeal as of right, we do not think that it can seriously be maintained that the decision not to press unpreserved issues (or issues relating to trial counsel’s failure to object) on appeal was an error of such magnitude that it rendered appellate counsel’s performance seriously deficient under the Strickland test. Defendant has failed to overcome the presumption that appellate counsel’s decision regarding which claims to pursue might be considered sound appellate strategy.
The trial court erred in granting defendant’s motion for postappeal relief. Therefore, we vacate the trial court’s order granting defendant relief from judgment and a new trial and instruct the court to reinstate defendant’s convictions and sentences. We do not retain jurisdiction.
Reversed.
Subchapter 6.500 of the Michigan Court Rules establishes the procedures for pursuing postappeal relief from criminal convictions. The suhchapter is the exclusive means to challenge a conviction in Michigan once a defendant has exhausted the normal appellate process.
Although the order granted "Defendant’s Motion for Relief from Judgment,” the actual effect of the order is to grant defendant a new trial.
The statute was amended by 1988 PA 66. The historical note to § 12 provides: "This amendatory act shall take effect March 30, 1988 and apply to crimes committed on or after that date.”
Because the ineffective assistance of trial counsel issue could have been raised in defendant’s appeal as of right, defendant cannot raise the issue as a ground for postappeal relief unless good cause for failure to raise the issue is shown. The trial court found that appellate counsel’s deficient performance in failing to raise the issue constituted good cause. However, the trial court did not determine that defendant suffered "actual prejudice” as a result of appellate counsel’s failure to raise the issue of ineffective assistance of trial counsel.
See, e.g., Smith v Murray, 477 US 527, 535; 106 S Ct 2661; 91 L Ed 2d 434 (1986).
Where appellate counsel has perfected an appeal on behalf of a defendant, it is unlikely, in the absence of testimony of appellate counsel, that the defendant would be able to establish that appellate counsel’s failure to raise particular issues was the result of deficient performance as opposed to strategy.
Although the trial court concluded that the issues raised by defendant in his motion for postappeal relief may be meritorious, appellate counsel did not have the benefit of the trial court’s hindsight at the time of the original appeal.
The process of "winnowing out weaker arguments on appeal and focusing on” those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v Barnes, supra at 751-752. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Strickland, supra at 689.
Concurring Opinion
(concurring in part and dissenting in part). I agree with the majority opinion with regard to the jurisdiction of the Court of Appeals to hear the prosecutor’s appeal. I disagree with my colleagues regarding the question whether there was ineffective assistance of appellate counsel, not because the opinion is incorrect, but because I believe it is premature. I agree that there would be no valid claim of ineffective assistance of appel
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