Order

By order of December 21, 2009, the defendant's former appellate counsel was directed to file a supplemental brief. On order of the Court, the brief having been received, the application for leave to appeal the May 5, 2009 order of the Court of Appeals is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for reconsideration of the defendant's January 20, 2009 application for leave to appeal under the standard applicable to direct appeals. The defendant's former appellate counsel acknowledges that he failed to file an application for leave to appeal from the defendant's plea-based conviction. Accordingly, the defendant was deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Peguero v. United States, 526 U.S. 23, 28, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999).

Costs are imposed against the defendant's former appellate attorney, only, in the amount of $250, to be paid to the Clerk of this Court.

We do not retain jurisdiction.

CORRIGAN, J. (concurring).

I concur in the order requiring the Court of Appeals to reconsider the defendant's application for leave to appeal because he was deprived of the effective assistance of appellate counsel. I would also refer his appellate attorney, David M. Hartsook, to the Attorney Grievance Commission to investigate Hartsook's failure to successfully pursue the appeal.