Motion to restore appellate rights; MCR 6.428; Whether a newly amended or adopted court rule applies; MCR 1.102; Reitmeyer v Schultz Equip & Parts Co, Inc; Retroactivity; Right to appellate review under MCR 7.204(A)(2)(d); Scope of an appointed appellate lawyer’s representation; MCR 6.425(G)(2)

Holding that “under the facts and circumstances of this case, MCR 6.428 provided for the restoration of defendant’s appellate rights,” the court reversed the trial court’s order denying his motion to restore those rights, and remanded. He was convicted of CSC I. The trial court ultimately denied his motion for relief from judgment. The court denied his first appeal, finding he failed to show that the trial court erred. He then moved in the trial court for restoration of his appellate rights under MCR 6.428. The trial court denied his request, noting his reliance on MCR 6.428 was misplaced. In this appeal, the court agreed with defendant that the trial court erred by denying his motion under MCR 6.428 to restore his appellate rights because, through no fault of his own, he lost his right to appellate review. He noted that “his appellate counsel withdrew his claim of appeal with the intent to supplement or adopt defendant’s pro se motion for new trial, but then failed to timely notice, supplement, or adopt the motion for new trial, resulting in the loss of his right to appellate review.” The court first found that MCR 6.428 applied retroactively. “Defendant did not act or fail to act in reliance on the previous version of MCR 6.428 and the application of the current version of MCR 6.428 is feasible and will not work an injustice on the parties.” It then found that the trial court erred by concluding that defendant’s reliance on MCR 6.428 was misplaced. “Defendant’s prior appellate counsel engaged in an act that constituted an imprudent deviation from motion practice and an act based on mistake, ignorance, deficiency, or accident that departed from or failed to achieve what should have been done, the filing of a timely amended motion for new trial that would have preserved defendant’s right to appellate review under MCR 7.204(A)(2)(d). Defendant’s prior appellate counsel, therefore, committed an error within the purview of MCR 6.428.” Because of counsel’s errors, defendant was denied the right to appellate review, and was thus “entitled to have his appellate rights restored.” Finally, the court found that the trial court erred by concluding that defendant “bore the burden to seek adjudication of his motion for new trial and by not doing so abandoned the motion. That responsibility, however, belonged to prior appellate counsel whose failure to properly and timely pursue defendant’s motion for new trial constituted an error that denied defendant his right to appellate review.”