Motion for restoration of appellate rights under MCR 6.428; People v Byars; Invalid affidavit; Judgments of sentence (JOS)

On remand from the Supreme Court, the court held that the trial court did not abuse its discretion in denying defendant-Green’s motion to restore his appellate rights under MCR 6.428. In 2020 he pled guilty to armed robbery in two different cases. He later requested “appointment of an attorney to represent him in” filing an application for leave. The trial court appointed an attorney (K) to represent him but no appeal was ever filed. Green filed his motion to restore pro se about four years later. He contended that K “should have filed an appeal and that his appellate rights should be restored because [K] neglected to file an application for leave to appeal.” But Green did not present any evidence that he asked K “to pursue an application for leave to appeal after the entry of his” JOS. As the trial court recognized, Green asserted that he retained another attorney (R) to seek the appeal. Given this record, Green did not show “any errors or omissions by [K] that barred him from filing an appeal.” The court held that, as to R, “the trial court properly determined that Green failed to provide proof that there was ever an attorney-client relationship between” them. He did not offer “such evidence with his motion for restoration of his appellate rights, and there was no proof of a notice of appearance or a motion to substitute counsel.” The court found the record did “not support Green’s contention that [R] was responsible for filing an application or that Green even took the necessary steps for [R] to file an application for leave to appeal on his behalf.” While Green attached a purported affidavit to his delayed application, the document was not signed by him or notarized, so it was not a valid affidavit. The court added that, even to the extent it was considered, it did “not establish that Green requested either” R or K to file an application for leave to appeal. The court concluded that his “lack of an appeal was the product of his own actions, and not the fault of counsel or some factor outside of defendant’s control.” Affirmed.