Motion to reissue the judgment of sentence & restore appellate rights; MCR 6.428; Distinguishing People v Tardy; Failure to comply with requirements in effect at the time of defendant’s plea & sentencing; Former MCL 770.3a(4); MCR 6.302(B); MCR 6.425(E)(2); Halbert v Michigan; Effect of defendant’s pursuit of collateral proceedings

Concluding that defendant “was denied the appointment of appellate counsel, and effectively the opportunity for counseled first-tier appellate review, because of court error or other factors outside his control[,]” the court held that the trial court abused its discretion in denying him relief under MCR 6.428. Thus, it vacated the trial court’s order and remanded for entry of an order restarting the time for him “to file an application for leave to appeal or request appellate counsel under MCR 6.428.” The court found that the “trial court failed to comply with several requirements in effect at the time of” his 2004 plea and sentencing, including those in former MCL 770.3a(4), MCR 6.302(B), and MCR 6.425(E)(2). And these omissions were “not merely technical. MCR 6.428 does not require a defendant to prove that a timely application for leave to appeal would have succeeded. It requires a showing that the defendant was denied appellate review or the appointment of appellate counsel because of court error, attorney error, or another factor outside defendant’s control. [He] was not told at the plea hearing that he was waiving the assistance of appointed counsel to file an application for leave to appeal. He was not told at sentencing that he could file an application for leave to appeal. And the record is devoid of evidence that he was given the required appellate form at sentencing. The [trial] court’s omissions occurred at the exact points in the proceedings when defendant was entitled to receive the information necessary to pursue first-tier appellate review.” The court rejected the prosecution’s argument that he could “not establish causation because the circuit court administrator’s office later mailed him appellate-counsel forms in” 7/05. While the letter was important, it did “not cure the errors at plea and sentencing.” The court concluded that defendant showed “he was denied the appointment of appellate counsel because of court error or another factor outside his control. The trial court’s failure to advise [him] properly at the plea and sentencing hearings triggered the problem. [Its] later failure to appoint appellate counsel or process [his] asserted request during the still-open appeal period completed it.” As to his later motion for relief from judgment and pursuit of federal habeas relief, those “collateral proceedings were not the appellate review contemplated by MCR 6.428.”