*1 535 1969] v. MENOMINEE CIRCUIT JUDGE. JENSEN op the Decision Court.. Proceedings— Appeal Indigents.—Postconviction
1. and Error — ’ op op Repeal Court Rule. Assistance Counsel — counsel who had been Order indigent appointed and delayed appeal, to take a which order of allowing ap- ment had been entered on same court rule indigents posteonvietion pointment of counsel for proceedings (GCR 1963, 785.4). is
Separate Opinion. J., C. Kelly, Dethmers and JJ. Indigents—Assistance Law —Constitutional Law —
2. Criminal op Counsel. right has a accused crime An (US to assist in his Const Ams defense n 14; 30). Mich art Const § Appeal and 3. Law. Error —Criminal Law —Constitutional right timely appeal, grarited by which was take persons 1963 to is not ret- Constitution of of crimes>(cid:127) (Const 1963, 1, 30). roactive art § por References Points Headnotes (cid:127) 2d, Appeal Jur Error. 345-347.. Am §§ £1] 2d, Am Criminal Law 321. Jur 2d, 318, 319. 21 Am Jur Criminal Law £2] §§ 2d; Appeal 4 Am Jur 4 Am Jur and Error 300. §§ £3] and Error n 2d, Appeal 1. '[4] 2d, [5, 21 Am Jur Criminal Law 318-322. §§ 6] 2d, Appeal Error Am 345-347. Jur §§ 2d, Appeal Error 1011.' 5 Am Jur [7] [8, (cid:127) 2d, Appeal 4 Am 345. Jur and Error § Appeal op —Constitutional Law —Freedom Same —Leave Speech to Bedress Grievances. —Petition apply right allied with the speech petition and the redress freedom of grievances. *2 Delayed Appeal Same —Leave to Take 5. —Constitutional Law —(cid:127) Appointment op Counsel. Indigents delayed convicted crime who seek leave to a take of appeal pur- have counsel at for pose preparing filing application delayed their and to take a of appeal, although Supreme may appoint Court coimsel preparation application in a where convinced of formal probable orderly presenta- merit and is a desirous of tion of (GClt 1963, 785). Delayed Appeal Indigent—Appointment op Counsel — n 6. Same — — op Discretion Court. appointment appellate Revocation indigent counsel an of of for purpose preparing filing and an to take for of delayed appeal held, not an trial abuse court’s discre- of tion, indigent fairly where the was convicted Ms voluntary plea guilty taking indecent liberties with a of of 14-year-old girl nothing suggests in the record a miscar- riage justice rights (CLS or denial of of fundamental 750.336; 1963, 785). GGR Delayed Appeal 7. Costs — —Constitutional Law. No appeal costs are on allowed order of of superintending control a circuit to reinstate his appointing order counsel for of an indigent take for taking who was 14-year- indecent liberties with a of girl, old where Court reverses order of Appeals (CLS 1961, 750.836; 1963, 711, 785). GCR
Separate Opinion. T. M. Kavanagh, — Indigents — n Equal Appeal — 8. and Error Judicial Beview Protection. “Equal protection” judicial says means what it in the area of review; thus, buy what one can man with his wealth afford cannot be denied poverty, to another because and there justification judicial is no stopping machinery where indigent. Indigents—Appointed Repeal Rules — Counsel —Court Same — 9.. n —POSTCONVICTION PROCEEDINGS. though necessary legally to the administration even- Sven providing justice poor, the rule court to both rich handed ' postconviation pro- counsel for ceedings indigent persons convicted and sentenced behalf hence, repealed; August an order was revoking appointment counsel trial cowrt 1,1964, August proper convicted before appointed the the court such same as where indigents allowing appointment appellate counsel rule 785.4). repealed (GGB 1963, postconviction proceedings was Appeals, Appeal Quinn, Division from Court MeG-regor, Kavanagh order JJ., P. and T. J., G-. February superintending granting control. Submitted 51,934.) (Calendar Docket No. 3,No. 4, Decided October super- sought Eugene order of Arthur Jensen *3 intending Brown, circuit Ernest control W. judge county his Menominee, the to reinstate granted appointing Order counsel for Jensen. order judge by Appeals. circuit Defendant the Court of appeals. order and set aside. propria persona.
Eugene Jensen, Arthur Bradley, Prosecuting Attorney, W. Bussell judge. Menominee circuit C. J. Brennan,
The Case.
This case involves the prepara- for tion of an in the convict assist him for leave to E.T. Eugene The Arthur facts these. Jensen January 18, 1961, Wausaukee, on arrested Wis- county jail. consin, and taken to the On Marinette day, following he extradition and was waived county turned over to Menominee sheriff. complaint A was filed warrant on issued January charging 20th, his on before years age, arrest, who Jensen, was 28 had com 14-year-old girl, mitted an to taking on a assault with intent rape charged her.1 A second count Jensen with girl. indecent liberties with the January, brought On the 23d of Jensen was judge arraigned before the circuit upon charges containing information same prosecutor as the warrant. The the informa- read again tion to He Jensen. read it himself. The advised Jensen necessary. if Jensen said counsel, attorney. judge explained he did not want charged in the difference between the two counts pled guilty information. Jensen not charge attempted charge rape, guilty taking indecent liberties. judge explained charge of indecent liber- ties in common terms, twice told the accused that penalty years, the crime carries maximum of 10 carefully interrogated him the voluntari- plea. ness of his
Finally, plea accepted, receiving after presentence report, the court sentenced February imprisonment The sentence was years. for not less than nor more than 10 *4 appealed, The conviction was not Jensen was judgment confined accordance with the of the court. CLS CLS 1961, 1961, 750.85 750.336 (Stat (Stat Ann Ann 1962 1954 Rev Rev § 28.280).—Reporter. 28.568) .—Reporter. Jensen Brennan, C. J. E.
Phase Two. years after the three than In June was expiration sentence, minimum Jensen of his request Marquette. He then filed a still confined requesting appellate appointment counsel, for the plea transcript arraignment he a of his that expense. provided him at provided, transcript .8,1967, and on June The judge appointed circuit Jensen, point, June novel turn. On matters took At this ap- appointment of Jensen’s of the 8, 1967, the repealed all pellate counsel, 1963, 785, and reinstated to OCR the amendments promulgated originally 1963.3 it was rule as (OCR provision Repealed of Rule 785 that appointment 785.4[2]) which proceedings postconviction appellate counsel for of on indigent persons convicted and sen- behalf August prior 1964.4 to circuit tenced July thereupon, judge Appellant appointment Jensen’s 1967,revoked for leave to take No counsel. appeal appellee’s filed on behalf. was ever sought from the then received superintending Appeals, an order control, to reinstate the the circuit granted of counsel. ment We review judge. order, Issues. indigent defendant, First: Whether coun- 3 4 xxx. 379 Mich (379 repealer xxx, xxxi), provided: resolution 1963, 785, January adopted “The various of OCR since amendments * * * effective instanter. *5 382 540 Micii Opinion appli- an for the sel delayed appeal. cation to take all circumstances Second: Whether dis- the trial court’s case, this there was abuse of cretion in counsel. Eight to Counsel. By Michigan the laws of Constitution the United accused of a crime States, right has a to be counsel 5 to his defense. of a the Constitution or statutes State
Where grant person right appeal, to to a convicted remedy pursue postconviction other some held merits, the States Court has United guarantee equal that the Fourteenth Amendment protection requires indigents.6 of counsel
Prior to 1963, the Constitution of the conviction right Michigan of a criminal offense in of carried no appeal. persons Since that time, convicted right timely appeal, crimes have a and, take a necessary, where the assistance of counsel appointed.7 are
But the 1963 constitutional
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free discretion itself to the addresses reviewing court. prevent power convicts without Courts free- asking Their convictions. review of their *6 speech of to freedom is allied dom to ask to he heard grievances. petition for redress of the to and. require equality speech not of does But freedom of right the means of communication. forum, or of may petition grievances be of to for redress grandly humbly of the the means exercised as petitioner, popularity of or the dedica- cause, the his may may permit. Appeals be tion adherents appeals sought interlocutory delayed orders, may urged, Fed- and eral habeas countless motions State
corpus applied asked, certiorari for, stays requested. presentation
Equality not the measure is infrequently, equal most Not consideration. greatest appeal grace. petition humble spuri- multiple pleas rich often, the Too ous. granted, is course, leave
When sup- counsel is desirable should be assistance of necessary. plied where And cer- at suggest tainly nothing here said should power appoint does not have the preparation of formal in the probable appeal, it convinced of where leave orderly presentation. and desires '& merit, to counsel But there is . indigents who seek leave to oe
Abuse Discretion. transcript of the in A review this case satisfies fairly us that Mich. Opinion by T. E. 0. J. voluntary plea guilty. nothing There is in the suggesting any justice miscarriage record or de- rights. nial of fundamental Under these circumstances there was no abuse of revoking the trial discretion in court’s ment of counsel. Appeals, directing
The order of the the ap- to vacate his order pointment counsel is and set aside. No costs. and Kelly, JJ., concurred with Dethmers
Brennan, Adams, JJ., in concurred the result. Black {concurring result). M. Kavanagh, I merely concur the result because the trial court is following policy adopted by implicit this Court repeal in the of GrCR1963, 785.4. *7 judicial
However, the same attitude which moved People me to Mallory (1967), concur in v. 378 Mich expressed, 538,and I (1969), which Inin re Hoffman compels express Mich my continuing me to GrCB, repealing dissatisfaction to the 1963, 785.4. legalistic We are para- not here concerned with a i.e., discretionary whether a dox— permanent can ever right— strictly constitute substantive but rather liberally whether we shall or “equal protection.” construe the term my opin- In “equal” just ion, says the term means what it judicial area of review; and what one man can afford buy by his wealth cannot be denied to another simply by poverty. virtue of his Judicial concern vigilance against with spurious appeals by the popular powerful clog defendant, which justice, justification wheels o'f completely Opinion, M. T. Kavanagh, the judicial machine stopping where the is indigent.
I have considered always GrCR 1963, 785.4(2) be not only desirable, but also legally necessary to administration even-handed justice to both rich and poor alike. I
Although must recognize the fact that GCR 1963, 785.4, been repealed by order of this Court, I cannot subscribe to the policy underlying re- pealer and, as manifested by this its case, attendant consequences. I Therefore, concur in the result only. G. J., did not sit. Kavanagh,