PEOPLE v BULGER
Docket No. 112694
Supreme Court of Michigan
July 18, 2000
Argued October 14, 1999 (Calendar No. 9).
462 Mich 495
In an opinion by Justice CORRIGAN, joined by Chief Justice WEAVER, and Justices TAYLOR and YOUNG, the Supreme Court held:
Neither the state nor the federal constitution requires the appointment of counsel under the circumstances of this case.
1. Following the amendment of
2. The Supreme Court has consistently held that use of the phrase “provided by law” in the Michigan Constitution contemplates legislative action. Where action by this Court pursuant to its rulemaking powers is contemplated, the constitution explicitly so provides. Given the use of the phrase in
3. The federal constitution does not require the states to provide any appeal whatsoever to criminal defendants. No authority recognizes the right to appeal a plea of guilty as a fundamental right. Under the due process-equal protection test of Ross v Moffitt, 417 US 600 (1974), Michigan‘s scheme gives guilty-pleading defendants a fair opportunity to have their claims heard in appellate courts. Further, the state‘s current arrangements for inmate access to the courts satisfy the so-called right to meaningful access. Thus, Michigan‘s scheme does not offend the Fourteenth Amendment.
4. Appeals from plea-based convictions and appeals from convictions obtained following trials are fundamentally different. A defendant who tenders a plea has admitted guilt of the offense in open court. A guilty plea represents a break in the chain of events that has preceded it in the criminal process. A criminal defendant may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred before the entry of the guilty plea. Further, the state has a fundamental interest in the finality of guilty pleas. A guilty plea evidences a defendant‘s desire to terminate the prosecution. Thus, a defendant who concedes his guilt has acceded to the state‘s fundamental interest in finality. Plea proceedings are also shorter, simpler, and more routine than trials. The record most often consists of the factual basis for the plea that is provided to the trial court. In contrast with trials, there is less danger in plea cases that the record will be so unclear or the errors so hidden that the defendant‘s appeal will be reduced to a meaning-
5. Michigan court rules require trial counsel to assist the defendant in organizing and presenting to the trial court any potential appellate issues that warrant preservation. Accordingly, a pro se defendant seeking discretionary review will have the benefit of a transcript, trial counsel‘s framing of the issues in the motion to withdraw, and the trial court‘s ruling on the motion. Further, prison inmates filing discretionary applications will have the same access to law libraries, paralegal assistance, and staff attorneys that Michigan provides to them in other postconviction proceedings. The fact that a particular service might be of benefit to an indigent defendant does not mean that it is constitutionally required. The Fourteenth Amendment does not require absolute equality or precisely equal advantages, nor does it require the state to equalize economic conditions.
Vacated and remanded.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that as a matter of federal constitutional law, indigent defendants who have pleaded guilty must have counsel appointed to assist them on appeal by leave, their first and only appeal on the merits.
In Griffin v Illinois, 351 US 12 (1956), the United States Supreme Court held that a state may not grant appellate review in a way that discriminates because of poverty or financial status. It passed directly on the right to appointed counsel on appeal in Douglas v California, 372 US 353 (1963), concluding that, where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, an unconstitutional line has been drawn between rich and poor. In Ross, the Court noted that, rather than providing an absolute rule, Douglas offers a scale against which other procedures can be measured. The focus of Ross was whether the materials available to an indigent defendant, without the basis of counsel, would be adequate to allow a court to determine whether to grant further review.
In this case, an indigent defendant is faced, by law, with only the ability to apply for leave to the Court of Appeals, and is required to do so without the benefit of appointed counsel. The Court of Appeals would have no brief, or even an identification of issues, by any counsel for the defendant, and nothing in the way of an opinion of the court below on any substantive matters. Rather, it would have only the record before it, along with whatever submissions the defendant might make pro se. Thus, it can be concluded that the instant scheme is invalid under Ross by virtue of its failure to
A correct adjudication of guilt involves more than just an admission of guilt. Michigan has long recognized that a mere admission of guilt, even if accompanied by an absolute and all-knowing certainty, is but one component of a correct adjudication of guilt under our system. Even though an indigent defendant pleads guilty, constitutional defects that are irrelevant to factual guilt still may be appealed, as may sentencing decisions. Nonetheless, the majority concludes that guilty pleas are so simple, no counsel will ever be necessary for an indigent defendant who wants to appeal. Indigent Proposal B defendants will have nothing comparable to the tools the defendant had in Ross, leaving them to have only a meaningless ritual rather than a meaningful appeal. By denying counsel to indigent defendants, the majority commits structural error, which presumptively results in prejudice.
Justice MARKMAN took no part in the decision of this case.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Henry G. Marsh, Special Prosecutor, for the people.
State Appellate Defender (by David A. Moran) for the defendant-appellant.
Amici Curiae:
Terence R. Flanagan for Michigan Appellate Assigned Counsel System, Michigan Defender Offices, Criminal Defense Attorneys of Michigan, and American Civil Liberties Union.
Kenneth M. Malkin for Michigan Defender Offices, Bay County Office of Criminal Defense, Elizabeth L. Church for Chippewa County Public Defender Office, Richard E. Hillary for Kent County Office of the Defender, Michael H. Lamble for Twenty-Sixth Judicial Circuit Office of Public Advocacy, Lloyd E. Powell for Washtenaw County Public Defender, and
Ronald J. Bretz for American Civil Liberties Union and Criminal Defense Attorneys of Michigan.
Michael J. Steinberg for American Civil Liberties Union.
Barbara R. Levine for Michigan Appellate Assigned Counsel System.
Brian L. Mackie, President, Gary L. Walker, Marquette County Prosecuting Attorney, and Terence E. Dean, Appellate Counsel, for Prosecuting Attorneys Association of Michigan.
John D. O‘Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for Wayne County Prosecutor‘s Office.
Stacy Hawkins, Interested Person.
CORRIGAN, J. We granted leave in this case to determine whether an indigent defendant is entitled to the appointment of appellate counsel at public expense when applying for leave to appeal a plea-based conviction. We hold that neither the state nor the federal constitution requires the appointment of counsel under these circumstances. Under our federalist scheme of government, Michigan remains free to decide the conditions under which appellate counsel will be provided where our state constitution commands that the mechanism of appellate review is discretionary.
Accordingly, we vacate the order of the Court of Appeals that remanded this case to the trial court for
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Defendant pleaded guilty in Saginaw Circuit Court on July 10, 1995, to possession with intent to deliver less than fifty grams of cocaine,
Defendant thereafter moved for the appointment of appellate counsel. The trial court appointed counsel to represent defendant for purposes of the motion and any resulting appeal. Following argument, the trial court denied defendant‘s motion in an opinion and order. The court noted that, in November 1994,
In denying counsel, the trial court reasoned that appointing counsel for every indigent defendant who seeks leave to appeal a plea-based conviction would defeat the purpose of Proposal B, which was to reduce costs and burdens on the criminal justice system arising from guilty plea appeals. It also observed that the need for counsel is less compelling in applications from plea-based convictions because the simplicity of the proceedings makes the process of identifying errors easier. The court further concluded that appointment of counsel was not constitutionally required. The court then reviewed the plea and sentencing proceedings in this case and, noting the lack of apparent error, denied defendant‘s request for counsel.
Defendant applied for leave to appeal the denial of his motion for appointed counsel. In lieu of granting leave, the Court of Appeals remanded the case to the
Najar neither requires the appointment of appellate counsel under
MCR 6.425(F)(1)(c) in every case, nor forecloses the ability of a trial court to exercise its discretion to appoint counsel underMCR 6.425(F)(1)(c) in any case in which it concludes that the defendant is in need of assistance to pursue an application for leave to appeal. [Unpublished order, entered July 21, 1998 (Docket No. 209031).]
In Najar, the Court of Appeals addressed the question presented in the instant case. The Court reasoned that while
raises any issue other than one relating to (1) the facial regularity of the plea-taking procedure, (2) the trial court‘s adherence to a sentencing agreement, (3) a plain correction of clerical error in court documents, such as a misspelling or a mathematical miscalculation, or (4) other instances absolutely devoid of merit . . . . [Najar, supra at 403-404.]
Following the order of the Court of Appeals remanding this case to the trial court for reconsideration in light of Najar, defendant sought leave to
II. HISTORY OF RELEVANT STATE AUTHORITIES
Before the ratification of the 1963 Michigan Constitution,
Before the ratification of Proposal B in 1994, Michigan was one of only a handful of states that provided an unconditional right of appeal for those who
The voters approved Proposal B by a margin of sixty-four percent to thirty-six percent. Id., p 431. As amended,
On December 30, 1994, this Court acted “to preserve the issue of appointment of counsel and payment therefor pending legislative clarification” because of “the absence of legislative action clarifying the Legislature‘s position regarding the right to appointment of counsel in guilty plea cases in light of the November 1994 amendment of
This Court extended the expiration date of the amended court rule on several occasions “in anticipation of legislation regarding the appointment of appellate counsel in guilty plea cases.” 455 Mich lxxx (1997). Concluding after several years of interim rules that the Legislature was not moving to address the problem, this Court extended the rule indefinitely. Id. In joining this Court‘s order, Justice BOYLE explained:
Absent legislative implementation of the constitutional amendment and consistent with our reluctance to prejudge legal issues through exercise of the rule-making power, we have entered four interim orders authorizing appointment of counsel in order to protect an indigent defendant‘s ability to have the assistance of counsel in pursuing appellate remedies.
We have therefore repeatedly sought clarification of the Legislature‘s understanding of the amendment to avoid imposing costs on local funding units through court rules, expressing concern that the Legislature‘s failure to act reflects Headlee considerations.
Every indication is that we have reached stalemate. Rather than deprive defendants of the assistance of counsel that the voters might not intend, I agree that the Court should extend the rules indefinitely. [Id., pp lxxx-lxxxi.]
While this case has been pending in this Court, statutory amendments were enacted requiring the appointment of appellate counsel in guilty plea cases in certain defined circumstances, permitting appointment in another, and otherwise providing that appellate counsel shall not be appointed. 1999 PA 200,
III. RIGHT TO COUNSEL UNDER CONST 1963, ART 1, § 20
We first address defendant‘s contention that
In every criminal prosecution, the accused shall have the right . . . to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have
such reasonable assistance as may be necessary to perfect and prosecute an appeal. [Emphasis added.]
We emphasize that, after the ratification of Proposal B, indigent defendants who plead guilty or nolo contendere are no longer entitled to appeal their convictions as a matter of right. Rather, they must apply for leave to appeal. Defendant contends that, when applying for leave to appeal, he is entitled to the appointment of counsel as “reasonable assistance” that is “necessary to perfect and prosecute an appeal.” A defendant, however, is entitled to “reasonable assistance” only when it is “provided by law” and “the trial court so orders.” As discussed below, we conclude that defendant has no right to appointed counsel under our state constitution because the appointment of appellate counsel for an indigent defendant applying for leave to appeal from a plea-based conviction was not provided by law at any relevant time in this case.
In construing our constitution, this Court‘s object is to give effect to the intent of the people adopting it. Charles Reinhart Co v Winiemko, 444 Mich 579, 606; 513 NW2d 773 (1994). “Hence, the primary source for ascertaining its meaning is to examine its plain meaning as understood by its ratifiers at the time of its adoption.” Id. Since the 1972 amendment,
The drafters of the 1963 Constitution used the phrase “provided by law” in several provisions. See, e.g.,
The committee on style and drafting of the constitutional convention of 1961 made a distinction in the use of the words “prescribed by law” and the words “provided by law.” Where “provided by law” is used, it is intended that the legislature shall do the entire job of implementation. Where only the details were left to the legislature and not the overall planning, the committee used the words “prescribed by law.” See 2 Official Record, Constitutional Convention of 1961, pp 2673, 2674. [380 Mich 226.]
See also In re Kasuba Estate, 401 Mich 560, 566; 258 NW2d 731 (1977) (“[t]he Constitution provides for statutory definition of the jurisdiction of probate courts and our power to make rules of practice and
The drafters also used the phrase “provided by law” in
Further,
The constitutional provision presently under consideration,
Defendant does not contend in this Court that 1999 PA 200 governs his case as his request for counsel occurred before the effective date of the act. Nor does defendant argue that, if the statute applied, he would satisfy any of the conditions for appointing counsel to pursue the application.
Defendant‘s reliance on
In a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointed counsel] if it is filed within 42 days after sentencing.
Under
IV. RIGHT TO COUNSEL UNDER THE FEDERAL CONSTITUTION
We next address defendant‘s argument that the federal constitution guarantees him the right to appointed appellate counsel when seeking leave to appeal his guilty plea conviction. Of course, the federal constitution does not require the fifty states to provide any appeal whatsoever to criminal defendants. Ross v Moffitt, 417 US 600, 606; 94 S Ct 2437; 41 L Ed 2d 341 (1974); McKane v Durston, 153 US 684; 14 S Ct 913; 38 L Ed 867 (1894). As discussed, after the enactment of Proposal B, Michigan no longer affords an appeal of right to defendants who plead guilty or nolo contendere.
Our research discloses no authority that recognizes the right to appeal a plea of guilty as a fundamental right. Under the due process-equal protection test of Ross v Moffitt, supra, Michigan‘s scheme gives guilty-pleading defendants a fair opportunity to have their claims heard in our appellate courts. Further, Michigan‘s current arrangements for inmate access to the courts, including law libraries, paralegal assistance, and staff attorney programs, satisfy the so-called right to meaningful access. Accordingly, we conclude that Michigan‘s scheme does not offend the Fourteenth Amendment.
There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel‘s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit [under California‘s then-existing system for deciding whether to appoint counsel], is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal. [Id., pp 357-358.]
The Court also noted, however, “that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a
In Ross, North Carolina provided the defendant appointed counsel in his appeal of right to their intermediate appellate court following a conviction at trial. Id., pp 603-604. That court affirmed the convictions, and the defendant then sought to invoke the discretionary review procedure of the North Carolina Supreme Court. Id. The North Carolina Supreme Court refused to appoint counsel for review in that court. Id.
The Supreme Court affirmed the North Carolina Supreme Court. It held that the federal constitution does not require the appointment of appellate counsel on discretionary review to the North Carolina Supreme Court. Id., pp 610-612. Unlike Douglas, Ross separately analyzed the issue under both the Due Process and Equal Protection Clauses. In its due process analysis, the Court noted a fundamental difference between the trial and appellate stages of criminal proceedings. Id., pp 610-611. At trial, due process requires that the state provide the accused counsel as a shield to fend off the state‘s efforts to convict him. Id. “By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State‘s prosecutor but rather to overturn a finding of guilt made by a judge or jury below.” Id., p 610. Appellate counsel serves as a sword rather than a shield. Id., pp 610-611. The Court thus concluded that “[u]nfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.” Id., p 611.
In its equal protection analysis, the Ross Court explained that the Fourteenth Amendment does not require absolute equality, but does require an appellate system that is free of unreasoned distinctions. Id., p 612.
The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State‘s appellate process. [Id., p 616.]
In concluding that appointed counsel is not required for a discretionary appeal to a state Supreme Court, the United States Supreme Court noted that the defendant had “received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals” in his first appeal of right. Id., p 614. The United States Supreme Court thus reasoned:
We do not believe that it can be said, therefore, that a defendant in respondent‘s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion of the Court of Appeals disposing of his case. These materials,
The doctrinal basis of the Griffin/Douglas line is difficult to ascertain. To the extent that Griffin and Douglas rely on equal protection principles, Washington v Davis, 426 US 229; 96 S Ct 2040; 48 L Ed 2d 597 (1976), undermined their validity by making proof of discriminatory purpose an essential element of an equal protection claim.
Despite the muddled state of its jurisprudence, we adhere to our duty to attempt to understand and apply what the Supreme Court has opined regarding the right of meaningful access. As explained below, we conclude that meaningful access does not require the appointment of counsel for defendants who seek discretionary leave to appeal from their guilty pleas. Our current system already provides those defendants with an adequate opportunity to present their claims fairly.
A. DISTINCT NATURE OF PLEA PROCEEDINGS
Appeals from plea-based convictions and appeals from convictions obtained following trials, like those appeals at issue in Douglas and Ross, are fundamentally different. Foremost, a defendant who tenders a plea has admitted guilt of the offense in open court. “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602; 36 L Ed 2d 235 (1973).
Further, the state has a “fundamental interest in the finality of guilty pleas . . . .” Hill v Lockhart, 474 US 52, 58; 106 S Ct 366; 88 L Ed 2d 203 (1985). A guilty
Plea proceedings are also shorter, simpler, and more routine than trials; the record most often consists of the “factual basis” for the plea that is provided to the trial court. In contrast with trials, less danger exists in plea cases that the record will be so unclear, or the errors so hidden, that the defendant‘s appeal will be reduced to a meaningless ritual. Also, a concession of guilt limits considerably the potential issues that can be raised on appeal. See 1A Gillespie, Michigan Criminal Law & Procedure (2d ed), § 16:30, pp 94-104 (discussing the effect of a plea on the availability of various appellate claims).7 These are all reasoned distinctions that are relevant to determining whether Michigan provides “meaningful access” to the appellate courts.
Given the obvious differences between trial-based and guilty plea convictions, it is clear that our current guilty plea procedures provide sufficient methods of assistance to meet the Ross meaningful access requirement. To preserve an issue for appeal, a defendant must move to withdraw his plea before the trial court.
We acknowledge that the tools available to indigent defendants seeking leave to appeal from their guilty pleas are not equivalent to those present in Douglas and Ross. However, Douglas and Ross both involved appeals from convictions following trial. Neither Douglas nor Ross addressed the issue before us, namely, whether a defendant is entitled under the federal constitution to appointed counsel in a first discretionary appeal from a plea-based conviction. As stated, the differences between trial- and plea-based convictions are undeniable. Thus, any statements in Douglas and Ross suggesting the necessity of a reasoned lower court decision and a brief prepared by an attorney in the lower court must be considered in the context in which those cases were decided.
Finally, we acknowledge that the Court has, since Ross, continued to expand its “meaningful access” line of cases in the context of filing fees and transcripts. See, e.g., MLB, supra. However, we note that none of those decisions have expanded on the right to counsel recognized in Douglas. Thus, we conclude
V. CONCLUSION
No one questions that the appointment of appellate counsel at state expense would be more efficient and helpful not only to defendants, but also to the appellate courts. The distinct character of plea proceedings, however, will “make this relative handicap far
In summary, defendant is not entitled to appointed appellate counsel under either the state or federal constitution. Defendant is not entitled to the appointment of appellate counsel under
WEAVER, C.J., and TAYLOR and YOUNG, JJ., concurred with CORRIGAN, J.
CAVANAGH, J. I dissent from the majority opinion. That opinion swerves and dodges the decisions of the United States Supreme Court to generate a rationale for denying counsel in this case, and in doing so sets up a system that requires payment at the door for access to justice. Those who cannot pay that fee are offered only a meaningless ritual, although those who can afford it will have a meaningful appeal. By denying counsel to indigent defendants and setting up this system, the majority commits structural error, which presumptively results in prejudice. See Penson v Ohio, 488 US 75, 88; 109 S Ct 346; 102 L Ed 2d 300 (1988). I profoundly hope that this matter will make its way to the United States Supreme Court, so that Court can correct the constitutional miscarriage committed by the majority, and so that it can issue the
I
After announcing that the United States Supreme Court has never addressed the precise question before this Court, the majority pursues a path that would allow it a free hand to take this case to the desired destination. That path begins with the statement that the “doctrinal basis” of Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963), and Ross v Moffitt, 417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974), is “difficult to ascertain.” Ante at 515. Having left the designated path by searching for doctrinal clarity, which the Supreme Court itself has disclaimed by admitting that the precise rationale for these cases has never been articulated, see Smith v Robbins, 528 US 259, __; 120 S Ct 746, 759; 145 L Ed 2d 756 (2000), the majority proceeds down a road it calls “meaningful access.” Ante at 522.
The Court‘s decisions in Douglas and Ross, and what those constitutional decisions require in the instant case, are not so difficult to understand, though, by considering the understanding the Supreme Court itself has had of those cases. Throughout the cases following Douglas and Ross, the Court has stated that it has “held again and again, an indigent defendant is entitled to the appointment of counsel to assist him on his first appeal . . . .” Entsminger v Iowa, 386 US 748, 751; 87 S Ct 1402; 18 L Ed 2d 501 (1967). By closely examining Douglas, Ross, and their progeny, why counsel was required in Douglas, and why the Court concluded that counsel
Indeed, those decisions of our nation‘s highest Court poignantly outline the route laid out by the constitution. Though the majority views these decisions as land mines, and weaves to and fro to avoid them, I find them to construct a path. By following that constitutional path, I conclude that, as a matter of federal constitutional law, indigent defendants must have appointed counsel to assist them in pursuing their appeals by leave, their first and only appeal on the merits.
A. OUR JOURNEY BEGINS: GRIFFIN v ILLINOIS1
In our society, sometimes a sense prevails that if some of its members have not provided for themselves all that they need, they have only themselves to blame. Despite this social sense, in the context of a criminal prosecution, it clearly runs headlong into the view, embodied in our constitution, that all people are equal before the law and are entitled to basic protections in its face. The United States Supreme Court first recognized the supremacy of this latter view, as it relates to the availability of avenues of appeal from
B. DOUGLAS v CALIFORNIA: AN END TO MEANINGLESS RITUAL IN THE FIRST APPEAL
Our nation‘s Supreme Court first passed directly on the right to appointed counsel on appeal in Douglas v California, supra. There, the defendants, following conviction on a variety of felonies, sought review in the California District Court of Appeal. In the course of seeking review, the defendants sought, and were denied, appointed counsel. The district court reasoned that it had “gone through” the record and concluded that “no good whatever could be served by appointment of counsel.” Id. at 354-355.
In spite of California‘s forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeal hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required. [Id. at 355-356.]
Save the gracious comments regarding California‘s treatment of indigency in other circumstances, this statement applies with equal force, and in fact describes, the system approved by the majority today. The only difference is that when the indigent is “deprived of a champion,” the prosecutor faces no such burden, and can command all his knowledge, experience, and resources to rebut any arguments the unskilled indigent could offer on his own.
Nonetheless, the Douglas Court, showing admirable restraint, limited itself to the facts before it. The Court cautioned:
We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an
appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike . . . . [Id. at 356.]3
The Court concluded this portion of the discussion by noting that “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Id. at 357.4
Thus, from Douglas, several lessons are apparent. First, the type of appeal a person is afforded may not “hinge[] upon whether or not he can pay for the assistance of counsel.” Id. at 355-356. Second, the Court appears to link in large measure counsel‘s availability to an indigent defendant on his first appeal with “[a]ny real chance he may have had of showing that his appeal has hidden merit . . . .” Id. at 356. The deprivation of one equals the deprivation of the other. Id.
Fortunately, the Supreme Court has not left us without guidance on this matter, but has discussed its view of the holding in Douglas on many occasions. The first of these, and thus the next stop on our journey, is Ross v Moffitt, supra.
Before proceeding onward, though, we must pause at the point that has come to define the evil that Douglas sought to eradicate:
The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between “possibly good and obviously bad cases,” but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel‘s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right
to a meaningless ritual, while the rich man has a meaningful appeal. [Id. at 357-358.]
Mindful of this, we proceed on to Ross.
C. ROSS v MOFFITT: THE OUTER BOUNDARY DEFINED
In Ross, the Court was presented with the opportunity to decide the essential question left open in Douglas, whether the right to appointed counsel would extend to discretionary appeals following an appeal of right. The Court was actually presented with two distinct discretionary appellate routes for which counsel was sought, one for assistance in seeking to appeal to the North Carolina Supreme Court, and the other for assistance in seeking certiorari before the United States Supreme Court.
Following two separate forgery convictions, the respondent, while represented by appointed counsel, appealed to the North Carolina Court of Appeals. That court affirmed his convictions. Afterward, the defendant was denied counsel in his quest to seek review before both the North Carolina and the United States Supreme Courts. Appeal to the latter Court, of course, is available in this context only by way of an entirely discretionary grant of certiorari. Likewise, appeal to the North Carolina Supreme Court was also discretionary and available only by leave of court. In determining which cases to grant leave, the North Carolina Supreme Court, much as our Court does, followed particular rules that embodied concepts beyond the mere correctness of the result in a particular case.
In North Carolina, the court had the discretion to grant leave if it found that the application satisfied
Writing for the Court, Justice Rehnquist began with a review of the Court‘s past cases addressing indigent appeals. Referencing Griffin, Draper v Washington, 372 US 487; 83 S Ct 774; 9 L Ed 2d 899 (1963), Smith v Bennett, 365 US 708; 81 S Ct 895; 6 L Ed 2d 39 (1961), and Burns v Ohio, 360 US 252; 79 S Ct 1164; 3 L Ed 2d 1209 (1959), Justice Rehnquist noted that the “decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal
The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right. [Id.]
Discussing Douglas, Justice Rehnquist also noted the key distinction discussed above:
that under this system an indigent‘s case was initially reviewed on the merits without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary “ex parte examination of the record,” but had their arguments presented to the court in fully briefed form. [Id. at 608 (internal citations omitted).]
As the Court stated, “[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment.” Id. at 608-609.
Justice Rehnquist, though first recognizing the viability of a Due Process Clause analysis, nonetheless found that such a path would not lead to appointing counsel in the case before the Court, focusing on the differences between trial and appellate situations.
Justice Rehnquist then noted that “[l]anguage involving equal protection notions is prominent in both Douglas and in other cases treating the rights of indigents on appeal.”7 Although the states cannot “adopt procedures which leave an indigent defendant ‘entirely cut off from any appeal at all,’ by virtue of his indigency,” id. at 612, quoting Lane v Brown, 372 US 477, 481; 83 S Ct 768; 9 L Ed 2d 892 (1963), or “extend to such indigent defendants merely a ‘meaningless ritual’ while others in better economic circumstances have a ‘meaningful appeal,’ ” id., quoting Douglas, supra at 358, “[t]he question is not one of absolutes, but one of degrees.” Id. Thus, it appears that, although Douglas clearly represented a level of disparate treatment that could not be tolerated by the Court, other situations, in some way degrees apart, but less invidious than the procedure in Douglas, might be acceptable. Rather than an absolute rule, Douglas instead offers a stick against which other procedures must be measured.8
The Douglas Court itself, in its exercise of restraint, spoke only of the situation before it, offer-
In approaching this question, Justice Rehnquist first offered an in-depth review of the procedure of the North Carolina Supreme Court, previously noted. These procedures are similar to those of our own Court.9 The question to be answered in determining whether the North Carolina Supreme Court would grant discretionary review was not the correctness of the result or the rationale evidenced below, but rather the importance of the case to the state‘s jurisprudence. Indeed, though our own court rule specifically recognizes clear error and manifest injustice as potential bases supporting intervention, no equivalent provision was found for the North Carolina Supreme Court.10 Accordingly, the North Carolina Supreme Court was confined to the importance of the legal principles present in a case, rather than the particular merits of the case itself. This distinction was soon to be persuasive for Ross. Before returning to the function of North Carolina‘s discretionary review, however, Justice Rehnquist came to the determination required under Douglas: whether the degree of restriction imposed on a defendant by the denial of counsel for a discretionary review would leave the indigent defendant with only a meaningless ritual, though a moneyed defendant would have a meaning-
On the other hand, as also recited by Justice Rehnquist, the Fourteenth Amendment “does not require absolute equality or precisely equal advantages.” Ross, supra at 612, quoting San Antonio Ind Sch Dist v Rodriguez, 411 US 1, 24; 93 S Ct 1278; 36 L Ed 2d 16 (1973). Likewise, the state is not required to “equalize economic conditions,” id., quoting Griffin, supra at 23 (Frankfurter, J., concurring), nor to be “free from unreasoned distinctions.”12
Thus, the “question of degree” requires measurement. To determine where the difference between the counseled application of a moneyed defendant and the uncounseled application of the indigent lies, Justice Rehnquist turned to the question most important to an appellate court, and one it is well positioned to answer. That is, whether the materials in the uncounseled application are sufficient to be helpful to the Court in reaching a decision.
Therefore, the Ross Court‘s focus was, and hence ours must be, whether the materials available to an indigent defendant, without the benefit of counsel, would be adequate to allow a court to determine whether to grant further review. We must compare the situation in Ross to what could come to be in the instant case, and what has come to be under the scheme imposed by the majority.
In the instant case, an indigent defendant is faced, by law, with only the ability to apply for leave to our Court of Appeals, and is now required to do so without the benefit of appointed counsel. He will have a transcript of the trial court proceedings. This is not all that he must have to offer our Court of Appeals, however; more is required for that Court‘s “basis for its decision to grant or deny review.” Id. at 615.
At that stage he will [not] have, at the very least, . . . a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case.13
Thus, rather than being comparable to the situation in Ross, the question before us presents a situation almost completely inapposite. Our Court of Appeals under the majority decision, the situation before this Court will certainly change as well. Under its decision, the path to this Court would certainly change. The practice of our Court of Appeals, when denying applications for leave to appeal, is to do so by order, stating only that the application is “denied for lack of merit in the grounds presented.” Thus, unless an indigent defendant were successful below, he would never have a Court of Appeals opinion to present in applying for leave to appeal before this Court. Further, under the majority decision, neither an indigent defendant in Proposal B cases nor the record of his case would arrive before this Court with any brief of counsel or even an identification by counsel of the issues. All this Court would have to review would be the “barren record,” along with whatever efforts might have been made by appointed trial counsel. Those who expect the decision today to save judicial resources are likely to soon face a far different reality as courts and judges, at least those compelled to fulfill their legal duty, will find themselves forced to confront voluminous records that have not had meritless issues weeded out or areas upon which courts might focus identified. Arguably, in such a scenario, the acceptability of this Court‘s practices under Ross could become quite questionable. The majority‘s decision will affect not just the practice of guilty-plea defendants before the Court of Appeals, but the access such defendants have to all levels of our appellate system.
Even before we depart from Ross, though, we can comfort ourselves that we are indeed correct in our determination by turning to the factors on which the Ross Court fortified its conclusion:
We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been “a correct adjudication of guilt” in every individual case, see Griffin v Illinois, but rather whether “the subject matter of the
appeal has significant public interest,” or whether “the cause involves legal principles of major significance to the jurisprudence of the State,” or whether the decision below is in probable conflict with a decision of the Supreme Court. The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above. Once a defendant‘s claims of error are organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review. [Ross, supra at 615 (citations omitted; emphasis added).]
Once again, we have added emphasis not only to aid the reader, but also as a tool for analyzing the stark contrast between the system underlying Ross and what now exists in our state under the majority decision. Turning to the first italicized section, with but a single modification, I offer the Ross logic as it now applies to indigent defendants seeking leave in the Court of Appeals:
The critical issue in that court, as we perceive it, is [] whether there has been “a correct adjudication of guilt” in every individual case, see Griffin v Illinois . . .
Recall above the Supreme Court‘s detailed analysis of the jurisdiction and practices of the North Carolina Supreme Court. Consider as well how it compared to the jurisdiction of this Court and
(B) Appeal by Leave. The court may grant leave to appeal from:
(1) a judgment or order of the circuit court, court of claims, and recorder‘s court which is not a final judgment appealable of right;
(2) a final judgment entered by the circuit court or the recorder‘s court on appeal from any other court;
(3) a final order of an administrative agency or tribunal which by law is appealable to or reviewable by the Court of Appeals or the Supreme Court;
(4) any other judgment or order appealable to the Court of Appeals by law or rule;
(5) any judgment or order when an appeal of right could have been taken but was not timely filed.
Appeal by leave in guilty-plea cases is provided by
Subject to the limitations imposed by section 12 of this chapter, an aggrieved party shall have a right to appeal from a final judgment or trial as follows:
*
*
*
(e) All appeals from final orders and judgments based upon pleas of guilty or nolo contendere shall be by application for leave to appeal.18
Last,
Decision.
(1) There is no oral argument. The application is decided on the documents filed and, in an appeal from an administrative tribunal or agency, the certified record. (2) The court may grant or deny the application; enter a final decision; grant other relief; request additional material from the record; or require a certified concise statement of proceedings and facts from the court, tribunal, or agency whose order is being appealed. The clerk shall enter the court‘s order and mail copies to the parties.
(3) If an application is granted, the case proceeds as an appeal of right, except that the filing of a claim of appeal is not required and the time limits for the filing of a cross appeal and for the taking of the other steps in the appeal, including the filing of the docketing statement (28 days), and the filing of the court reporter‘s or recorder‘s certificate if the transcript has not been filed (14 days), run from the date the order granting leave is certified.
(4) Unless otherwise ordered, the appeal is limited to the issues raised in the application and supporting brief.19
These quotations are unfortunately voluminous, but this is an inherent difficulty of demonstrating a negative. Neither the statute governing plea-based appeals nor the court rules governing jurisdiction of the Court of Appeals contain any limitation or jurisdictional statement comparable to
This is so because the Court of Appeals, unlike this Court, or the North Carolina Supreme Court in Ross,
Once again, consider the second portion of the Ross fortifying rationale:
The Court may deny [leave] even though it believes that the decision of the [trial] court was incorrect.
The wording of this quotation leaves my editing less efficient, but it nonetheless contains a lesson. Nothing in our court rules or statute precludes the Court of Appeals from denying leave even though it may believe that the trial court‘s decision was incorrect. Loosely defining “incorrect,” such a rule might well
Finally, consider once more the last section of the Ross alternative supporting rationale:
Once a defendant‘s claims of error are [not] organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review.
This quotation actually cuts two ways, and both do injury to our system. First, no organization or presentation of the defendant‘s claims “in a lawyerlike fashion” to the Court of Appeals will occur in the absence of counsel. That Court will have no assistance from the indigent defendant‘s corner, save whatever efforts he might make pro se. Moreover, whatever he offered to the trial court would be just that, offered to the trial court. At times, “making a record for appeal” could actually work on the basis of trial court offer-
Second, as the quotation might be more readily understood, the justices of this Court would similarly face a lack of organized and supported claims of error on which to make a decision. We would be called on, were we to fulfill our duty, to review the application in each case to attempt to determine what the claims are. Then, we would have to turn to the record and attempt to locate the perceived source of errors, most likely without the benefit of citation, and finally to research the law to determine whether the claim is indeed justified. Further, that presumes we would confine ourselves only to those errors claimed by the pro se indigent defendant.
In the face of the above, this Court would certainly take a more efficient approach. It would strictly enforce the familiar rule that a litigant may not simply claim error and leave us to research the law. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). It would refuse, even as it does now, to consider unpreserved errors, regardless of possible or apparent merit, and enforce the Court‘s complex procedural and filing requirements.
As it takes each docket-clearing step, however, this Court would widen the gulf between a meaningful presentation of an appeal and a meaningless ritual of denial of leave. With each procedural denial, this Court will further fortify the barricade before the
We are as bound by our constitution and Ross as our Court of Appeals, and equally likely, following the instant decision, to be forced to choose between sifting through an immense burden of pro se applications and taking actions that will immeasurably increase the gap between moneyed and indigent defendants.22 To be faithful to our oath, Michigan appellate judges will shoulder a significant burden. The alternative is to further prove what is likely in any event, that with the instant decision, this Court has undercut Ross so much that this Court‘s own review will lack an adequate basis when an indigent defendant appears before this Court. The constitutional harbor offered by Ross will have dried up, and I welcome the review that drought will bring.
Finally, then, I could move on from Ross. Done with our journey we could be, the path clearly marked. Yet, I cannot, for with each citation by the majority of the “discretionary” nature of guilty-plea review, I face the grim realization that the Court has chosen to ignore the teachings of our Supreme Court, and instead has tried to pigeonhole the instant case into either a Douglas or Ross pre-formed box.
D. UNITED STATES V MacCOLLOM: CONSIDERABLE ASSISTANCE
As appellate judges, we do not have the blessing of requesting instructions from superior courts when we do not understand their decisions. Rather, we are left with only the Court‘s written opinion; and when a point is less than clear, we are left with more in the way of academic debate than clarification from above. A chance for restatement occurs only when the higher court has the opportunity and again feels the need to address a similar area of law. Therefore, those who have misunderstood Ross should be grateful for the opportunity presented the Supreme Court in United States v MacCollom, 426 US 317; 96 S Ct 2086; 48 L Ed 2d 666 (1976).
MacCollom dealt not with a question of the right to counsel, but rather with the right to a transcript. Although that issue might seem, after Griffin and Draper v Washington, well settled, MacCollom dealt with an indigent prisoner seeking a transcript to prepare his petition for habeas corpus relief from a federal conviction. Under normal circumstances, a transcript would probably have been prepared in the course of that defendant‘s direct appeal, but he had apparently elected to allow his direct appeal rights to
Because it dealt with a collateral rather than a direct appeal, such a question might seem to have little import for the instant case. Justice Rehnquist, in his lead opinion,23 began with a review of the Court‘s decisions in Douglas and Ross. MacCollom was issued just two years after Ross, so it offers a fair barometer of how both the author and several members of the Court understood Ross when it was of recent vintage.
Justice Rehnquist, in his analysis of the equal protection issue, had cause to revisit both Douglas and his opinion in Ross:
In Douglas v California, supra, the Court held that the State must provide counsel for an indigent on his first appeal of right. But in Ross v Moffitt, supra, we declined to extend that holding to a discretionary second appeal from an intermediate appellate court to the Supreme Court of North Carolina. We think the distinction between these two holdings of the Court is of considerable assistance in resolving respondent‘s equal protection claim. Respondent in this case had an opportunity for direct appeal, and had he chosen to pursue it he would have been furnished a free transcript of the trial proceedings. But having forgone that right, and instead some years later having sought to obtain a free transcript in order to make the best case he could in a proceeding under [
28 USC ] § 2255, respondent stands in a different position. [MacCollom, supra at 324-325.]
E. EVITTS v LUCEY: ANOTHER LESSON IN DISTINCTIONS
In Evitts v Lucey, 469 US 387; 105 S Ct 830; 83 L Ed 2d 821 (1985), the Court was called on to determine whether the right to assistance of counsel on a first appeal included a right to effective assistance of counsel. An indigent defendant, following conviction, had counsel appointed for his first appeal. Counsel failed to comply with the applicable Kentucky court rules, and the appellate court dismissed the defendant‘s appeal. The defendant sought habeas corpus relief, claiming the dismissal was unconstitutional because it deprived him of a claimed right to effective assistance of counsel. See id. at 389-391.
The Supreme Court agreed with the defendant. It noted that “[j]ust as a transcript may by rule or custom be a prerequisite to appellate review, the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits.” Id. at 393. The essence of the Court‘s rationale, though referring to a right to effective assistance of counsel, is nonetheless applicable to, and based on an express acknowledgment of, the right to any counsel at all:
In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal defendant must face an adversary proceeding that—like a trial—is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant—like an unrepresented defendant at trial—is unable to protect the vital interests at stake. [Id. at 396.]
Most importantly, one question confronting the Supreme Court was whether the appeal Kentucky granted was of right or discretionary. The commonwealth argued that the appeal was permitted only if it complied with applicable rules, and thus, under Ross, it was a discretionary appeal. Rejecting that argument, the Court further charted the path taken by our analysis of the Ross “fortifying” rationale:
Unlike the appellant in the discretionary appeal in Ross, a criminal appellant in the Kentucky Court of Appeals typically has not had the benefit of a previously prepared trial transcript, a brief on the merits of the appeal, or a previous written opinion. In addition, petitioners fail to point to any source of Kentucky law indicating that a decision on the merits in an appeal like that of respondent—unlike the discretionary appeal in Ross—is contingent on a discretionary finding by the Court of Appeals that the case involves significant public or jurisprudential issues; the purpose of a first appeal in the Kentucky court system appears to be precisely to determine whether the individual defendant has been lawfully convicted. In short, a criminal defendant bringing an appeal to the Kentucky Court of Appeals has not previously had “an adequate opportunity to present his claims fairly in the context of the State‘s appellate process.” It follows that for purposes of analysis under the Due Process Clause, respondent‘s appeal was an appeal as of right, thus triggering the right to counsel recognized in Douglas v California. [Id. at 401-402 (citations omitted).]
The lesson of our cases, as we pointed out in Ross, is that each Clause triggers a distinct inquiry: ” ‘Due Process’ emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. ‘Equal Protection,’ on the other hand, emphasizes the disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.” In cases like Griffin and Douglas, due process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal Protection concerns were involved because the State treated a class of defendants—indigent ones—differently for purposes of offering them a meaningful appeal. Both of these concerns were implicated in the Griffin and Douglas cases and both Clauses supported the decisions reached by the Court. [Id. at 405 (citations omitted).]
On the other hand, the dissent in Evitts disagreed with any reliance on the due process clause.
Given the dispute in Evitts, the place of a due process analysis in the instant case is subject to academic disagreement. However, the Court believed a due process analysis was applicable, perhaps because even though the defendant was challenging his conviction, he was in a lesser position than the defendant in Ross, whose “claims had ‘once been presented by a lawyer and passed upon by an appellate court,’ ” Ross, supra at 614-615, quoting Douglas, supra at 356, and thus more akin to the defendant in Douglas, in which the Court concluded that due process concerns were present. See 3 LaFave, Israel & King, Criminal Procedure (2d ed), § 11.1(b), p 474. Whatever the role of the Due Process Clause, I have
F. MURRAY v GIARRATANO: THE PATH STRAIGHTENS
By now we have crested the hills on our path, and can see its direction onto the horizon. Yet the wayward majority refuses to pause and seek directions, insisting that it understands Douglas and Ross “in the context in which those cases were decided,” ante at 519, without understanding the context in which the Supreme Court has understood those same cases. To illustrate the majority‘s error, we continue on with our journey.
In the years following Ross, Chief Justice Rehnquist was called upon to again revisit the essence of the Ross Court‘s holding. In Murray v Giarratano, 492 US 1; 109 S Ct 2765; 106 L Ed 2d 1 (1989),25 a case involving a claim by indigent death row inmates for appointed counsel for state postconviction proceedings, Chief Justice Rehnquist wrote:
The Sixth and Fourteenth Amendments to the Constitution assure the right of an indigent defendant to counsel at the trial stage of a criminal proceeding, Gideon v Wainwright, 372 US 335 [82 S Ct 792; 9 L Ed 2d 799 (1963)], and an indigent defendant is similarly entitled as a matter of right to counsel for an initial appeal from the judgment and sentence of the trial court. Douglas v California, [supra]; Griffin v Illinois, [supra]. But we held in Ross v Moffitt, supra at 610, that the right to counsel at these earlier stages of a criminal procedure did not carry over to a discretionary appeal provided by North Carolina law from the intermediate appellate court to the Supreme Court of North Carolina. [Murray, supra at 7.]
Two points are apparent. The first is the by-now familiar distinctions between an initial and later appeal that were central to the holding of Ross. Second is that nowhere in this statement is found a limitation that the initial appeal must be “of right” for counsel to be required.26 Considering the foundations of Ross, and the “fortifying” justifications that have now become central to any discussion of that decision, this appears neither surprising nor inadvertent.
The majority notes, in apparent reference to Murray, that the Supreme Court has not extended the right to counsel, “even in the case of inmates on death row.” Ante at 520. Similarly, attempting to imply
G. MATA AND BILLOTTI: PREVIOUS TRAVELERS ON THIS PATH
For a moment, I will pause in my review of Supreme Court decisions to consider a few more indications that the majority has indeed gone astray. Each of these offers an insight into a particular problem with the majority decision, and the system we will come to know in Michigan.
In Mata v Egeler, 383 F Supp 1091 (ED Mich, 1974), the United States District Court for the Eastern District of Michigan held that an indigent defendant filing a delayed application for leave to appeal after failing to file a timely appeal as of right was entitled to the appointed appellate counsel. Although the defendant in Mata had pleaded guilty, at that time he was entitled to an appeal of right. Nevertheless, because of his nonnegligent delay in filing such an appeal, he was left with only an appeal by leave to the Michigan Court of Appeals. Thus, the defendant in Mata was in precisely the same situation as the instant defendant.
Mata was decided shortly after the decision in Ross, and the district court showed the benefit of having both that opinion and Douglas available:
It is “invidious discrimination” for the Michigan Court of Appeals to consider the merits of an indigent‘s first late appeal without benefit of counsel while allowing a rich man to employ counsel. The “relative handicap” Michigan indigents face when applying for leave to appeal is even greater than the handicap petitioners faced in Douglas. There, the California appellate court independently examined the record before concluding that “no good whatever could be served by appointment of counsel.” Here, the only person examining the record for possible errors is petitioner—an indigent untrained in law. Furthermore, Mata‘s appeal is discretionary rather than as of right; if he fails to persuade the Court of Appeals his case has merit, he will not receive his first appeal, as petitioners in Douglas would have. While one can distinguish the principal case from Douglas—the appeal in the principal case is discretionary, whereas in Douglas it was as of right—in the context of the Michigan appellate system, this is a distinction without a difference. Whether the appeal is as of right or discretionary is irrelevant if “indigents are . . . denied meaningful access to that system because of their poverty. Ross v Moffitt . . . .”
The district court, only a few short months after Ross was issued, follows a track in its opinion paralleling what would emerge in so many later opinions of the United States Supreme Court.28 That alone
2. BILLOTTI V LEGURSKY
No authority suggests that providing only an appeal by leave in guilty plea, or any other, cases would be constitutionally infirm. Indeed, states have discretion to deal with difficult problems of policy. However, authorities do provide that states cannot deny a meaningful appeal to an indigent defendant when it is allowed for a moneyed defendant. The United States Court of Appeals for the Fourth Circuit has suggested that the system set up by the majority today may effectively expose the whole of Proposal B to constitutional difficulty.
In Billotti v Legursky, 975 F2d 113 (CA 4, 1992), the court reviewed the appellant‘s claim that the West
Nonetheless, the right to petition for appeal to the Supreme Court of Appeals is accompanied by an array of procedural protections. These procedural protections mirror the requirements that the United States Supreme Court has held to be mandatory when a state grants appeal as of right. The right to petition is guaranteed under
W VA Const, Art VIII, § 4 , and denial of that right renders the conviction void. State v Eden, 163 W Va 370; 256 SE2d 868, 875 (1979). Indigent criminal defendants are entitled to court-appointed counsel for their petition. Rhodes v Leverette, 160 W Va 781; 239 SE2d 136, 140 (1977). Accord Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963). Counsel‘s performance must meet constitutional standard of effectiveness. State ex rel Bratcher v Cooke, 155 W Va 850; 188 SE2d 769 (1972). Accord Evitts v Lucey, 469 US 387 (1985). Criminal defendants are entitled to a transcript for appeal. State ex rel Johnson v McKenzie, 159 W Va 795; 226 SE2d 721, 724 (1976). Accord Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956). West Virginia has thus provided Billotti with the same resources for discretionary review that the Supreme Court has held are required in cases involving appeal as of right.
*
*
*
Petitioner‘s counsel has also conceded that the relevant procedural safeguards were observed here—Billotti‘s counsel filed a substantial petition on Billotti‘s behalf, accompanied by the transcript, and made an oral presentation
The court relied on the presence of these protections to dispose of Billotti‘s claim:
It is plain that West Virginia has afforded Billotti an adequate opportunity to challenge the alleged errors in his trial. The Fourteenth Amendment does not authorize the federal courts to micromanage state criminal justice systems. In our federal system, the states are allowed to structure their systems of criminal justice as they see fit, as long as their systems satisfy the basic demands of due process. . . . It is enough that they serve the needs of the state which adopted them, and that they afford an ample measure of procedural fairness to criminal defendants seeking an appeal. [Id. at 116 (citations omitted; emphasis added).]
Thus, although the question is not as well defined as some that are raised by the majority‘s decision in the instant case, it is arguable that, if review of the constitutionality of a system that offers only appeal by leave is to be decided as the Fourth Circuit believes, the presence or absence of counsel‘s assistance in the appellate process, whatever that process is called, is a crucial component of the system‘s constitutionality.31 Through its decision, the majority has left that component of Michigan‘s system by the roadside, and invites a challenge not only to the denial of
II
The United States Supreme Court and the lower federal courts have compared the position of appealing defendants to the position of the defendant in Ross when determining whether counsel must be appointed. In cases including MacCollom, Murray, and Pennsylvania v Finley, 481 US 551; 107 S Ct 1990; 95 L Ed 2d 539 (1987), the Supreme Court has denied indigent defendants counsel in second-tier appeals and postconviction proceedings because counsel has been present in first appeals, in accord with Douglas. When counsel has not been present on a first appeal, as in Mata, the courts have appointed counsel. By its decision, the majority denies indigent defendants any counsel at all on appeal. In lieu of an indigent defendant‘s right to counsel on a first appeal, the majority offers indigent defendants assurances that the trial court proceedings in guilty plea cases will be so simple that the indigent defendants will not need any appellate counsel, and even if they did, their trial counsel will already have acted as appellate counsel. Although distinctions can be drawn between guilty plea and trial cases, when they are offered as a reason to depart from the constitutional mandates in Douglas and Ross, they fail. Similarly, comparing the position of a Proposal B defendant with that of the defendant in Ross finds the former woefully under equipped to have “meaningful access” to our Court of Appeals.
The majority believes that because a defendant has pleaded guilty, guilt is then beyond question and a court does not function to determine whether that is accurate. It then concludes that it can deny counsel because “[t]he distinct character of plea proceedings . . . will ‘make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right,’ from a trial conviction.” Ante at 520-521, quoting Ross, supra at 616 (citation omitted). By sandwiching this quotation from Ross between its own modifiers, the majority exemplifies its error, relying on snippets from Ross without accounting for its reasoning that counsel could be denied on a discretionary appeal following an appeal where counsel was provided. A point that the majority does not choose to quote from Douglas and Ross is that both cases focus on “a correct adjudication of guilt.”
First, a “correct adjudication of guilt” involves more than just an admission of guilt. Claims of failures to honor plea bargains, coercion or involuntariness of a plea, or lack of mental capacity to knowingly enter a plea, for example, all address the correctness of the “adjudication of guilt.” As evidenced by our adoption of
Further, although the majority notes the claims that are waived by a guilty plea, many others remain appealable, and deal with a “correct adjudication of
In addition to these claims, our Legislature recently enacted law providing for appeals of sentencing decisions. The statute itself,
Despite the matters that can result in error in a guilty-plea case, and the various appellate claims a guilty-pleading defendant can assert, the majority concludes that guilty pleas are so simple, no counsel will ever be necessary for an indigent defendant who wants to appeal. Some plea-based cases may be fairly simple, and appeals from them may be fairly meritless. To apply that presumption wholesale to every plea-based appeal, however, ignores the lessons of the cases our Court of Appeals hears daily.
For example, consider the “simplicity” of the cases discussed below. Although some include variations of the more common claims regarding sentence proportionality, others are considerably more complex, as evidenced in some cases by the Court of Appeals efforts in reaching its conclusions. In each case, defendant pleaded guilty or nolo contendere shortly before Proposal B went into effect, in what would now be a Proposal B case, and in each was represented by appointed counsel. Counsel raised the claims of error described, and garnered the relief described below. Under the Court‘s decision in the instant case, from now on, a defendant with a similar claim will not be represented by counsel in attempting to raise that claim. Thus, as we proceed through these cases, I am left to wonder how many, if any, of these errors would have come to mind to an attorney
First, in People v Hazzard, 206 Mich App 658; 522 NW2d 910 (1994), the juvenile defendant pleaded guilty to two counts of CSC I and was sentenced as an adult to concurrent prison terms of twenty-two to forty years. Id. at 659. Through appointed counsel, the defendant argued that the trial court failed to comply with
Consider also People v Antolovich, 207 Mich App 714; 525 NW2d 513 (1994). There, following a guilty plea to delivering less than fifty grams of cocaine, the circuit court sentenced defendant to four to twenty years imprisonment, in excess of the guidelines range, a $25,000 fine, and payment of $1,500 in costs. Id. at 715. Through appointed counsel, the defendant challenged the trial court‘s authority to impose the sentence. The Court of Appeals vacated the sentences, holding that the court below was without statutory authority to impose costs, that the fine was constitutionally excessive, and that the prison term was not proportionate under People v Milbourn, 435 Mich 630;
Similar are several unpublished decisions of the Court of Appeals. In People v Hill,33 the defendant entered a plea bargain that included a provision that his sentence for marijuana possession would run concurrently with his sentence in another case for possession of marijuana with intent to deliver. The Court of Appeals held that the trial court did not have authority to impose concurrent sentences under
These cases are only a few examples of the types of claims and the types of indigent guilty-pleading defendants that are daily before our Court of Appeals. Nonetheless, the majority concludes with ease that the records in these cases, and others like them, would be so short, simple, and routine that the
B. PROPOSAL B INDIGENT DEFENDANTS AND ROSS
In a further attempt to rehabilitate its constitutional departure, the majority suggests that the materials provided by trial counsel under
Initially, the relevant points from Ross:
The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had “once been presented by a lawyer and passed upon by an appellate court.” We do not believe that it can be said, therefore, that a defendant in respondent‘s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage, he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion
by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review. [Ross, supra at 614-615 (internal citations omitted; emphasis added).]
The Court later referred to these materials in Pennsylvania v Finley, supra, with Chief Justice Rehnquist again offering the approach that he has consistently used in discussing Ross:
Nor was the equal protection guarantee of “meaningful access” violated in this case. By the time respondent presented her application for postconviction relief, she had been represented at trial and in the Supreme Court of Pennsylvania. In Ross, we concluded that the defendant‘s access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. [Finley, supra at 557 (citations omitted).]
In discussing Ross, and suggesting that counsel need not be provided for a discretionary appeal, the Court predicated its conclusion not on the simple presence of counsel at some point below, but on several distinct factors. By viewing the emphasized portions of Ross quoted above, it becomes clear that three separate “tools,” to use the Finley Court‘s terms, allowed the Court to conclude that counsel was not necessary on a second-tier discretionary appeal:
At that stage he will have, at the very least, [1] a transcript or other record of trial proceedings, [2] a brief on his behalf in the Court of Appeals setting forth his claims of error, and [3] in many cases an opinion by the Court of Appeals disposing of his case. These materials, supple-
mented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review. [Ross, supra at 615 (internal citations omitted; emphasis added).]
For confirmation, we can merely recall Finley:
In Ross, we concluded that the defendant‘s access to [1] the trial record and [2] the appellate briefs and [3] opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. [Finley, supra at 557 (citations omitted).]
The majority suggests that, if an indigent defendant proceeded pro se, he would have sufficient tools to ensure that his efforts to gain discretionary review on his first appeal would provide meaningful access rather than a meaningless ritual. Accordingly, consider what the instant indigent defendant will not have, and compare his position to the pro se defendant in Ross, the same comparison the Supreme Court has repeated time and again.
1. A TRANSCRIPT OR OTHER RECORD OF THE TRIAL PROCEEDINGS
In a scenario with trial counsel raising a motion under
2. A BRIEF ON HIS BEHALF IN THE COURT OF APPEALS SETTING FORTH HIS CLAIMS OF ERROR
According to the majority, trial counsel will bring a motion to withdraw the plea under
Leaving aside this presumption‘s correctness, for the purposes of this component of the Ross analysis, the motion must be compared to the presence of an existing appellate brief that offers a pro se defendant a springboard from which to launch his own efforts. First, generally, appellate briefs are considerably more in-depth and detailed than briefs to the trial court. The time demands of appellate practice, though
More important, however, is that a great many issues need not be preserved by a
Preservation of Issues. A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirement of the rules in this subchapter, or any other claim that the plea was not an understanding, voluntary, or accurate one, unless the defendant has moved to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be raised on appeal.
Thus, only issues dealing with what might be termed the facial validity of the plea require such a motion for their preservation. Many other issues, including a great many of the claims that are not waived by a guilty plea, like jurisdictional defects, double jeopardy claims requiring no further factual record, due process claims, preserved entrapment claims, mental competency claims, claims involving the factual basis of the plea, and claims that the state had no right to proceed in the first instance, might also be raised in plea cases. Although some of these claims, like factual basis challenges, would seem to require preservation, others, like jurisdictional defects and double jeopardy claims, the latter being a particularly complex area of law to a layperson, clearly would not.
Additionally, neither the majority‘s theory nor
It may be suggested, however, that even in the absence of
Scope of Trial Lawyer‘s Responsibilities. The responsibilities of the trial lawyer appointed to represent the defendant include
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(4) unless an appellate lawyer has been appointed, filing of postconviction motions the lawyer deems appropriate, including motions for new trial, for a directed verdict of acquittal, to withdraw [the] plea, or for resentencing.
Thus, trial counsel may file such motions as “the lawyer deems appropriate.” What would be appropriate, however, is something of an open question. The staff comment to this rule offers some insight into the phrase‘s genesis:
Subrule (H) expands the scope of an appointed trial lawyer‘s responsibilities set forth in former
6.101(C)(2) . The former rule made no reference to an appointed trial attorney‘s ability to file “postconviction motions the lawyer
deems appropriate.” Clearly, there are circumstances when it is more appropriate for the trial attorney to seek postconviction relief for his client than to await the appointment of appellate counsel. Under the scheme of the rules, however, a defendant should have only one appointed lawyer representing him at any time, and consequently, the appointment of appellate counsel should act as an end to the responsibilities of the trial attorney under the appointment order.
Until now, under this rule, trial counsel has had the authority to file motions until the appointment of appellate counsel. Under the majority‘s decision, however, appellate counsel will not be forthcoming. Accordingly, construing the rules in such a fashion that trial counsel would become the only standard-bearer for postconviction motions would entail an extension of the defendant-trial counsel relationship. The traditional end of that relationship was the appointment of appellate counsel, usually following and pursuant to the defendant‘s execution of the State Court Administrator‘s Office form given to defendant at sentencing. However, the majority‘s decision would extend this relationship for a time, matching the time for filing an application for leave to appeal, which is, under
This is not, in and of itself, offered as a reason to reject the
Likewise, before moving on, our minimum standards for appellate counsel for indigent defendants are instructive. In particular, standard nine states:
Counsel should assert claims of error which are supported by facts of record, which will benefit the defendant if successful, which possess arguable legal merit, and which should be recognizable by a practitioner familiar with criminal law and procedure who engages in diligent legal research. [Administrative Order No. 1981-7.]
Although we have held that failure to raise every claim of arguable legal merit does not amount to ineffective assistance, see People v Reed, 449 Mich 375; 535 NW2d 496 (1995), we have, nonetheless, expected counsel functioning in an appellate role to raise those claims that might arguably have merit. In place of this requirement, under the majority‘s decision, we have
It may be that, if the indigent himself has chosen to file an application for leave to appeal, which is beyond the scope of trial counsel‘s responsibilities, a transcript may be prepared. If we were to extend the client‘s relationship with trial counsel well past sentencing, to the outer limits of the time for filing a delayed application for appeal, counsel might have a record to review. Again, though, counsel would be reviewing their own work, and, although something new might occur to them, it might as easily go unnoticed. The more the latter would occur, the greater the potential for an ineffective assistance claim, and yet the slimmer the chances of it being noticed by the pro se defendant or the appellate court.
Finally, the content of the “lawyerly presentation” deserves comment. As noted above, there is not much potential to dispute the suggestion that generally, briefs presented by counsel to the Court of Appeals are considerably more comprehensive than briefs that may, but often need not, accompany trial court motions. Moreover, given that these motions are offered to the trial court, they may well have a distinctly trial court direction. Rather than denigrating the trial court‘s function, the underlying point of this suggestion is that many factual concerns may be
Thus, the comparison between a defendant with the benefits of an
3. AN OPINION BY THE COURT OF APPEALS DISPOSING OF HIS CASE
The appellate court‘s decision, though not present in every case, as Ross recognized, nonetheless offers a key tool toward subsequent appellate access. This Court knows this to be true, because a substantial failing of more than a few of the applications to this Court is a failure to address the conclusion of the
First, though less important, the press of trial court business means that postconviction motions may well have little, if any, opinion offered with that court‘s decision. Indeed, we see some such motions denied simply by checking a box on an SCAO or local form, with no further explanation. The record may or may not contain some sort of discussion, but in general, even when written opinions are offered, they may not be particularly in depth.
More importantly, however, is what trial court opinions are not. Although such opinions are most likely not appellate opinions in terms of their content, they are certainly not appellate opinions in terms of their authorship. The very same court that is purported to have made the error is ruling on the motion. The motion may address an issue preserved by objection, and thus the court would have already ruled on the alleged error. In other instances the motion may raise a new issue. Every instance, though, will involve an allegation of error by the same court asked to decide whether there was error.
As a matter of first instance, courts may address claims of their own error. A trial court correcting its own errors when it finds merit in a party‘s contention, however, can hardly be said to amount to an appellate decision. Rather, it is more likely a re-decision of the same point. Consider, for example, motions for reconsideration before this Court. When a party offers nothing new, but simply alleges that the prior decision was incorrect, even for new and expanded reasons, we tend to offer them short shrift. Much the same would occur below. In Proposal B cases, then, rather than a scenario comparable to the constitution-
4. MCR 6.005(H)(4) AND ROSS
As detailed above, the Ross Court relied on three particular antecedents when it denied counsel to a defendant seeking a discretionary appeal after a first appeal where counsel was present. In decisions after Ross, the Supreme Court and lower courts have compared the tools defendants have had to those present in Ross when deciding whether to appoint counsel. If the tools are not comparable to those present in Ross, then the cases have been deemed more comparable to Douglas, and counsel has been appointed.39 See, e.g., Mata, supra.
The first of these tools was a transcript of the proceedings below. As discussed above, this tool will not be present under the
Next, Ross relied on the presence of an appellate brief prepared by appellate counsel for the defendant. Indigent Proposal B defendants, who will have to rely
Finally, Ross relied on the presence of an appellate opinion. Ross involved an appellate court, presumably the objective higher level of review, reviewing the arguments, researching the issues, and making conclusions of law on the basis of an objective assessment by those sitting on the panel. Under Ross, before an indigent defendant would be left to seek discretionary appellate review on his own, his case would have been passed on by a higher court wholly removed from the initial decision and, for that matter, one given the benefit of an attorney‘s presentation on his behalf. That court would have rendered a considered decision, offering to him a neutral assessment of the merits and viability of his claims of error. Under
When analyzing claims for counsel, the Supreme Court has repeatedly turned to this analysis under Ross. Indigent Proposal B defendants will have nothing comparable to the tools the defendant had in Ross, leaving them to have only a meaningless ritual rather than a meaningful appeal. Further, as explained above, the “simplicity” of guilty plea cases does not mitigate the stark contrast between indigent Proposal B defendants and the defendant in Ross, as indigent Proposal B defendants can bring a variety of
III
In closing, I cannot dispute that appellate justice, whether for indigents or otherwise, carries an attendant cost in dollars.40 This, along with a desire to eliminate a backlog of appellate cases in our Court of Appeals, led to the adoption of Proposal B.41 Further, for many it is easy to disregard indigent defendants’ appeals because “[w]e all know that the overwhelming percentage of in forma pauperis appeals are frivolous.” Douglas, supra at 358 (Clark, J., dissenting).
The need for forceful advocacy does not come to an abrupt halt as the legal proceeding moves from the trial to appellate stage. Both stages of the prosecution, although perhaps involving unique legal skills, require careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over. [Penson, supra at 85.]
To prosecute the appeal, a criminal appellant must face an adversary proceeding that—like a trial—is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant—like an unrepresented defendant at trial—is unable to protect the vital interests at stake. [Evitts, supra at 396.]
Further, with regard to indigent defendants, I again consult the wisdom of our nation‘s final arbiter of constitutional protections:
Statistics compiled in the court below illustrate the undeniable fact that as many meritorious criminal cases come before that court through applications for leave to proceed in forma pauperis as on the paid docket, and that no a priori justification can be found for considering them, as a class, to be more frivolous than those in which costs have been paid. Even-handed administration of the criminal law demands that these cases be given no less consideration than others on the courts’ dockets. Particularly since litigants in forma pauperis may, in the trial court, have suffered disadvantages in the defense of their cases inherent in their impecunious condition, is appellate review of their cases any less searching than that accorded paid appeals
inappropriate. Indigents’ appeals from criminal convictions cannot be used as a convenient valve for reducing the pressures of work on the courts. If there are those who insist on pursuing frivolous litigation, the courts are not powerless to dismiss or otherwise discourage it. But if frivolous litigation exists, we are not persuaded that it is concentrated in this narrow, yet vital, area of judicial duty. [Coppedge v United States, 369 US 438, 449-450; 82 S Ct 917; 8 L Ed 2d 21 (1962) (emphasis added).]
This Court‘s decision leaves indigent defendants standing in a cloud of dust on the roadside on the way to appellate justice. Defendants who can pay for the services of an attorney will be represented at trial level, will have their cases reviewed by appellate attorneys, and will have lawyerlike presentations to our Court of Appeals. In other words, they will have meaningful appeals. Defendants who cannot pay for an attorney will have trial level representation, and will be left without any appellate representation whatsoever. The only thing more that they will have is the meaningless ritual in our Court of Appeals.
KELLY, J., concurred with CAVANAGH, J.
MARKMAN, J., took no part in the decision of this case.
Notes
By the time respondent presented her application for postconviction relief, she had been represented at trial and in the Supreme Court of Pennsylvania. In Ross, we concluded that the defendant‘s access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. [Id. at 557 (citations omitted).]
In Finley, the Court continued its longstanding practice of comparing the appellant‘s position to the position of the defendant in Ross to determine whether counsel must be appointed.
In Ross, the Supreme Court ruled that due process and equal protection did not require the State of North Carolina to provide an indigent defendant with counsel in a discretionary appeal to the state supreme court. Vital to the Court‘s reasoning was its recognition that North Carolina did provide counsel to criminal defendants who pursued their automatic right of appeal to the state‘s intermediate appellate court. Thus, the crucial distinction advanced in Ross is not between discretionary appellate systems and automatic appellate systems. Rather, the key difference considered in both Evitts and Ross concerned the nature of constitutional protections in a single system which employed both a first appeal as of right to an intermediate court, and a subsequent discretionary appeal to the state supreme court. Indeed, the distinction between a first appeal of right and subsequent discretionary appeal within the same appellate system has been made by the Court in other cases. The Court, however, has not drawn a line between discretionary appellate systems and automatic appellate systems for the purpose of gauging the degree of due process protection owed a criminal appellant. [Bundy, supra at 130 (citations omitted).]
[I]n holding that a State need not appoint appellate counsel for a discretionary appeal to the State‘s highest court, the Supreme Court [in Ross] could not have been more clear that that distinction was based upon the fact that an attorney had been appointed at the intermediate level, had reviewed the record and had prepared the appellate arguments. Without that initial review, the indigent defendant‘s appeal was a meaningless ritual. [Slip op at 38.]