Very unappealing: MSC says missing deadlines is 'ineffective assistance'

There are deadlines and then there are DEADLINES.

Dinner reservations, parties, dates? Punctuality is appreciated but there's usually forgiveness for the fashionably late.

The stuff in the Michigan Court Rules, and, for purposes of today's blog, the stuff about when to file a criminal appeal? Now, those are DEADLINES.

A handful of recent Michigan Supreme Court orders make the point loud and clear.

The Court of Appeals had dismissed each of the appeals because of a blown filing deadline. When the criminal defendants tried their luck with leave applications at the Supreme Court, instead of getting a deaf ear, their attorneys were ordered to file supplemental briefs explaining the circumstances that led to the dismissals. Roe v. Flores-Ortega, 528 U.S. 470 (2000), provides a way out for those who miss a filing deadline: defendants can't complain if, obviously, they tell counsel not to bother with an appeal, or if the defendants share the blame for things not happening when they should.

Here's the punch line from the Michigan Supreme Court in People v. Means, People v. McCoy, and People v. Kipfer:

"[I]n lieu of granting leave to appeal, we REMAND this case to the Court of Appeals. That court shall treat the defendant's application as having been filed within the deadline set forth in MCR 7.205(F) and shall decide whether to grant, deny, or order other relief, in accordance with MCR 7.205(D)(2). The defendant's attorney acknowledges that the defendant did not contribute to the delay in filing and admits his sole responsibility for the error. Accordingly, the defendant was deprived of his appeal as a result of constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 119 S Ct 961; 143 L Ed 2d 18 (1999)."

Ouch!

In People v. Rodgers, the order reads this way:

"[I]n lieu of granting leave to appeal, we REMAND this case to the Court of Appeals. That court shall treat the defendant's delayed application for leave to appeal as having been timely filed and shall decide whether to grant, deny, or order other relief, in accordance with MCR 7.205(D)(2). The defendant was deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 119 S Ct 961; 143 L Ed 2d 18 (1999)."

Still, ouch!

More ouch: the court told each of the attorneys to write a $250 check out of their own pocket, payable to the court, and hand it over to the court clerk.

In one case, People v. DeKubber, the attorney explained that the appeal was not pursued because her fees had not been paid. No excuse, said the majority, which noted that counsel let the deadline pass without withdrawing from the case. But Justice Maura Corrigan's dissenting statement suggested there may be more to the story:

"The defendant's retained appellate attorney missed the deadline for late appeal in the Court of Appeals. As a result, his appeal was dismissed for lack of jurisdiction. Under Roe v Flores-Ortega, 528 US 470, 486 (2000), a defendant alleging that ineffective assistance of counsel deprived him of his appeal must show that, 'but for counsel's deficient conduct, he would have appealed.' Thus, the defendant must establish, as a factual matter, that his appellate attorney caused him to forgo an appeal by rendering assistance that fell below professional norms. His attorney may not be the but-for cause of his lost appeal if the defendant contributed to the delay or indicated that he did not wish to appeal. Cf. Peguero v United States, 526 US 23, 25-26, 28 (1999). Here, the defendant replaced his appointed appellate attorney by retaining a second attorney almost 11 months after his convictions and sentences were entered. After the retained attorney filed an unsuccessful motion for resentencing in the trial court, the defendant's family did not pay his legal bills on time. His retained attorney asserts that, although the family's inability to pay was 'not Defendant's fault,' she waited to prepare and file his appeal until she received payment. She also claims that she informed the defendant and his family that she would not pursue an appeal until the defendant paid his outstanding legal bills and an additional retainer. Under these circumstances, questions of fact remain regarding whether the retained attorney caused the defendant to forgo his appeal by rendering assistance that fell below professional norms and whether the defendant contributed to the delay. Accordingly, I would remand for the trial court to address these questions at a Ginther hearing. People v Ginther, 390 Mich 436 (1973)."