Opinion
No. 114378.
January 21, 2000.
On order of the Court, the delayed application for leave to appeal from the January 22, 1999, decision of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REMAND the case to the Court of Appeals. The Court of Appeals shall then remand the case to the Marquette Circuit Court to conduct a Ginther evidentiary hearing on defendant's claim that his failure to timely seek appellate review was caused by ineffective assistance of counsel. If the trial court finds in favor of defendant's claim, then the Court of Appeals shall treat defendant's application as having been timely filed, and shall then either grant or deny the application.
People v Ginther, 390 Mich. 436 (1973).
After pleading guilty to one count of third-degree criminal sexual conduct, MCL 750.520d(1)(a); MSA 28.788(4)(1)(a), defendant received a seven to fifteen year sentence on March 21, 1997. Appellate counsel filed a motion to withdraw the plea, which the trial court denied on October 21, 1998. Counsel then moved for reconsideration, which the court denied on November 20, 1998. On December 9, 1998, counsel filed an application for leave to appeal, which the Court of Appeals dismissed on January 22, 1999, as untimely:
[A]ppellant failed to file the application within the time period required by MCR 7.205(F)(3). Furthermore, the exceptions found in MCR 7.205(F)(4) are inapplicable because the application was not filed within 21 days of the order denying a timely postjudgment motion. The court rules do not provide for a motion for rehearing of the order denying the postjudgment motion prior to the filing of the application within the 21 day period.
Appellate counsel sent defendant a letter advising him of the dismissal and asserting that the Court of Appeals clerk's office had led her to believe that she could file the application after a decision on the motion for reconsideration. Defendant now seeks leave to appeal to this Court.
The Court of Appeals correctly determined that defendant's application was untimely. He did not file it within twelve months of the order or judgment on the merits, i.e., the judgment of sentence, as required by MCR 7.205(F)(3). MCR 7.205(F)(4) extends the deadline when a defendant files an application for leave to appeal within 21 days after the trial court decides a motion to withdraw a plea. Defendant did not, however, file the application within 21 days of the trial court's denial of the motion to withdraw. Rather, he moved for reconsideration and then filed the application within 21 days of the denial of reconsideration. MCR 7.205(F)(4) provides no extension with respect to a motion for reconsideration. The application was thus untimely, making dismissal proper. See People v Sconious, 448 Mich. 643 (1995) (affirming the Court of Appeals dismissal of an appeal and rejecting the notion that a reconsideration motion extends the deadline).
While the application was untimely, defendant may be entitled to relief if he can establish ineffective assistance of appellate counsel. Accordingly, we remand the case so that the trial court may conduct an evidentiary hearing and determine whether defendant's failure to timely seek appellate review was a result of ineffective assistance of counsel.
Court of Appeals No. 216281.
Cavanagh, J., states as follows:
Pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, I would vacate the Court of Appeals orders dated January 22, 1999, and March 11, 1999, would remand the case to the Court of Appeals and direct that Court to treat defendant's application as having been timely filed, and then to either grant or deny the application.
Kelly, J., joins in the statement of Justice Cavanagh.