At the CDRC, we regularly receive questions from defense attorneys around the state. In this column, we will reprint our answers to common or interesting questions (with any identifying case details omitted or modified) that might be helpful to a wider audience.

Question: I’ve been a criminal defense attorney for over five years but am currently handling my first appeal. 

My client pled nolo contendere pursuant to a plea and sentence agreement that allowed him to avoid a substantial prison sentence. He did not want to seek resentencing or plea withdrawal. He did want to challenge the requirement that he register as a sex offender though, so I filed an application for leave to appeal arguing that SORA registration is cruel or unusual punishment as applied to the facts of his case. 

The Court of Appeals just entered an order denying the application “for lack of merit on the grounds presented.” I thought we’d raised a legitimate argument, but now my client’s upset that I suggested he raise a meritless argument and I’m a little concerned that I may have violated the Rule of Professional Conduct that prohibits attorneys from raising frivolous arguments. 

The Court of Appeals’ denial of your application for leave to appeal “for lack of merit in the grounds presented” does not indicate that your arguments were frivolous or suggest that you violated Rule 3.1 of Michigan’s Rules of Professional Conduct, which prohibits attorneys from raising frivolous arguments. That is just the standard language for denying leave to appeal that our Court of Appeals uses.

You are far from alone in your concern and confusion about the meaning of this language. Some Michigan circuit court judges have misinterpreted “lack of merit” as being synonymous with “frivolous,”¹ and both the United States Supreme Court and the Sixth Circuit Court of Appeals have struggled to discern what the Michigan Court of Appeals means when it denies an application “for lack of merit on the grounds presented.”² You are also not alone in having your application summarily denied. In 2023, for example, the Court of Appeals denied leave to appeal to 87% of criminal defendants convicted by plea who filed applications.³ The Court used identical language in all, or nearly all of its orders in those cases.

When a defendant in Michigan pleads guilty, they waive not only their right to a trial by jury, but also their right to an appeal of right.⁴ This waiver does not prevent them from challenging the validity of their plea and sentence on appeal, but it does require that they apply for leave to appeal in the Court of Appeals.⁵ In contrast, defendants found guilty at a trial are guaranteed an “appeal of right,”⁶ which allows them to raise any issues they want in their appellate brief, and generally entitles them to a Court of Appeals opinion addressing each issue raised.⁷ 

The Michigan Constitution previously guaranteed all criminal defendants an appeal of right. This changed in 1994, when Michigan voters ratified “Proposal B,” which modified Article 1, § 20 of the Michigan Constitution and made “appeals from plea-based convictions discretionary.”⁸ Proposal B was submitted to voters by the Legislature to “reduce a crushing burden on our appellate courts,” and more specifically, “ ‘to help control the case load [sic] of the Michigan Court of Appeals.’ ”⁹ 

Today, “the Court of Appeals, in its orders denying properly filed applications for leave, uniformly cites ‘lack of merit in the grounds presented’ as the basis for its decision.”¹⁰ These orders do not attempt to explain why or how the issues presented “lack merit,” presumably because issuing a reasoned decision would defeat the gains in efficiency that Proposal B was designed to achieve. 

The Court of Appeals has suggested, however, that it has the discretion to deny leave to appeal, even when the application raises meritorious issues that, if decided, would entitle the appellant to the relief sought.¹¹ It has also explicitly acknowledged, at least in retrospect, that it denied an application “for lack of merit on the grounds presented,” even though the application raised a constitutionally significant issue that had “a great deal of merit.”¹² The U.S. Supreme Court has analyzed this language and concluded that it “necessarily entails some evaluation of the merits of the applicant’s claims,” but also “may simply signal that the court found the matters asserted unworthy of the expenditure of further judicial resources.”¹³ The conclusion that the Court of Appeals sometimes denies legally meritorious applications as a matter of discretion is also supported by the dozens of Michigan Supreme Court orders issued each year remanding cases to the Court of Appeals “for consideration as on leave granted,” after the Court of Appeals had denied leave to appeal “for lack of merit on the grounds presented.” 

Despite this, when the Court of Appeals denies leave to appeal “for lack of merit in the grounds presented, the order means what it says—it is on the merits of the case.” Within the Sixth Circuit, these orders are considered “an adjudication on the merits” under the Antiterrorism and Effective Death Penalty Act, “absent some [additional] indication or Michigan procedural principle to the contrary.” While this affords the order a degree of deference that the Court of Appeals panel that voted to deny leave may not have intended, it also establishes the defendant “exhausted the remedies available in the courts of the state,” which is usually a prerequisite to prevailing on a habeas claim in federal court. 

It hurts to lose at any level in any case, but it might help to keep in mind that the vast majority of applications seeking leave to appeal a plea-based conviction are denied “for lack of merit on the grounds presented.” To reach the Supreme Court, you must first file an application in the Court of Appeals. And if you only raised issues the Court of Appeals wanted to exercise its discretion to hear, you almost certainly wouldn’t be pressing for the kinds of changes in the law that could result in your client’s sentence being declared unconstitutional, while offering hope and relief to others like him, enduring similar punishments.

Research & Training Attorney, CDRC

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