At the CDRC, we regularly receive questions from defense attorneys around the state. In this column, we reprint our answers to common or interesting questions that might be helpful to a wider audience. 

In this month's issue, we address two related questions about Ginther hearings and motions to remand.

Question 1. I’m a little confused about whether I need to file a motion for remand in the Court of Appeals to raise an ineffective assistance of counsel claim.

I initially raised the same issue in the trial court by filing a motion for a new trial that also requested a Ginther hearing. In support of my motion, I submitted affidavits of the alibi witness, attesting that she was with my client in another location at the time of the robbery, and my client’s trial attorney, who attested that he chose not to call the alibi witness because the government’s case was weak and he did not want to distract the jury from this inescapable fact. The trial court denied the motion for a new trial without a hearing because it concluded my motion failed to overcome the presumption that trial counsel’s strategic decision not to call the alibi witness was objectively reasonable.

I understand that the next step in the process is for me to file a brief on appeal in the Court of Appeals, but I’m going back and forth on whether I need to move for remand on the issue. Both affidavits are already part of ‘the record’ and the trial court has already held that it would deny my client’s motion for a new trial even if the alibi witness and his trial attorney testified to the facts set forth in their affidavits. 

Question 2. I raised trial counsel’s failure to call an expert as the sole argument supporting reversal of my client’s conviction, but the Court of Appeals denied remand, and so it will presumably affirm her convictions, since there is nothing in the record establishing why trial counsel did not call an expert or what the expert would have testified to at trial. Is there anything else I can do?

The Supreme Court’s decision in People v Ginther, 390 Mich 436 (1973), which serves as the namesake of ‘Ginther hearings,’ preceded the U.S. Supreme Court’s recognition that ineffective assistance of trial counsel violates criminal defendants’ right to counsel under the Sixth Amendment, as well as the promulgation of the Michigan Court Rules. But even though it is more than a half-century old, review of the decision is helpful in understanding today’s practice. 

Herbert Ginther pled guilty to breaking and entering after the trial court denied his request for substitute trial counsel and for a change of venue or recusal of the trial court judge. After he was sentenced to prison, Mr. Ginther’s appellate counsel filed a motion to remand in the Court of Appeals so that he could seek plea withdrawal based on an ineffective assistance of counsel claim, and also filed a brief on appeal arguing that Mr. Ginther’s plea was invalid due to his attorney’s ineffective assistance, and the trial court’s denial of substitute counsel and recusal. 

The Court of Appeals denied remand and then affirmed Mr. Ginther’s conviction because the record did not support his claims of ineffective assistance of counsel or judicial bias.¹ His motion for substitute counsel alleged only that his trial counsel “didn't show much interest” in his case, and his motion for recusal presented only “unfounded fears” of judicial bias. Because “there [wa]s nothing in the record to show that his appointed counsel was incompetent” or that the trial judge had been prejudiced against him, the Court of Appeals held that he had not established his entitlement to relief on appeal and affirmed.² 

The Supreme Court granted leave to appeal, reversed the Court of Appeals, and remanded for a postconviction evidentiary hearing to allow Mr. Ginther to supplement the existing record to establish he was entitled to relief on appeal. That is, the Supreme Court granted Mr. Ginther a Ginther hearing. 

The Court held that when a defendant challenges the performance of his attorney prior to trial, “the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.”³ It explained that although the trial court had erred by failing to conduct a factual inquiry into Mr. Ginther’s motion for substitute counsel before it denied his motion, establishing this error did not warrant plea withdrawal because the trial court’s failure to conduct the hearing did not establish that Mr. Ginther’s attorney was actually ineffective or entitle him to the presumption that his motion would have been successful.⁴ The Court held that “until he establishes the factual substantiality of the claims … the only relief we could properly grant would be to require an evidentiary hearing concerning those claims.”⁵ For this reason, and because the goal of your client’s appeal is not to establish that the trial court erred in denying your motion for a Ginther hearing, but to establish that he is entitled to a new trial, you must move for remand in the Court of Appeals even if you can demonstrate that the trial court erred by failing to grant one at the outset.

In Ginther, the Court stated that to demonstrate entitlement to substantive relief on appeal when raising claims based on factual allegations that are not supported by the record, defendants should initially motion the trial court for plea withdrawal or a new trial, “and seek to make a separate record factually supporting the claims.”⁶ MCR 7.208(B)(1) provides that defendants entitled to appeal by right may file a motion for a new trial or resentencing in the trial court at any point before their Court of Appeals brief is due. Although such postconviction motions can, and frequently are, wholly supported by the existing record, when a party files a motion that “is based on facts not appearing of record,” MCR 2.119(E)(2) provides that “the court may hear the motion on affidavits presented by the parties, or may direct that the motion be heard wholly or partly on oral testimony…”

When the trial court refuses a request for an evidentiary hearing to allow the defendant to establish their entitlement to relief, Ginther held “the defendant should seek on appeal, not a reversal of his conviction, but an order directing the trial court to conduct the needed hearing.”⁷ But in practice, you must seek both simultaneously. MCR 7.211(C)(1) requires a party seeking remand to identify an issue and show “that development of a factual is required for appellate consideration of the issue.”⁸ If the issue identified is only the erroneous denial of an evidentiary hearing the issue would likely be deemed moot because an order that merely directs the trial court to conduct an evidentiary hearing for its own sake “cannot have any practical legal effect upon a then existing controversy.”⁹ Conversely, if you raise an issue in your client’s appellate brief that is not supported by the existing record without also seeking remand to supplement the record, relief will be denied for the same reason the Supreme Court held Mr. Ginther was not entitled to plea withdrawal based on the trial court’s error in denying his request for substitute counsel without conducting an evidentiary hearing: The record will not support your client’s right to relief.

The Court of Appeals has frequently held that a trial court’s denial of a motion that seeks a Ginther hearing is to be reviewed for an abuse of discretion,¹⁰ but the level of deference this actually requires is somewhat unclear, given Ginther’s holding and the rule that trial courts necessarily abuse their discretion by making an error of law.¹¹ Moreover, in Ginther, the Supreme Court held that because Mr. Ginther’s entitlement to plea withdrawal required development of the existing record, the Court of Appeals “improperly denied a remand to the trial court.”¹²  

Immediately after Ginther issued, the Supreme Court reversed several Court of Appeals decisions that had denied the defendants’ motions to remand and then denied their briefs’ arguments for substantive relief because the existing record did not establish their entitlement to relief.¹³ The Court continues this practice today,¹⁴ but it has not done so consistently and has never articulated a standard for deciding when the Court of Appeals is required to grant remand for a Ginther hearing.

At least some members of the Supreme Court have recognized that by denying a defendant’s motion for remand to supplement the record in support of an issue the Court of Appeals is able to preclude relief on the issue. For example, Justice Cavanagh dissented from the Court’s decision to deny leave from a Court of Appeals opinion that she said “essentially affirmed defendant's conviction on the basis of defendant's failure to establish facts that a defendant would normally establish at an evidentiary hearing,” after having “denied defendant the opportunity to establish those facts by denying his motion to remand for a Ginther hearing.”¹⁵ 

Because the standards that must be satisfied to establish that a trial court erred by failing to conduct an evidentiary hearing and that the Court of Appeals erred in denying remand for an evidentiary hearing are unsettled, there is no approach that is guaranteed to prevent a denial of a motion for a Ginther hearing and a motion for remand for a Ginther hearing from turning into a Court of Appeals opinion rejecting an argument based on lack of record support. However, here are affirmative steps you can take to guard against this: 

• To the extent possible, your motion for remand should summarize the witnesses you intend to call, the testimony you expect those witnesses to provide, and any other evidence you intend to present, and cite documents in your appendix as the basis for your expectations. 

• A Court of Appeals order denying remand is an interlocutory order so it can be appealed through an interlocutory application to the Supreme Court.¹⁶ Even if the Supreme Court does not grant your application or peremptorily reverse the denial of remand, by pursuing remand on an interlocutory basis, you are signaling to the Court of Appeals merits panel and also to the Supreme Court the importance of issue and of remand to your client’s entitlement to relief on the issue. 

• A Court of Appeals order denying a motion to remand that was filed concurrently with the brief on appeal is usually entered without prejudice to the merits or case call panel “determining that remand is necessary once the case is submitted on a session calendar.” This usually occurs about a month before oral argument. Once you are notified of oral argument, you should file a new motion for remand alongside a motion to stay oral argument so the evidentiary hearing can be conducted.

• If the merits panel also denies remand or the motion has not been ruled on before oral argument, you should renew your request for remand during oral argument or remind the panel that your motion to remand is still pending. 

• If the Court of Appeals affirms your client’s conviction because its denial of remand prevented you from supplementing the existing record in support of your argument for substantive relief, your Supreme Court application should seek remand for an evidentiary hearing as an alternative form of relief and remind the Court that Article 1, § 20 guarantees your client the right to appeal and “to have such reasonable assistance as may be necessary to perfect and prosecute an appeal,” and that Ginther held that “[i]f the record made before a defendant is convicted does not factually support claims he wishes to urge on appeal, he should move in the trial court for a new trial or, where the conviction is on a plea of guilty, to set aside the plea, and seek to make a separate record factually supporting the claims.”¹⁷ Ginther recognized that by denying defendants the opportunity to supplement the existing record in support of an issue on appeal, the lower courts erred, and the proper remedy for this error was remand for a Ginther hearing.

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