MAACS and SADO Achieve Significant Amendments to the Michigan Court Rules

       Effective January 1, 2021, the Michigan Supreme Court has adopted several important court rule amendments that promise to improve access to justice and criminal appellate practice. 

These amendments were proposed by a committee of attorneys from the Michigan Appellate Assigned Counsel System (MAACS) and the State Appellate Defender Office (SADO). As Chair of that committee, I had the privilege of working with many dedicated colleagues and outside partners including the State Bar of Michigan’s Appellate Practice Section (APS), the Michigan Court of Appeals, the Criminal Defense Attorneys of Michigan (CDAM), the Michigan Department of Corrections (MDOC), and the Prosecuting Attorneys Association of Michigan (PAAM). Perhaps most importantly, we had the support of a very engaged Michigan Supreme Court.

While not everyone agreed with everything all the time, the reforms below are a testament to the power of collaboration—smart lawyers and traditional adversaries working together in good faith to find fair and workable solutions to recurring problems. By removing these debates from the heat and pressure of litigation, we were able to achieve in one administrative cycle what could not have been won through years of court battles. Court rule amendments may lack the immediate gratification of dramatic courtroom victories, but their lasting impact will be no less significant.

A. Presentence interviews and reports – MCR 6.425

As many criminal appellate practitioners know, gaining access to a client’s accurate presentence investigation report (PSIR) can be difficult. As a confidential document containing sensitive information, the PSIR is not part of the public record, though it is essential to effective appellate representation.

Different jurisdictions have different approaches to PSIR retention and distribution, and the expectations are not always clear. Some trial courts maintain and distribute the PSIR themselves, whereas others expect counsel to get it from local probation officers or other MDOC staff. Tracking down a client’s PSIR can add significant time and frustration to appointed appellate practice.

In 2018, we partnered with the MDOC to address this problem by establishing a centralized process for counsel to request and obtain the PSIR by secure email directly from a designated MDOC records custodian. The new system worked well for a short time, until we realized that MDOC records frequently contained the report writer’s draft of the PSIR as prepared after the presentence interview but before sentencing. These reports often fail to account for corrections or deletions ordered by the court, such as the removal of improper allegations of wrongdoing or predictions about future dangerousness. Not only did this deprive counsel of a final corrected report for appeal, it also showed that the MDOC may be making decisions about classification, programming, or even parole based on information a judge has found improper.

Working with representatives from the MDOC and CDAM, we proposed three key changes to MCR 6.425, all of which were adopted by the Supreme Court. First, to protect incarcerated individuals from inaccurate information while in custody, the new MCR 6.425(D)(2)(a) requires probation officers to “certify that the report has been corrected” as ordered by a court, and “ensure that no prior version of the report is used for classification, programming, or parole purposes.”

Second, to ensure appellate counsel’s access to all sentencing information, MCR 6.425(E) now requires the MDOC to provide a copy of the corrected PSIR to counsel—and requires the court to provide “copies of any documents that were presented for consideration at sentencing, including the court’s initial copy of the presentence report if corrections were made after sentencing.” This also includes letters, victim impact statements, or other documents that could meaningfully impact the sentencing, but which might not (and perhaps should not) be attached to the final corrected PSIR.

Finally, to ensure fairness and access to counsel during a crucial point in the proceedings, the new MCR 6.425(A)(2) requires that “[o]n request, the probation officer must give the defendant’s attorney notice and a reasonable opportunity to attend the presentence interview.” This requirement fills a glaring omission in the rule and enjoys wide support from the bar. Indeed, shortly after we submitted our proposed amendments for consideration, the State Bar of Michigan’s Representative Assembly voted to propose similar language in MCR 6.005(J). Although appearing in a different place, our amendment will accomplish the same goal. It will also align the Michigan rules with Federal Rule of Criminal Procedure 32(c)(2), under which criminal defense counsel are generally expected to attend the presentence interview. In this capacity, counsel can protect clients from inappropriate questions or self-incrimination, and sometimes even help paint a more sympathetic picture for sentencing. It is long past time that the same opportunity should exist in state presentence interviews.

B. Restoration of appellate rights
– MCR 6.428

A useful tool for criminal appellate practitioners is MCR 6.428, which required trial courts to reset filing deadlines in cases where the defendant failed to appeal because appellate counsel neglected to perfect a timely appeal of right or otherwise provided ineffective assistance. The rule has been useful in providing a more immediate remedy for the ineffective assistance of counsel resulting in the loss of direct appeal. 

By its terms, however, the rule was limited in its scope. It did not apply to defendants who were deprived of their appellate rights due to errors by trial counsel (such as by neglecting to file a request for appointed appellate counsel) or the court (such as by misplacing a properly filed request for counsel) or to guilty-plea defendants who never had an “appeal of right” in the first place but were deprived of their right to file an application for leave to appeal.

Despite these limitations, the Michigan Supreme Court has routinely ordered the same relief in scenarios that technically fall outside the scope of the rule—presumably under notions of due process and commonsense fairness. But in the absence of a clear court rule, some lower courts have been less hospitable to these claims, leaving untold numbers of indigent defendants to rely on MCR 6.500 as the only possible remedy for glaring constitutional violations resulting in the total loss of appellate review. Even when errors are eventually corrected, many years can pass before a direct appeal can even commence. If the appeal has merit, justice has been delayed. And even if it does not, the delay and extended litigation can place an unneeded burden on courts and parties.

To address these problems, we proposed a rewrite of the rule, which the Supreme Court has adopted. Renamed “Restoration of Appellate Rights,” the rule now restarts the filing deadlines for any defendant—“whether convicted by plea or at trial”—who “was denied the right to appellate review or the appointment of appellate counsel due to errors by the defendant’s prior attorney or the court, or other factors outside the defendant’s control . . . .” Providing immediate relief for clear and prejudicial constitutional violations will benefit our entire justice system.

C. Extension of trial court
motion deadlines – MCR 7.208(B)(1)

A unique feature of Michigan’s criminal appellate procedure is the opportunity to develop a factual record in support of new claims while on direct appeal. This gives indigent defendants an uncommon ability to litigate ineffective assistance of trial counsel and other fact-dependent claims at a stage when they also have a right to counsel.

During trial appeals by right, there are two primary mechanisms for obtaining an evidentiary hearing. First, under MCR 7.208(B)(1), a “defendant may file in the trial court a motion for a new trial, for judgment of acquittal, to withdraw a plea, or to correct an invalid sentence.” Such motions are permitted as a matter of right if timely, which meant “[n]o later than 56 days after the commencement of the time for filing the defendant-appellant’s brief.” Extensions are not permitted, and a trial court would lack jurisdiction to entertain a motion filed beyond 56-day deadline.

At that point, a defendant would have to rely on the second mechanism for obtaining an evidentiary hearing. Under MCR 7.211(C)(1)(a), a defendant “may move to remand to the trial court.” The deadline for such a motion was “within the time provided for filing the appellant’s brief”—which is not a jurisdictional deadline and can be extended by motion. Moreover, even after expiration of this deadline, the Court of Appeals has routinely considered late-filed motions, or revisited motions that were previously denied but later renewed.

While both approaches further the interest of permitting factual development on direct appeal, the interaction of their timing provisions has given rise to inefficient piecemeal litigation or worse. When an appellate attorney extends the non-jurisdictional briefing deadline (typically for an additional 56 days), it will often lead to a corresponding delay in taking a deep dive into the record and investigation. In that scenario, the need for an evidentiary hearing might only become apparent after 56 days have elapsed, along with the defendant’s right to file a motion directly in the trial court. Instead of being entitled to a hearing, the defendant would have to move for a remand while filing a brief at the same time. The denial of that motion would mean the loss of a hearing to which the defendant otherwise would have been entitled. And even the grant of that motion means the defendant’s filed appellate brief may be based on an incomplete or inaccurate set of facts. 

In response to these issues, we proposed slight but meaningful revisions to both rules, which the Supreme Court adopted. In MCR 7.208(B)(1), the 56-day jurisdictional deadline has been replaced with the word “within,” meaning trial court motions are now due “[w]ithin the time for filing the defendant-appellant’s brief.” And in MCR 7.211(C)(1)(a), that same language has been removed, meaning there is no longer any explicit deadline for filing a motion to remand—which is consistent with Court of Appeals practice.

By mirroring the trial court motion deadline with the appellate briefing deadline, a defendant now has a clear choice whether to file a trial court motion to develop new facts and issues before filing an appellate brief—so long as the appellate brief would otherwise be timely, even with extensions. And a defendant still has an avenue to request remand later, even though the need for such remands will be less common, and the Court of Appeals will presumably expect good reasons why new factual issues were not litigated earlier in the trial court under the expanded right to do so. 

There are two additional changes worth noting, each of which represents a nod to our partners in this collaborative process. Under MCR 7.208(B)(3), the trial court’s expected timeline for deciding postjudgment motions has increased from 28 to 56 days. This reflects the sentiment of many trial court judges that 28 days is an unreasonably short window, as well as the Court of Appeals existing practice of typically allowing 56 days plus extensions for good cause. And under MCR 7.211(C)(1)(d), Court of Appeals proceedings are now stayed whenever a motion to remand is “filed” rather than “granted.” This reflects the frustration of many prosecutors about the inefficiency of responding to an appellate brief while simultaneously litigating remand proceedings in the trial court. Though not necessarily advantageous to criminal defendants, we agreed with judges and prosecutors and proposed these commonsense reforms in the spirit of collaboration.

D. Overhaul of rules governing
applications for leave to appeal
– MCR 7.205

Our most extensive project was a package of proposed amendments to MCR 7.205 and several related court rules. We proposed these amendments jointly with the APS after months of drafting alongside Court of Appeals staff, which helped further our common goal of streamlining and clarifying timelines for applications for leave to appeal, especially in criminal cases where common practice and expectations have often been at odds with the rule’s text. While vast in scope, these amendments change very little in terms of appellate procedure. This was intentional—and essential to securing broad support for such a significant but necessary overhaul.

The jurisdictional deadline for filing a criminal application for leave to appeal has traditionally been understood as six months from sentencing under the prior MCR 7.205(G)(3), though this limitation does not apply to applications filed within 42 days after other qualifying circumstances under the prior (G)(4)(c), but only if the defendant can also meet the requirements of the prior (G)(4)(a)-(b). To distill the true deadlines required a tortured reading of these provisions. And even then, criminal applications for leave to appeal were virtually always classified as “late” or “delayed” under the rule, even if entirely timely based on standards of effective representation. As the agency responsible for admitting, training, and overseeing dozens of new plea-appeal attorneys every year, MAACS has been acutely aware of the confusion caused by the old rule. Some of it is merely distracting, such as when we must explain to clients or their families that an attorney’s “late” application was in fact perfectly timely. But there are serious consequences as well, such as when attorneys miss a jurisdictional filing deadline and must withdraw in favor of substitute counsel and a reset filing deadline, causing significant delay for the client and expense to the appointing court.   

Under the new rule, criminal applications for leave to appeal are no longer deemed “late” if filed within clear deadlines, as now provided under MCR 7.205(A)(2). That provision provides unambiguously that in a “criminal case involving a final judgment . . . , an application for leave to appeal filed on behalf of the defendant must be filed within the later of” six months after the judgment or 42 days after certain specified events, including the appointment of counsel or substitute counsel, or the filing of transcripts. Another specified event is the resolution of a postjudgment trial court motion, such as a motion to withdraw plea or correct an invalid sentence. This is the only real change to a deadline—from 21 days to 42—and it is purely for the sake of consistency with other qualifying events. 

Among other features, the new MCR 7.205(A)(4) retains a provision entitled “Delayed Application for Leave to Appeal.” Although this no longer applies to postjudgment applications on behalf of criminal defendants, it does apply to preconviction and prosecutor applications. Additionally, the lengthy and confusing deadline provisions found in three other rules—MCR 6.310(C) (motion to withdraw plea), MCR 6.429(B)(3) (motion to correct invalid sentence), and MCR 6.431 (motion for new trial)—have been eliminated in favor of a simple cross-reference to the new MCR 7.205(A)(2).

Particularly given its joint submission with the APS and collaboration with the Court of Appeals, the success of this proposal depended on many advocates’ willingness to set aside (at least for the moment) their policy differences and interests in more substantive changes. It was gratifying to see so many diverse and passionate stakeholders take up the shared goal of a simpler and more coherent court rule that will improve appellate practice for courts and practitioners alike.

The amendments to MCR 6.425, 6.428, 7.208, and 7.211 are contained in ADM File Nos. 2018-33, 2019-20, and 2019-38.  See the Michigan Supreme Court’s September 30, 2020 Order here:

The amendments to MCR 7.205 and related rules are contained in ADM File No. 2019-27. See the Michigan Supreme Court’s September 23, 2020 Order here:

by Bradley R. Hall
Michigan Appellate Assigned Counsel System

From 2019-2020, Brad served as Chair of the State Bar of Michigan Appellate Practice Section. He is a graduate of Northwestern University Pritzker School of Law, where he gained practical experience working at the Southern Center for Human Rights, Cook County Public Defender Office, and Center on Wrongful Convictions. After a clerkship with Judge Nancy G. Edmunds on the United States District Court for the Eastern District of Michigan, he spent eight years as a staff attorney at the Federal Defender Office in Detroit, handling trials, appeals, and habeas corpus cases. As amicus counsel for the Criminal Defense Attorneys of Michigan, he has briefed and argued several significant cases in the Michigan Supreme Court and Michigan Court of Appeals, one of which was awarded a Distinguished Brief Award by Cooley Law School.

Brad is the immediate past Chair of the State Bar of Michigan Appellate Practice Section.