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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v BRIAN RICHARDSON, a/k/a BRYAN LIGON, Defendant-Appellee.

UNPUBLISHED June 28, 2012

No. 306427 Wayne Circuit Court LC No. 06-002364

Before: K. F. KELLY, P.J., and WILDER and BOONSTRA, JJ. PER CURIAM. The prosecution appeals by leave granted1 a trial court order granting the motion of defendant, Brian Richardson, for relief from judgment and resentencing. We reverse and remand for reinstatement of defendant's original sentence. On June 15, 2006, defendant was convicted of possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv), possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), felon in possession of a firearm, MCL 740.224f, and possession of a firearm during the commission of a felony (third offense), MCL 750.227b.2 Defendant was sentenced on July 5, 2006, as a habitual third offender, MCL 769.11, to concurrent terms of 10 months to 40 years' imprisonment each for the possession with intent to deliver heroin and cocaine convictions, six months to eight years' imprisonment for the possession with intent to deliver marijuana conviction, and 6 months to 10 years' imprisonment for the felon-in-possession conviction, to be served consecutive to 10 years' imprisonment for the felony-firearm conviction. Defendant appealed these convictions, but this Court affirmed.3 Defendant then moved for relief

1

People v Richardson, unpublished order of the Court of Appeals, entered November 23, 2011 (Docket No. 306427).

Defendant was also charged with maintaining a drug house, MCL 333.7405(1)(d), but the trial court dismissed this charge.
3

2

People v Richardson, unpublished opinion of the Court of Appeals, issued February 5, 2009 (Docket No. 272367).

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from judgment and resentencing based on the court's use of a 1995 plea-based conviction to enhance defendant's 2006 sentence. Defendant claimed that, after the 1995 conviction, the sentencing court failed to inform him that he could request counsel to apply for leave to appeal. He asserted that, because he had been denied the opportunity to request appellate counsel, his 1995 conviction was constitutionally infirm and could not be used to enhance his 2006 conviction. The trial court agreed and granted defendant's motion and ordered resentencing. The prosecution claims on appeal that the trial court abused its discretion in granting defendant's motion for relief because, at the time of defendant's 1995 conviction, Michigan did not recognize a right to counsel to apply for leave to appeal plea-based convictions under either the Michigan or the federal constitution. The prosecution argues the sentencing court's failure to inform defendant of his opportunity to request counsel did not deprive him of his Sixth Amendment4 right to counsel and that defendant's 1995 conviction was not constitutionally infirm and can be used to enhance his 2006 sentence. We agree. This Court reviews a trial court's decision on a motion for relief from judgment for an abuse of discretion. People v Clark, 274 Mich App 248, 251; 732 NW2d 605 (2007), quoting People v McSwain, 259 Mich App 654, 681; 676 NW2d 236 (2003). "An abuse of discretion occurs only `when the trial court chooses an outcome falling outside [the] principled range of outcomes.'" People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008), quoting People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). A court "by definition abuses its discretion when it makes an error of law." Koon v US, 518 US 81, 100; 116 S Ct 2035; 135 L Ed 2d 392 (1996), citing Cooter & Gell v Hartmarx Corp, 496 US 384, 405; 110 S Ct 2447; 110 L Ed 2d 359 (1990). Review of factual findings supporting a trial court's grant of relief is for clear error. Clark, 274 Mich App at 251, quoting McSwain, 259 Mich App at 681. In a motion for relief from judgment, "[t]he defendant has the burden of establishing entitlement to the relief requested." MCR 6.508(D). Normally, a court may not grant relief if the motion asserts grounds "which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter" unless the defendant can show good cause for his failure to raise such grounds earlier and actual prejudice resulting from the alleged error. MCR 6.508(D)(3). The prosecution argues that defendant has not shown good cause for waiting 12 years to challenge his conviction and sentence or actual prejudice. However, if the defendant can establish a jurisdictional defect, the requirement to show good cause and actual prejudice does not apply. MCR 6.508(D)(3). An alleged Sixth Amendment right-to-counsel violation is a jurisdictional defect negating that requirement and allowing collateral attack of a conviction wrongly obtained for lack of counsel. People v Carpentier, 446 Mich 19, 29-30; 521 NW2d 195 (1994). Therefore, defendant need not show good cause or actual prejudice as prerequisites to a grant of relief. Defendant nonetheless has the burden of establishing entitlement to relief. Before 1994, criminal defendants in Michigan who were convicted based on their pleas of guilty or nolo contendere were entitled to appeal those convictions as of right. Const 1963, art. 1,

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