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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v KAREN SUE BILLINGS, Defendant-Appellant.

FOR PUBLICATION April 23, 2009 9:00 a.m. No. 282131 Saginaw Circuit Court LC No. 06-028104-FH

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GORDON LEE SHIVELY, Defendant-Appellant. Advance Sheets Version Before: Bandstra, P.J., and Whitbeck and Shapiro, JJ. SHAPIRO, J. These consolidated appeals involve defendants who pleaded guilty of crimes after the United States Supreme Court issued Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005), which declared MCL 770.3a unconstitutional. In both cases, the trial court elicited an acknowledgement from defendants that they understood they were waiving their right to appellate counsel appointed at taxpayers' expense as a condition of their plea. Both defendants filed pro per and delayed applications for leave to appeal. This Court remanded both cases to the trial court for appointment of counsel and directed appellate counsel to address whether a defendant can waive the right to appointed appellate counsel as a plea condition imposed by the trial court, right which otherwise attaches pursuant to Halbert.1 We hold that a No. 284474 Saginaw Circuit Court LC No. 06-028103-FH

People v Shively, unpublished order of the Court of Appeals, entered September 4, 2008 (Docket No. 284474); People v Billings, unpublished order of the Court of Appeals, entered June
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trial court may not impose waiver of appointed appellate counsel as a plea condition. With respect to defendants' other issues, we affirm both convictions and sentences. I. Factual Background Defendants Karen Billings and Gordon Shively, sister and brother, were initially charged in a multi-count information alleging participation in a criminal enterprise, MCL 750.159j(1), forgery, MCL 750.248, and uttering and publishing a forged financial instrument, MCL 750.249. Each defendant agreed to enter a guilty plea to the criminal enterprise count in exchange for dismissal of the remaining counts. At their separate plea hearings, the trial court informed each of them that in addition to the trial rights they were giving up by entering the guilty plea, they were also "giving up any right you may have to have an attorney appointed at public expense to assist you in filing an application for leave to appeal, or any other post-conviction remedies." Each defendant indicated his or her acknowledgement. II. Waiver of Appellate Counsel Defendants argue that the trial court violated their Sixth Amendment right to appellate counsel pursuant to Halbert by requiring them to waive their right to appointed appellate counsel in order to plead guilty. We review de novo issues involving questions of constitutional law. People v Scott, 275 Mich App 521, 526; 739 NW2d 702 (2007). A. Mootness The prosecution argues that this Court should not address this issue because it is moot, as defendants have been provided with appellate counsel. As an initial matter, we fail see how this issue is moot, as we specifically ordered appellate counsel to raise it when we remanded for the appointment of counsel. Moreover, even if we were inclined to agree that the issue is moot, we conclude that the issue should still be addressed "because it is one that pertains to similarly situated defendants, and is capable of repetition, yet may evade judicial review." People v James, 272 Mich App 182, 184; 725 NW2d 71 (2006), citing Federated Publications Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002). B. Caselaw 1. Halbert v Michigan Following a voter-approved constitutional amendment in 1994 that limited appeals by those who plead guilty or nolo contendere to appeals by leave granted by the court, Const 1963, art 1,

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Michigan Law