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Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v MARK ALLEN MAXSON, Defendant-Appellant. _______________________________ BEFORE THE ENTIRE BENCH. MARKMAN, J.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED DECEMBER 22, 2008

No. 129693

At issue here is whether the United States Supreme Court's decision in Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005), should be applied retroactively to cases in which a defendant's conviction has become final. In lieu of granting leave to appeal, we affirm the judgment of the trial court denying defendant's motion for relief from judgment, and we conclude under federal and state law that Halbert should not be applied retroactively to cases in which a defendant's conviction has become final.

I. FACTS AND PROCEDURAL HISTORY
In 2001, defendant pleaded guilty to two counts of second-degree criminal sexual conduct, and subsequently failed to request appointed counsel or to file a direct appeal. On June 23, 2005, the United States Supreme Court issued Halbert, which held that indigent defendants who plead guilty to criminal offenses are entitled to appointed appellate counsel on direct appeal. Id. at 610. After Halbert was decided, defendant requested appointed counsel in the instant motion for relief from judgment. However, because defendant's conviction was final before

Halbert was decided, defendant is only entitled to counsel if the rule announced in Halbert is applied retroactively. II. STANDARD OF REVIEW The retroactivity of a court's ruling presents an issue of law that this Court reviews de novo. People v Sexton, 458 Mich 43, 52; 580 NW2d 404 (1998). III. ANALYSIS A. RETROACTIVITY UNDER FEDERAL LAW "New legal principles, even when applied retroactively, do not apply to cases already closed." Reynoldsville Casket Co v Hyde, 514 US 749, 758; 115 S Ct 1745; 131 L Ed 2d 820 (1995). This is because "at some point, `the rights of the parties should be considered frozen' and a `conviction . . . final.'" Id., quoting United States v Estate of Donnelly, 397 US 286, 296; 90 S Ct 1033; 25 L Ed 2d 312 (1970) (Harlan, J., concurring). There are, however, "certain special

concerns-- related to collateral review of state criminal convictions-- that affect 2


which cases are closed, for which retroactivity-related purposes, and under what circumstances." Id. In Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989), the United States Supreme Court set forth the federal standard for determining whether a rule regarding criminal procedure should be applied retroactively to cases in which a defendant's conviction has become final. Teague established the "general rule" that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Id. at 310. However, Teague laid down two exceptions to this general rule: first, a new rule should be applied retroactively if it places "`certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" id. at 307 (citation omitted); and second, a new rule should be applied retroactively "if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty." Id. (citations and internal quotation marks omitted). Thus, the first question under Teague is whether the rule in Halbert constitutes a new rule. "`[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.'" Penry v Lynaugh, 492 US 302, 314; 109 S Ct 2934; 106 L Ed 2d 256 (1989) (citation omitted). Deciding whether a rule is "new" requires a court to determine "whether `a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to 3


conclude that the rule [he] seeks was required by the Constitution.'" O'Dell v Netherland, 521 US 151, 156; 117 S Ct 1969; 138 L Ed 2d 351 (1997) (emphasis added and internal citations omitted). If a reasonable jurist would not have felt compelled by existing precedent, then the rule is new. Beard v Banks, 542 US 406, 413; 124 S Ct 2504; 159 L Ed 2d 494 (2004). In other words, the relevant question is not simply whether existing precedent might have supported the rule, but whether the rule "was dictated by then-existing precedent." (emphasis in original). We conclude that the rule in Halbert constitutes a new rule. Although Halbert found support in the earlier United States Supreme Court decision of Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963), that case did not clearly require the outcome in Halbert. Douglas held that when a state grants a first appeal as of right, the state is required to appoint appellate counsel for indigent defendants. Id. at 357. Because Michigan does not grant an appeal as of right to a defendant who pleads guilty,1 and because the United States Supreme Court had previously decided that appointment of appellate counsel is unnecessary when an appellate court, such as a state's highest court, has the discretion to choose whether to reach the merits of a defendant's appeal, Ross v Moffitt, 417 US Id. at 413

Defendants who seek to appeal their guilty pleas must file an application for leave to appeal with the Court of Appeals. MCR 7.203(A)(1)(b).

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600; 94 S Ct 2437; 41 L Ed 2d 341 (1974), a reasonable jurist could well conclude that Douglas did not compel the result in Halbert. Because "it is more difficult . . . to determine whether [the Supreme Court] announce[d] a new rule when a decision extends the reasoning of [its] prior cases," Saffle v Parks, 494 US 484, 488; 110 S Ct 1257; 108 L Ed 2d 415 (1990), the "new rule" principle is designed to "validate[] reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v McKellar, 494 US 407, 414; 110 S Ct 1212; 108 L Ed 2d 347 (1990). In Halbert, the dissenting Supreme Court justices argued against extending Douglas, further supporting the conclusion that Douglas did not compel the result in Halbert and that this Court's previous interpretation was reasonable. Because the rule in Halbert was new, the remaining question under Teague is whether either of the two Teague exceptions applies. The first exception is clearly inapplicable, as the rule in Halbert does not concern a rule that "`forbid[s] criminal punishment of certain primary conduct . . . [or] prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.'" O'Dell, supra at 157 (citation omitted). Thus, the only issue is whether Halbert constituted a "watershed" decision that involved "procedures . . . implicit in the concept of ordered liberty." Graham v Collins, 506 US 461, 478; 113 S Ct 892; 122 L Ed 2d 260 (1993) (citations and internal quotation marks omitted).

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The United States Supreme Court has repeatedly emphasized the limited scope of the second Teague exception. The Court has observed that because any such rule "would be so central to an accurate determination of innocence or guilt [that it is] unlikely that many such components of basic due process have yet to emerge, it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception." Beard, supra at 417 (internal citations and quotation marks omitted). The Supreme Court has referred to the right to counsel set forth in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), as an example of a rule that would fall into the second Teague exception. It is significant that in referring to this example, the Supreme Court observed, "In providing guidance as to what might fall within this exception, we have repeatedly referred to the rule of Gideon (right to counsel), and only to this rule." Beard, supra at 417 (emphasis added and internal citation omitted). Notably, the Sixth Amendment right to counsel articulated in Gideon and its progeny has a constitutional basis distinct from that underlying the Douglas line of cases addressing the right to counsel on appeal that are rooted in the Equal Protection and Due Process clauses of the Fourteenth Amendment. Further,

considering that Halbert is unlikely to apply to any situation other than Michigan's unique legislative system of appeals from plea-based convictions, we agree with the Sixth Circuit that "[i]t does not represent a shift in `bedrock procedural elements' and it cannot be said to be `on par' with Gideon." Simmons v Kapture, 474 F3d 869, 887 (CA 6, 2007) (Reeves, J., dissenting), adopted by Simmons v 6


Kapture, 516 F3d 450, 451 (CA 6, 2008) (holding that Halbert is not retroactive under Teague). Additionally, a state is not required to provide any appellate proceedings at all for defendants who plead guilty. Halbert, supra at 610. In Goeke v Branch, 514 US 115; 115 S Ct 1275; 131 L Ed 2d 152 (1995), the Supreme Court held that "[b]ecause due process does not require a State to provide appellate process at all, a former fugitive's right to appeal cannot be said to be so central to an accurate determination of innocence or guilt as to fall within this exception . . . ." Id. at 120 (citations and internal quotations omitted).2 Considering these holdings, the

provision of appointed counsel for such a proceeding can hardly be said to be "implicit in the concept of ordered liberty." Accordingly, in our judgment,

Halbert cannot be construed as a "watershed" decision, neither of the Teague exceptions applies, and Halbert thus is not retroactive under federal retroactivity jurisprudence. B. RETROACTIVITY UNDER STATE LAW The conclusion that Halbert is not retroactive under federal law does not end our analysis, however. A state may accord broader effect to a new rule of

"[A] State may not `bolt the door to equal justice' to indigent defendants" once it has provided an avenue of appeal. Halbert, supra at 610, quoting Griffin v Illinois, 351 US 12, 24; 76 S Ct 585; 100 L Ed 891 (1956). This holding only emphasizes our position that Halbert is not a "watershed" decision like Gideon because Halbert is rooted in the Equal Protection and Due Process clauses of the Fourteenth Amendment, rather than in the Sixth Amendment right to counsel.

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criminal procedure than federal retroactivity jurisprudence accords. Danforth v Minnesota, ___ US ___; 128 S Ct 1029, 1045; 169 L Ed 2d 859 (2008).3 Accordingly, we turn to the question of whether Halbert should be deemed retroactive under state law. Michigan law has regularly declined to apply new rules of criminal procedure to cases in which a defendant's conviction has become final. See Sexton, supra (requirement that the police inform a suspect when retained counsel is available for consultation); People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982) (abrogation of common-law "year and a day" rule); People v Young, 410 Mich 363; 301 NW2d 803 (1981) (preconviction filing of habitual offender notice); People v Smith, 405 Mich 418, 433; 275 NW2d 466 (1979) (repeal of criminal sexual psychopath statute barring criminal action against those adjudicated criminal sexual psychopaths); People v Markham, 397 Mich 530; 245 NW2d 41 (1976) (double jeopardy "same transaction" test); People v Rich, 397 Mich 399; 245 NW2d 24 (1976) (erroneous "capacity standard" jury instruction); People v Butler, 387 Mich 1; 195 NW2d 268 (1972) (waiver of a defendant's

To conclude that Teague was intended to apply strictly to federal habeas review, and not to state court proceedings, Danforth argued that: (1) Teague was silent regarding a state's ability to give broader effect to federal constitutional decisions, Danforth, supra at 1039; (2) Teague was based on the federal habeas statute, 28 USC 2241 et seq., a "statutory authority that extends only to federal courts," Danforth, supra at 1040; and (3) Teague relied on considerations of comity and federalism, which "are [concerns] unique to federal habeas review of state convictions." Id. at 1041 (emphasis in original). Accordingly, the analysis in Teague binds only federal courts on habeas review, and a state court may use a different test to give broader effect to a new rule of criminal procedure established by the United States Supreme Court.

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constitutional rights in taking a guilty plea); Jensen v Menominee Circuit Judge, 382 Mich 535; 170 NW2d 836 (1969) (constitutional right to appeal in criminal cases); People v Woods, 382 Mich 128; 169 NW2d 473 (1969) (custodial interrogation procedures); People v Fordyce, 378 Mich 208; 144 NW2d 340 (1966) (custodial interrogation procedures). In Sexton, we considered the

following three factors to determine whether a new rule of criminal procedure should be applied retroactively: (1) the purpose of the new rules; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice. [Sexton, supra at 60-61, citing People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971).] Under the "purpose" prong, a law may be applied retroactively when it "`concerns the ascertainment of guilt or innocence;'" however, "`a new rule of procedure . . . which does not affect the integrity of the fact-finding process should be given prospective effect.'" Id. at 63, quoting Young, supra at 367. By pleading guilty, defendants are not contesting their guilt, but admitting it freely. Thus, the

appointment of counsel on appeal does not concern the ascertainment of guilt or innocence. See Goeke, supra at 120. Rather, an appeal from a guilty plea

concerns only the procedures of the plea process; the defendant has already admitted substantive guilt while represented by counsel. It is hard to imagine a more dispositive process by which guilt can be accurately determined, and in which the appellate process becomes less central to an accurate determination of guilt, than that in which a full admission to criminal conduct has come from the

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mouth of the defendant himself under oath,4 and in an environment in which the defendant has been accorded every protection against a coerced or mistaken confession. Consequently, the first Sexton prong counsels against retroactivity. The second Sexton prong, which concerns the "general reliance on the old rule," does not, in our judgment, strongly counsel either way in this case. When considering "reliance," a court examines whether individual persons or entities have been "adversely positioned . . . in reliance" on the old rule. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 221; 731 NW2d 41 (2007). The dissent implies that defendants who pleaded guilty between 1994 and 2005, as a class, were "penalized by the general reliance" on the old rule.5 Post at 10-11. We disagree. To be considered to have detrimentally relied on the old rule, a

defendant must have relied on the rule in not pursuing an appeal and have suffered harm as a result of that reliance. We recognize that ascertaining the precise number of defendants who meet this standard is impossible, but clearly all defendants who pleaded guilty between 1994 and 2005 do not meet this standard. Indeed, appeals of guilty pleas before the old rule indicate that it is likely that very few do.

Since March 1, 1995, this Court has required all defendants who plead guilty to be placed under oath before doing so. MCR 6.302(A). 1994 PA 374, which implemented Proposal B, became effective December 27, 1994.
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First, only a very small percentage of defendants who pleaded guilty before the old rule became effective actually appealed their pleas. Before the old rule was implemented in 1994, an estimated 89% to 94% of defendants who pleaded guilty did not appeal their pleas.6 During this period, indigent defendants were appointed appellate counsel if they chose to pursue an appeal. Yet, fewer than one in ten of all defendants who pleaded guilty actually decided to appeal their pleas. The large number of defendants who pleaded guilty but did not seek appeal can be explained by a variety of factors, most important of which are the lack of an appealable issue after the plea and the risk inherent in appealing a guilty plea.7 Therefore, it can be assumed that most defendants who pleaded guilty between 1994 and 2005 and did not appeal, rather than not appealing because of reliance on

The State Appellate Defender's Office estimated, on the basis of the cases it handled, that less than six percent of guilty pleas were appealed. House Legislative Analysis Section, Second Analysis, 1994 PA 374, 375 (January 5, 1995), p 2. The House Legislative Analysis Section's November 2, 1993, analysis stated that "[e]stimates put the proportion of people who appeal after pleading guilty at 11 percent or substantially less." House Legislative Analysis Section, First Analysis, House Bill 4070, 4071 (November 2, 1993) ("HB 4070-4071 Analysis"), p 3. Under MCR 6.312, if an appellate court vacates a defendant's guilty plea, "the case may proceed to trial on any charges that had been brought or that could have been brought against the defendant if the plea had not been entered," including charges more severe then the charge or charges to which the defendant pleaded guilty or charges that the prosecutor agreed to drop in exchange for the plea agreement. The risk of proceeding to trial on more serious or additional charges often persuades defendants not to pursue a plea appeal. Robertson, Felony Plea Appeals in Michigan

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