People of Michigan v. Rodolfo Michael Sanchez

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 6, 2019
Plaintiff-Appellee,
v No. 343834
Saginaw Circuit Court
RODOLFO MICHAEL SANCHEZ, LC No. 16-042629-FH
Defendant-Appellant.
Before: METER, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted the trial court’s denial of his motion to
reissue the judgment of sentence. We affirm.
I. BACKGROUND
In December 2016, defendant pleaded no contest to one count of operating while
intoxicated causing death, MCL 257.625(4), and one count of operating while intoxicated
causing serious injury, MCL 257.625(5).1 The trial court sentenced defendant as a third-offense
habitual offender, MCL 769.11, to prison terms of 150 to 300 months for operating while
intoxicated causing death and 57 to 120 months for operating while intoxicated causing serious
injury. At the sentencing hearing, defendant confirmed that he signed the Notice of Right to
Appellate Review, which advised him that an appeal from a plea of guilty or no contest was by
leave only.
Defendant submitted a timely request for the appointment of appellate counsel, and the
trial court appointed David Herskovic as appellate counsel in March 2017. In October 2017,
Herskovic moved to withdraw as counsel and to have substitute counsel appointed. Herskovic
cited a material breakdown in the attorney-client relationship, which defendant confirmed,
1
A second charge of operating while intoxicated causing death was dismissed.
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because Herskovic did not believe that defendant had a meritorious argument to present on
appeal. The trial court granted the motion and discharged Herskovic as appellate counsel.
The trial court appointed Jacqueline Langwith as substitute appellate counsel in
November 2017. Defendant filed a motion to reissue the judgment of sentence under MCR
6.428 to permit him to perfect an appeal or move to withdraw the plea, alleging that Herskovic’s
ineffective assistance deprived him of the opportunity to do either one. Defendant acknowledged
that MCR 6.428 applied only to an appeal of right—whereas he was only permitted to appeal by
leave as a result of the plea—but argued that MCR 6.428 should be extended to an appeal by
leave. The trial court denied the motion in January 2018 because MCR 6.428 does not apply to
plea-based convictions.
In March 2018, Langwith filed a motion to withdraw as appellate counsel and have
substitute appellate counsel appointed because she failed to file an application for leave to appeal
within 42 days of the appointment of substitute counsel. The trial court granted the motion and
discharged Langwith as appellate counsel. The trial court subsequently appointed Paul White as
appellate counsel on April 2, 2018. Defendant filed an application for leave to appeal to
challenge the trial court’s denial of the motion to reissue the judgment of sentence and its ruling
that MCR 6.428 does not apply to an appeal by leave following a plea-based conviction. We
granted leave to appeal. People v Sanchez, unpublished order of the Court of Appeals, entered
July 6, 2018 (Docket No. 343834).
II. DISCUSSION
Defendant argues that the trial court erred when it declined to reissue the judgment of
sentence and extend MCR 6.428 to a plea-based conviction. This Court reviews a trial court’s
ruling on a postconviction motion for an abuse of discretion and its factual findings for clear
error. People v McSwain, 259 Mich. App. 654, 681; 676 NW2d 236 (2003). “Interpretation of
court rules presents a question of law that we review de novo.” People v Blanton, 317 Mich. App.
107, 117; 894 NW2d 613 (2016). This Court also reviews a constitutional claim de novo.
People v Fonville, 291 Mich. App. 363, 376; 804 NW2d 878 (2011).
As with statutory interpretation, this Court applies the plain and unambiguous language
of a court rule. People v Hawkins, 468 Mich. 488, 500; 668 NW2d 602 (2003). “[J]ust as we
cannot read into an unambiguous statute a provision not written by the Legislature, we likewise
cannot read into a court rule a provision not written by the Supreme Court.” People v Orr, 275
Mich. App. 587, 595; 739 NW2d 385 (2007).
MCR 6.428 states in full:
If the defendant did not appeal within the time allowed by MCR
7.204(A)(2) and demonstrates that the attorney or attorneys retained or appointed
to represent the defendant on direct appeal from the judgment either disregarded
the defendant’s instruction to perfect a timely appeal of right, or otherwise failed
to provide effective assistance, and, but for counsel’s deficient performance, the
defendant would have perfected a timely appeal of right, the trial court shall issue
an order restarting the time in which to file an appeal of right.
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The parties do not dispute that this rule applies only to an appeal of right or that an appeal of
right was not available to defendant as a result of the no-contest plea, as stated in MCR
7.203(A)(1)(b). Therefore, there is no dispute that this rule does not apply to this case, and the
trial court did not abuse its discretion by denying defendant’s motion to reissue the judgment of
sentence.
Defendant cites a proposed amendment to the rule, Proposed MCR 6.428, 501 Mich.
1220, 1221 (2017), which would expand its application to appeals by leave from plea-based
convictions. This proposed rule has not taken effect. Therefore, it does not control this case.
Nevertheless, defendant asserts that applying Proposed MCR 6.428 is necessary to
protect his constitutional rights “consistent with the interests of justice.” Defendant has not,
however, identified which constitutional rights this case implicates, how the current rule violates
those constitutional rights, or what rationale supports the expansion of this rule. Moreover, as
applicable here, MCR 6.428 is premised on the ineffective assistance of counsel, but defendant
has not identified what legal issues his counsel should have raised had he perfected defendant’s
appeal or moved to withdraw the plea.2 “An appellant may not merely announce his position and
leave it to this Court to discover and rationalize the basis for his claims, nor may he give only
cursory treatment with little or no citation of supporting authority.” People v Payne, 285 Mich
App 181, 195; 774 NW2d 714 (2009) (internal citation and quotation marks omitted). There
may be good reason to extend MCR 6.428 to plea-based convictions; indeed, there may be good
reason to extend MCR 6.428 to defendant’s convictions. By not substantively addressing his
claim of error, however, defendant has abandoned this issue. See People v Miller, ___ Mich App
___, ___; ___ NW2d ___ (2019) (Docket No. 338453), slip op at 10 (“An appellant’s failure to
properly address the merits of his assertion of error constitutes abandonment of the issue.”)
(internal citation and quotation marks omitted).
Affirmed.
/s/ Patrick M. Meter
/s/ Kathleen Jansen
/s/ Michael J. Kelly
2
To the extent that defendant maintains that a motion to withdraw the plea was the most
effective form of relief and suggests that prior counsel was ineffective for failing to file such a
motion, defendant has not shown why he could not have filed a motion to withdraw the plea after
the appointment of second substitute counsel, MCR 6.310(C)(2), or after we granted leave to
appeal, MCR 7.208(B)(1). Similarly, defendant has not explained on what grounds he should
have been allowed to withdraw his plea.
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