People of Michigan v. James Dean Byars

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, FOR PUBLICATION
April 27, 2023
Plaintiff-Appellee, 9:00 a.m.
v No. 357013
Alpena Circuit Court
JAMES DEAN BYARS, LC No. 12-004965-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and REDFORD and YATES, JJ.
REDFORD, J.
In this matter, defendant asserts MCR 6.428 as amended effective January 1, 2021, allowed
for the restoration of his appellate rights. Defendant appeals by delayed application for leave
granted1 the circuit court’s opinion and order denying his motion for restoration of his appellate
rights. Because we conclude under the facts and circumstances of this case, MCR 6.428 provided
for the restoration of his appellate rights and for the reasons stated in this opinion, we reverse.
I. BACKGROUND
On June 14, 2013, a jury convicted defendant of first-degree criminal sexual conduct
(person under 13 years of age), MCL 750.520b(1)(a), and on July 22, 2013, the trial court
sentenced defendant as a third-offense habitual offender, MCL 769.11, to 20 to 40 years’
imprisonment. On July 22, 2013, defendant filed a claim of appeal and request for appellate
counsel. On July 23, 2013, defendant filed an in propria persona motion for new trial. On July
29, 2013, the trial court entered on defendant’s behalf a claim of appeal and an order appointing
defendant appellate counsel.
On December 12, 2013, defendant’s prior appellate counsel filed a motion in this Court for
dismissal of defendant’s claim of appeal without prejudice, because the appeal was premature
1
People v Byars, unpublished order of the Court of Appeals entered September 29, 2021 (Docket
No. 357013).
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since defendant had filed a timely motion for new trial and “under MCR 7.204(A)(2)(d), an appeal
of right in a criminal case may be taken ‘within 42 days after the entry of an order denying a motion
for a new trial . . . if the motion was filed within the time provided in . . . MCR 6.431(A) . . . .’ ”
Defendant’s counsel explained that he might supplement or adopt defendant’s motion and notice
it for hearing in the near future. The motion stated that if the trial court denied the motion for a
new trial, defendant would request that the trial court reenter the claim of appeal. The motion
being unopposed, this Court dismissed defendant’s appeal.2
Defendant’s motion in the trial court for a new trial was not noticed for hearing. Instead,
on July 30, 2014, defendant’s prior appellate counsel submitted a FOIA request to obtain a forensic
interview of the complainant, and documents related to a similar acts witness. The Northfield
Township Police Department denied the request, defendant’s prior counsel appealed
unsuccessfully, and then filed suit on March 4, 2015. That suit settled later in 2015.
Defendant’s prior counsel filed an amended motion for new trial in the trial court on
February 18, 2016; over two years after counsel had requested this Court to dismiss defendant’s
appeal and over two and a half years after counsel had been appointed by the trial court. The
prosecution opposed the motion in part on the ground that defendant had abandoned the motion.
Defendant’s prior appellate counsel supplemented defendant’s brief by stating that he filed the
amended motion “after extensive and time consuming investigation that included (defendant’s
prior appellate counsel) filing” the FOIA complaint. Defendant’s counsel provided no further
explanation for the delay in filing and noticing the amended motion. On March 15, 2016, the trial
court denied the motion because defendant had abandoned it by not noticing the original motion
for hearing.
Defendant requested that the trial court enter another claim of appeal which the trial court
denied March 22, 2016. On April 4, 2016, defendant filed an application for leave to appeal the
denial of his motion for new trial because of his delayed filing, but this Court denied leave for lack
of merit in the grounds presented.3 Our Supreme Court also denied defendant’s application for
leave to appeal in an order entered April 27, 2017, but it stated:
[T]he application for leave to appeal is again considered, and it is DENIED, because
we are not persuaded that the questions presented should be reviewed by this Court.
This denial is without prejudice to the defendant’s right to file a motion for relief
from judgment pursuant to MCR 6.500 et seq. that may include the issue of whether
his appellate counsel provided ineffective assistance of counsel when appellate
counsel failed to properly notice the defendant’s pro se motion for a new trial and/or
to seek an adjournment. [People v Byars, 500 Mich 978; 893 NW2d 338 (2017).]
2
People v Byars, unpublished order of the Court of Appeals, entered December 26, 2013 (Docket
No. 317426).
3
People v Byars, unpublished order of the Court of Appeals, entered July 1, 2016 (Docket
No. 332326).
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During June 2017, defendant’s prior appellate counsel moved to withdraw as defendant’s
counsel on the ground that further representation of defendant would involve arguing that prior
appellate counsel provided ineffective assistance, which created a conflict of interest requiring
withdrawal and the substitution of counsel. Defendant’s counsel asserted in the motion that
defendant “lost his right to direct appeal through no fault of his own,” and defendant “has a strong
claim to reinstate his right to direct appeal because [defendant’s prior appellate counsel] failed to
perfect his appeal of right.” The circuit court granted defendant’s prior appellate counsel’s motion,
appointed defendant new appellate counsel, and entered a claim of appeal for defendant. This
Court, however, notified defendant’s new appellate counsel that he had been appointed “to
represent defendant with regard to bringing a motion for relief from judgment under subchapter
6.500 in the trial court” and administratively closed Docket No. 339276 resulting in no pending
appeal in this Court.
Thereafter, defendant moved in the circuit court for relief from judgment in part on the
ground that his counsel provided ineffective assistance by abandoning his motion for new trial.
The circuit court disagreed, ruling that defendant, and not defendant’s prior appellate counsel, bore
responsibility for noticing his motion for hearing, and even if counsel performed deficiently,
defendant failed to establish prejudice because the court found that his pro se motion for new trial
lacked merit, and even if properly noticed it would have been denied. Therefore, on January 11,
2018, the circuit court denied his motion for relief from judgment. On January 30, 2018, defendant
filed an application for leave to appeal which this Court denied because defendant failed to
demonstrate that the circuit court erred.4
Defendant, acting in propria persona, moved in the circuit court for restoration of his
appellate rights under MCR 6.428. The court denied defendant’s request on March 3, 2021,
stating:
Defendant’s reliance on MCR 6.428 is misplaced. There is no dispute that he was
appointed appellate counsel on two occasions. Additionally, his appellate counsel
filed a timely appeal by right. Defendant withdrew his claim of appeal voluntarily.
Although his subsequent motions and related appeals were unsuccessful, he has not
demonstrated any errors or other factors to warrant restoration of his appellate
rights.
Defendant moved for reconsideration and the court denied that motion. That prompted defendant
acting in propria persona to file the instant application for leave to appeal which this Court
granted.
II. STANDARD OF REVIEW
We review for an abuse of discretion a lower court’s ruling on a postconviction motion,
and review for clear error its findings of fact. People v McSwain, 259 Mich App 654, 681-682;
676 NW2d 236 (2003). A court abuses its discretion if its decision falls outside the range of
4
People v Byars, unpublished order of the Court of Appeals, entered July 18, 2018 (Docket
No. 342155).
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reasonable and principled outcomes. People v Blanton, 317 Mich App 107, 117; 894 NW2d 613(2016). “Clear error exists when the reviewing court is left with the definite and firm conviction
that a mistake has been made.” People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993)
(citations omitted). We review de novo a lower court’s interpretation of a court rule. Blanton, 317
Mich App at 117.
III. ANALYSIS
Defendant argues that the circuit court erred by denying his motion under MCR 6.428 to
restore his appellate rights because, through no fault of his own, he lost his right to appellate
review. Defendant explains that his appellate counsel withdrew his claim of appeal with the intent
to supplement or adopt defendant’s pro se motion for new trial, but then failed to timely notice,
supplement, or adopt the motion for new trial, resulting in the loss of his right to appellate review.
We agree.
To determine whether defendant is entitled to the restoration of his appellate rights under
MCR 6.428, we first must determine if the current version of MCR 6.428, which took effect on
January 1, 2021, applies retroactively to defendant’s 2013 judgment of sentence. If it applies
retroactively, we must determine if the rule still requires defendant to prove ineffective assistance
of appellate counsel to establish entitlement to have his appellate rights restored.
The previous version of MCR 6.428, titled “Reissuance of Judgment,” stated:
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.
Our Supreme Court amended MCR 6.428, effective January 1, 2021, and retitled the rule
“Restoration of Appellate Rights,” and it now provides:
If the defendant, whether convicted by plea or at trial, 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, the trial court shall issue an order restarting the time in which to file an
appeal or request counsel.
In Reitmeyer v Schultz Equip & Parts Co, Inc, 237 Mich App 332, 337; 602 NW2d 596(1999), this Court held that determining whether a newly amended or adopted court rule applies
in a given case is governed by MCR 1.102, “because MCR 1.102 provides its own specific rules
for the application of new and amended court rules that should take precedence over the
generalized rules of retrospectivity and prospectivity.” MCR 1.102 provides:
These rules take effect on March 1, 1985. They govern all proceedings in
actions brought on or after that date, and all further proceedings in actions then
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pending. A court may permit a pending action to proceed under the former rules if
it finds that the application of these rules to that action would not be feasible or
would work injustice.
In Reitmeyer, this Court noted that “[a]lthough MCR 1.102 was originally a transitional provision
for the introduction of the court rules, [t]he same principle has been applied to subsequently
adopted or amended rules.” Reitmeyer, 237 Mich App at 337 (quotation marks and citation
omitted; second alteration in original). Therefore, “the norm is to apply the newly adopted court
rules to pending actions unless there is reason to continue applying the old rules.” Id. (quotation
marks and citation omitted). “[A]n injustice is not present merely because a different result would
be reached under the new rules.” Id. (quotation marks and citation omitted). “Rather, a new court
rule would ‘work injustice’ where a party acts, or fails to act, in reliance on the prior rules and the
party’s action or inaction has consequences under the new rules that were not present under the
old rules.” Id. at 337 (quotation marks and citation omitted). Thus, the current version of
MCR 6.428 governs the restoration of a defendant’s appellate rights unless defendant acted or
failed to act in reliance on the previous version of MCR 6.428 and defendant’s action or inaction
has consequences under the new rule that were not present under the old rule.
In this case, defendant’s motion for appointment of appellate counsel relied on the current
version of MCR 6.428 to argue for the restoration of his appellate rights. The trial court’s opinion
and order denying the restoration of defendant’s appellate rights cited the current version of MCR
6.428. Further, defendant relies on the current version of MCR 6.428 in his brief on appeal to
argue that he is entitled to the restoration of his appellate rights due to errors by his former appellate
counsel between 2013 and 2016. Plaintiff makes no argument to the contrary. Even though the
alleged errors of defendant’s previous counsel occurred before the current version of MCR 6.428
took effect, defendant relies upon the current version of MCR 6.428 for the restoration of his
appellate rights. Defendant did not act or fail to act in reliance on the previous version of MCR
6.428 and the application of the current version of MCR 6.428 is feasible and will not work an
injustice on the parties. MCR 6.428, therefore, applies retroactively in this case.
“Court rules are to be interpreted to give effect to the intent of the Supreme Court, the
drafter of the rules.” Vyletel-Rivard v Rivard, 286 Mich App 13, 21; 777 NW2d 722 (2009). “The
same legal principles that govern the construction and application of statutes apply to court rules.”
People v Williams, 483 Mich 226, 232; 769 NW2d 605 (2009). “When construing a court rule,
we begin with its plain language; when that language is unambiguous, we must enforce the
meaning expressed, without further judicial construction or interpretation.” Id. “[T]he intent of
the rule must be determined from an examination of the court rule itself and its place within the
structure of the Michigan Court Rules as a whole.” Decker v Trux R Us, Inc, 307 Mich App 472,
479; 861 NW2d 59 (2014) (quotation marks and citation omitted). Changes to a court rule “must
be construed in light of preceding” court rules “and the historical legal development of” the court
rules. See Advanta National Bank v McClarty, 257 Mich App 113, 120; 667 NW2d 880 (2003).
“Words should be given their common, generally accepted meaning, if consistent with the
legislative aim in enacting the statute.” People v Spann, 250 Mich App 527, 530; 655 NW2d 251(2002). However, “just 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). Only where the language
of the court rule is ambiguous may a court go beyond the words of the rule to ascertain our Supreme
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Court’s intent. See Papas v Mich Gaming Control Bd, 257 Mich App 647, 658; 669 NW2d 326(2003). “An ambiguity of [court rule] language does not exist merely because a reviewing court
questions whether the [Supreme Court] intended the consequences of the language under review.”
Id. “An ambiguity can be found only where the language of a [rule], as used in its particular
context, has more than one common and accepted meaning.” Id. “Thus, where common words
used in their ordinary fashion lead to a single reasonable interpretation, the [rule] is not
ambiguous.” Id.“If judicial construction is required, this Court must adopt a construction that best
accomplishes the purpose of the court rule.” Rivard, 286 Mich App at 22. “Every word of the
[rule] is presumed to have some meaning, so courts should avoid any construction that would
render any part of the [rule] surplusage or nugatory.” Linden v Citizens Ins Co of America, 308
Mich App 89, 93; 862 NW2d 438 (2014). “While the Court may consider a variety of factors, it
should always use common sense.” Rivard, 286 Mich App at 22.
Under the current version of MCR 6.428, defendant may obtain the restoration of his
appellate rights and restart of the time in which to file an appeal if he establishes that he “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 . . . .” This
means that, if defendant’s counsel, the lower court, or other factors outside defendant’s control
caused the denial either of his right to appellate review or the appointment of appellate counsel, he
would be entitled to relief. Under the plain, unambiguous language of MCR 6.428, defendant must
establish that (1) errors by the defendant’s previous counsel denied him appellate review or the
appointment of appellate counsel, or (2) errors by the lower court denied him appellate review or
the appointment of appellate counsel, or (3) some other factors that were outside defendant’s
control caused him the denial of appellate review or the appointment of appellate counsel.
Accordingly, defendant has three ways that he can establish entitlement to the restoration of his
appellate rights.
Respecting the first way to establish the right to restoration of appellate rights, we note that
under current MCR 6.428, a defendant no longer needs to demonstrate ineffective assistance of
counsel. Our Supreme Court’s amendment not only eliminated the phrase “or otherwise failed to
provide effective assistance” from MCR 6.428, but also eliminated the phrase, “and, but for
counsel’s deficient performance, the defendant would have perfected a timely appeal of right.”
Our Supreme Court held in People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012), that
a defendant proves ineffective assistance of counsel by showing “that (1) counsel’s performance
fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” When our Supreme
Court eliminated from MCR 6.428 the phrases “or otherwise failed to provide effective assistance”
“and, but for counsel’s deficient performance, the defendant would have perfected a timely appeal
of right,” it removed the requirement that a defendant must prove that the defendant’s prior counsel
rendered ineffective assistance before the defendant could to be entitled to restoration of appellate
rights. Our Supreme Court’s changes indicate that MCR 6.428 requires a defendant to establish a
less burdensome requirement, that counsel committed an error, i.e., committed an ignorant or
imprudent deviation from a code of behavior or engaged in an act that through mistake, ignorance,
deficiency, or accident, departed from or failed to achieve what should have been done resulting
in the denial of the defendant’s right to appellate review.
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Under MCR 6.428, even if a defendant has timely filed a claim of appeal or been appointed
appellate counsel, the defendant could still be denied the right to appellate review if appellate
counsel or the court commits an error, or other factors outside of the defendant’s control occur that
result in denial of appellate review. The mere appointment of appellate counsel or filing of a claim
of appeal, therefore, does not establish that a defendant actually has been afforded the right to
appellate review if the defendant can demonstrate an error committed by prior counsel or the court,
or other factors beyond the defendant’s control, that resulted in the denial of appellate review. The
exercise of the right to appellate review is more than the mere filing of a claim of appeal or the
appointment of counsel. However, if after a defendant has filed a claim of appeal the defendant
voluntary withdraws or dismisses the claim of appeal, to gain relief under MCR 6.428, such
defendant must establish the commission of an error by counsel or the court, or other factors
outside the defendant’s control, that caused the ultimate denial of appellate review.
In this case, defendant’s previous counsel moved to dismiss his appeal in this Court and
then took no actions of record on defendant’s previously filed motion for a new trial for over two
years. These actions and inactions by prior counsel resulted in the trial court ruling that defendant
had abandoned his motion for a new trial. Counsel’s actions were clearly errors.
We note, ordinarily, where a defendant voluntarily withdraws or dismisses a claim of
appeal, such conduct constitutes a waiver. As explained in People v Carter, 462 Mich 206, 215;
612 NW2d 144 (2000) (quotation marks and citations omitted), waiver is “the intentional
relinquishment or abandonment of a known right.” “One who waives his rights under a rule may
not then seek appellate review of a claimed deprivation of those rights, for his waiver has
extinguished any error.” Id. (quotation marks and citation omitted). “Whether a particular right
is waivable; whether the defendant must participate personally in the waiver; whether certain
procedures are required for waiver; and whether the defendant’s choice must be particularly
informed or voluntary, all depend on the right at stake.” Id. at 217 (quotation marks and citation
omitted). The right at stake in this case is the right to appeal a criminal conviction which the
Michigan Constitution affords every criminal defendant. Const 1963, art 1, § 20. The right to
appellate review may be waived, but such a waiver must be informed and voluntary.
Defendant argues that he was denied the right to appellate review because of errors by his
prior appellate counsel entitling him to relief under MCR 6.428. Defendant contends that his court-
appointed appellate counsel, after prior counsel successfully moved to dismiss defendant’s claim
of appeal without prejudice with the intent of adopting or supplementing defendant’s previously
filed pro se motion for a new trial, failed to timely pursue defendant’s motion for new trial.
Analysis of the record indicates that defendant’s appointed counsel did not adopt, amend, or
otherwise pursue defendant’s motion for a new trial and waited over two years to file the amended
motion. The record is unclear whether counsel considered a FOIA request necessary to proceed.
The absence of any other action, however, suggests that defendant’s prior counsel erroneously
believed that a FOIA request and FOIA litigation sufficed to preserve defendant’s appellate rights.
The record establishes that defendant’s prior appellate counsel did not inform the trial court
of the FOIA request or its rationale or necessity, its denial, the filing of a FOIA complaint, or that
dispute’s resolution, until he filed the amended motion for a new trial later in 2016. Even in that
motion, its supporting brief, and its supplemental brief, defendant’s prior appellate counsel did not
disclose to the trial court any rationale for not noticing for hearing defendant’s pending 2013
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motion for new trial, nor did he offer reasons for not pursuing the filing of an amended motion
sooner. Defendant’s prior appellate counsel engaged in an act that constituted an imprudent
deviation from motion practice and an act based on mistake, ignorance, deficiency, or accident
that departed from or failed to achieve what should have been done, the filing of a timely amended
motion for new trial that would have preserved defendant’s right to appellate review under MCR
7.204(A)(2)(d). Defendant’s prior appellate counsel, therefore, committed an error within the
purview of MCR 6.428. Accordingly, the circuit court erred by concluding that defendant’s
reliance on MCR 6.428 was misplaced.
We also note that nothing in the record indicates that defendant made an informed and
voluntary decision to abandon his motion for a new trial or agreed to delay bringing such motion
before the trial court for adjudication for over two years from the date of his initial filing. No
affidavit of defendant’s prior appellate counsel or any attorney affiliated with defendant’s prior
appellate counsel discloses any justifiable rationale for the lengthy delay or lack of communication
with the trial court, nor is there any indication that prior counsel consulted with defendant
regarding delaying adjudication of the motion for new trial. Because of defendant’s prior appellate
counsel’s errors, defendant was denied the right to appellate review. Accordingly, defendant was
and is entitled to have his appellate rights restored. Defendant’s in propria persona motion under
MCR 6.428 brought prior counsel’s errors to the trial court’s attention, appropriately invoked MCR
6.428, and requested restoration of defendant’s appellate rights. The trial court, nevertheless,
denied defendant’s motion. In so doing, the trial court erred.
Plaintiff argues that because defendant filed his motion for new trial pro se, defendant bore
responsibility for noticing his hearing, and any delay is defendant’s fault, not his prior appellate
counsel’s. Plaintiff argues further that the failure to timely pursue the motion for new trial was
not “ ‘outside the defendant’s control.’ ” We disagree.
MCR 6.425(G)(2) specifies the scope of an appointed appellate lawyer’s representation:
The responsibilities of the appellate lawyer appointed to represent the
defendant include representing the defendant
(a) in available postconviction proceedings in the trial court the lawyer
deems appropriate,
(b) in postconviction proceedings in the Court of Appeals,
(c) in available proceedings in the trial court the lawyer deems appropriate
under MCR 7.208(B) or 7.211(C)(1), and
(d) as appellee in relation to any postconviction appeal taken by the
prosecutor. [Emphasis added.]
Under MCR 6.425(G)(2)(a), defendant’s prior appellate counsel had the responsibility to
represent defendant in postconviction proceedings. The record reflects that defendant’s prior
appellate counsel understood his responsibility and indicated to this Court when he moved to
dismiss defendant’s claim of appeal that he intended to proceed with the motion for new trial.
Defendant’s prior appellate counsel failed to do so and his error denied defendant his right to
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appellate review. The trial court erred by concluding that defendant bore the burden to seek
adjudication of his motion for new trial and by not doing so abandoned the motion. That
responsibility, however, belonged to prior appellate counsel whose failure to properly and timely
pursue defendant’s motion for new trial constituted an error that denied defendant his right to
appellate review. Accordingly, we hold that the trial court abused its discretion when it denied
defendant’s motion under MCR 6.428 and refused to restore his appellate rights.5
Therefore, we reverse the trial court’s order and remand for entry of an order restoring
defendant’s appellate rights and restarting the time in which he may file an appeal. We do not
retain jurisdiction.
/s/ James Robert Redford
/s/ Douglas B. Shapiro
/s/ Christopher P. Yates
5
We note, this conclusion could be different if prior appellate counsel was not appointed six days
after defendant’s pro se motion was filed and if prior appellate counsel had not affirmatively stated
he was pursuing the motion for new trial and would renotice it for a hearing; however, in this case,
prior appellate counsel did these things and we disagree with plaintiff’s argument that defendant’s
pro se filing one day after sentence was imposed and before appellate counsel was appointed by
the trial court results in a complete bar to the applicability of MCR 6.428.
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