People v. Bulger

614 N.W.2d 103, 462 Mich. 495

• Court: Michigan Supreme Court
• Decided: July 18, 2000
• Docket: 112694, Calendar No. 9
• Status: Published

Opinions

Corrigan, J.

We granted leave in this case to determine whether an indigent defendant is entitled to the appointment of appellate counsel at public expense when applying for leave to appeal a plea-based conviction. We hold that neither the state nor the federal constitution requires the appointment of counsel under these circumstances. Under our federalist scheme of government, Michigan remains free to decide the conditions under which appellate counsel will be provided where our state constitution commands that the mechanism of appellate review is discretionary. Const 1963, art 1, § 20.

Accordingly, we vacate the order of the Court of Appeals that remanded this case to the trial court for reconsideration in light of People v Najar, 229 Mich App 393; 581. NW2d 302 (1998), reinstate the trial court’s order denying defendant’s motion for appointment of appellate counsel, and remand this case to the trial court so that defendant may pursue his application for leave to appeal his convictions.

I. UNDERLYING FACTS AND PROCEDURAL HISTORY

Defendant pleaded guilty in Saginaw Circuit Court on July 10, 1995, to possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and possession of marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d). The trial court sentenced him to concurrent terms of imprisonment of six to twenty years for the cocaine conviction and one hundred forty-five days for the marijuana conviction. Defendant subsequently requested that the trial court appoint counsel to prepare his application for leave to appeal to the Court of Appeals. The trial court denied defendant’s request. Defendant, along with several similarly situated defendants, then sought superintending control in this Court. This Court dismissed the complaint, but granted defendant and the other petitioners twenty-one days in which to move for appointed appellate counsel in the trial court. This Court further ordered the trial court to appoint counsel to argue the motion.

Defendant thereafter moved for the appointment of appellate counsel. The trial court appointed counsel to represent defendant for purposes of the motion and any resulting appeal. Following argument, the trial court denied defendant’s motion in an opinion and order. The court noted that, in November 1994, the people of Michigan ratified Proposal B, which amended Const 1963, art 1, § 20 to state that “as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court,”¹ but left the provision regarding the appointment of counsel unchanged. The trial court further observed that, following the approval of Proposal B, this Court amended MCR 6.425(F)(1)(c) to provide that “[i]n a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointment of an attorney] if it is filed within 42 days after sentencing.”

In denying counsel, the trial court reasoned that appointing counsel for every indigent defendant who seeks leave to appeal a plea-based conviction would defeat the purpose of Proposal B, which was to reduce costs and burdens on the criminal justice system arising from guilty plea appeals. It also observed that the need for counsel is less compelling in applications from plea-based convictions because the simplicity of the proceedings makes the process of identifying errors easier. The court further concluded that appointment of counsel was not constitutionally required. The court then reviewed the plea and sentencing proceedings in this case and, noting the lack of apparent error, denied defendant’s request for counsel.

Defendant applied for leave to appeal the denial of his motion for appointed counsel. In lieu of granting leave, the Court of Appeals remanded the case to the trial court for reconsideration in light of Najar, supra. The Court stated:

Najar neither requires the appointment of appellate counsel under MCR 6.425(F)(1)(c) in every case, nor forecloses the ability of a trial court to exercise its discretion to appoint counsel under MCR 6.425(F)(1)(c) in any case in which it concludes that the defendant is in need of assistance to pursue an application for leave to appeal. [Unpublished order, entered July 21, 1998 (Docket No. 209031).]

In Najar, the Court of Appeals addressed the question presented in the instant case. The Court reasoned that while Const 1963, art 1, § 20 entitles a defendant to “reasonable assistance in perfecting and prosecuting an appeal[,] . . . [a]n application for leave to bring an appeal is plainly and simply not an appeal.” Najar, supra at 398. The Court further concluded that neither the state nor the federal constitution guarantees a right to appointed counsel to pursue an application for leave to appeal. Finally, the Court considered the language of MCR 6.425(F)(1)(c), and concluded that the trial court has discretion to appoint counsel, but should appoint counsel when a defendant

raises any issue other than one relating to (1) the facial regularity of the plea-taking procedure, (2) the trial court’s adherence to a sentencing agreement, (3) a plain correction of clerical error in court documents, such as a misspelling or a mathematical miscalculation, or (4) other instances absolutely devoid of merit .... [Najar, supra at 403-404.]

Following the order of the Court of Appeals remanding this case to the trial court for reconsideration in light of Najar, defendant sought leave to appeal to this Court, which we granted. 459 Mich 873 (1998).

II. HISTORY OF RELEVANT STATE AUTHORITIES

Before the ratification of the 1963 Michigan Constitution, Const 1908, art 2, § 19 provided that an accused was entitled “in courts of record, when the trial court shall so order, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” Criminal defendants, however, were not entitled to an appeal as of right. Const 1963, art 1, § 20, provided before the adoption of Proposal B in 1994 that a defendant had “an appeal as a matter of right; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” (Emphasis added.)²

Art 1, § 20, in its earlier form, thus provided defendants an appeal of right from all criminal convictions. Accordingly, this Court held in People v Smith, 402 Mich 72; 259 NW2d 558 (1977), that defendants could appeal by right from plea-based convictions. Moreover, the Court of Appeals held that a defendant’s right to appeal plea-based convictions included a corollary right to appointment of appellate counsel. People v Gazaway, 35 Mich App 39, 42; 192 NW2d 122 (1971).

Before the ratification of Proposal B in 1994, Michigan was one of only a handful of states that provided an unconditional right of appeal for those who pleaded guilty.³ In 1994, the Legislature submitted Proposal B to the electorate to decide whether to make appeals from plea-based convictions discretionary. “Eliminating appeals as a matter of right from plea-based convictions was suggested as a way to help control the case load [sic] of the Michigan Court of Appeals.” Note, Limiting Michigan’s guilty and nolo contendere plea appeals, 73 U Det Mercy L R 431 (1996). By 1992, the Court of Appeals had a backlog of more than 4,000 cases awaiting decision, and “[p]lea-based appeals constitute^] approximately thirty percent of all appeals facing the Michigan Court of Appeals.” Id., p 438. Eliminating appeals of right from plea-based convictions was one method proposed to reduce a crushing burden on our appellate courts.

The voters approved Proposal B by a margin of sixty-four percent to thirty-six percent. Id., p 431. As amended, Const 1963, art 1, § 20 now states that an accused is entitled “to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court . . . .” (Emphasis added.) Proposal B did not alter the provision of art 1, § 20 that grants defendants “as provided by law, when the trial court so orders, . . . such reasonable assistance as may be necessary to perfect and prosecute an appeal.” The Legislature subsequently enacted MCL 770.3(l)(e); MSA 28.1100(l)(e), providing for appeals from plea-based convictions by application for leave to appeal.

On December 30, 1994, this Court acted “to preserve the issue of appointment of counsel and payment therefor pending legislative clarification” because of “the absence of legislative action clarifying the Legislature’s position regarding the right to appointment of counsel in guilty plea cases in light of the November 1994 amendment of Const 1963, art 1, § 20 . . . .” 447 Mich cl. We adopted, on an interim basis, MCR 6.425(F)(1)(c), which provides that “[i]n a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointed counsel] if it is filed within 42 days after sentencing.” 447 Mich cliii.

This Court extended the expiration date of the amended court rule on several occasions “in anticipation of legislation regarding the appointment of appellate counsel in guilty plea cases.” 455 Mich lxxx (1997). Concluding after several years of interim rules that the Legislature was not moving to address the problem, this Court extended the rule indefinitely. Id. In joining this Court’s order, Justice Boyle explained:

Absent legislative implementation of the constitutional amendment and consistent with our reluctance to prejudge legal issues through exercise of the rule-making power, we have entered four interim orders authorizing appointment of counsel in order to protect an indigent defendant’s ability to have the assistance of counsel in pursuing appellate remedies.

We have therefore repeatedly sought clarification of the Legislature’s understanding of the amendment to avoid imposing costs on local funding units through court rules, expressing concern that the Legislature’s failure to act reflects Headlee considerations.

Every indication is that we have reached stalemate. Rather than deprive defendants of the assistance of counsel that the voters might not intend, I agree that the Court should extend the rules indefinitely. [Id., pp Ixxx-lxxxi.]

While this case has been pending in this Court, statutory amendments were enacted requiring the appointment of appellate counsel in guilty plea cases in certain defined circumstances, permitting appointment in another, and otherwise providing that appellate counsel shall not be appointed. 1999 PA 200, MCL 770.3a; MSA 28.1100a. This act took effect on April 1, 2000. Because this new statute does not apply to defendant, the question of its constitutionality is not before us.⁴

HI. RIGHT TO COUNSEL UNDER CONST 1963, ART 1, § 20

We first address defendant’s contention that Const 1963, art 1, § 20 entitles him to appointed counsel. As amended, art 1, § 20 provides, in part:

In every criminal prosecution, the accused shall have the right ... to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal. [Emphasis added.]

We emphasize that, after the ratification of Proposal B, indigent defendants who plead guilty or nolo contendere are no longer entitled to appeal their convictions as a matter of right. Rather, they must apply for leave to appeal. Defendant contends that, when applying for leave to appeal, he is entitled to the appointment of counsel as “reasonable assistance” that is “necessary to perfect and prosecute an appeal.” A defendant, however, is entitled to “reasonable assistance” only when it is “provided by law” and “the trial court so orders.” As discussed below, we conclude that defendant has no right to appointed counsel under our state constitution because the appointment of appellate counsel for an indigent defendant applying for leave to appeal from a plea-based conviction was not provided by law at any relevant time in this case.

In construing our constitution, this Court’s object is to give effect to the intent of the people adopting it. Charles Reinhart Co v Winiemko, 444 Mich 579, 606; 513 NW2d 773 (1994). ‘ Hence, the primary source for ascertaining its meaning is to examine its plain meaning as understood by its ratifiers at the time of its adoption.” Id. Since the 1972 amendment, art 1, § 20 has provided that a defendant is only entitled, as provided by law, and when the trial court so orders, to such reasonable assistance as is necessary to perfect and prosecute an appeal. Before the passage of Proposal B, however, no reason existed for this Court to construe the “as provided by law” language. Since guilty plea appeals were as of right, and the United States Constitution requires that the state provide counsel in a first appeal of right, Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963), this Court was never called upon to decide whether the appointment of appellate counsel in guilty plea appeals was “provided by law.” Because the ratification of Proposal B made guilty plea appeals discretionary, we must now consider that question.

The drafters of the 1963 Constitution used the phrase “provided by law” in several provisions. See, e.g., Const 1963, art 6, §§ 10, 15, 28. This Court has consistently construed the “provided by law” language as vesting authority to act in the Legislature. For example, Const 1963, art 6, § 15 provides that the jurisdiction, powers, and duties of the probate courts “shall be provided by law.” In Buback v Governor, 380 Mich 209, 226; 156 NW2d 549 (1968), this Court held that art 6, § 15 grants the Legislature the power to define the probate courts’ jurisdiction and noted as follows regarding the meaning of the phrase “provided by law” in our constitution:

The committee on style and drafting of the constitutional convention of 1961 made a distinction in the use of the words “prescribed by law” and the words “provided by law.” Where “provided by law” is used, it is intended that the legislature shall do the entire job of implementation. Where only the details were left to the legislature and not the overall planning, the committee used the words “prescribed by law.” See 2 Official Record, Constitutional Convention of 1961, pp 2673, 2674. [380 Mich 226.]

See also In re Kasuba Estate, 401 Mich 560, 566; 258 NW2d 731 (1977) (“[t]he Constitution provides for statutory definition of the jurisdiction of probate courts and our power to make rules of practice and procedure cannot be used to expand that jurisdiction without legislative consent”).

The drafters also used the phrase “provided by law” in art 6, § 10: “The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.” The plain language of this section clearly reveals that the phrase “provided by law” does not include this Court’s rulemaking powers. Accordingly, this Court stated in People v Cooke, 419 Mich 420, 430; 355 NW2d 88 (1984), that “[t]he Legislature, not this Court, has the power under the constitution to prescribe the jurisdiction of the Court of Appeals.”

Further, Const 1963, art 5, § 29, provides, in part, that the Civil Rights Commission “shall have other powers provided by law to carry out its purposes.” In Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405, 419; 157 NW2d 213 (1968), Justice Adams, writing for a plurality of the Court, construed art 5, § 29 to afford the Legislature the task of granting such “other powers” to the Civil Rights Commission. Thus, this Court has consistently held that use of the phrase “provided by law” in our constitution contemplates legislative action. Where action by this Court pursuant to its rulemaking powers is contemplated, the constitution explicitly says so. See, e.g., Const 1963, art 6, §§ 10, 30.

The constitutional provision presently under consideration, art 1, § 20, provides that an accused has the right “as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” (Emphasis added.) Given the use of the phrase “as provided by law” in this section, our state constitution entitles defendant to the appointment of counsel only to the extent that such assistance is legislatively required. When defendant requested appointment of appellate counsel at state expense, the Legislature had not acted to provide appointed counsel for indigent defendants seeking leave to appeal from plea-based convictions. Since the Legislature had not acted, the appointment of counsel for defendant was not “provided by law.” Accordingly, Const 1963, art 1, § 20, does not afford defendant the right to appointed counsel.

Defendant does not contend in this Court that 1999 PA 200 governs his case as his request for counsel occurred before the effective date of the act. Nor does defendant argue that, if the statute applied, he would satisfy any of the conditions for appointing counsel to pursue the application.

Defendant’s reliance on MCR 6.425(F)(1)(c) is likewise misplaced. When defendant requested counsel, the court rule provided:

In a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointed counsel] if it is filed within 42 days after sentencing.

Under Const 1963, art 1, § 20, however, this Court lacked the authority to adopt MCR 6.425(F)(1)(c). The phrase “provided by law” permits action by the Legislature only. Accordingly, this Court could not use its rulemaking powers to provide for appointed appellate counsel in the absence of legislative action.⁵ The Michigan Constitution does not afford indigent defendants seeking leave to appeal from plea-based convictions the right to appointed counsel absent legislative action.

IV. RIGHT TO COUNSEL UNDER THE FEDERAL CONSTITUTION

We next address defendant’s argument that the federal constitution guarantees him the right to appointed appellate counsel when seeking leave to appeal his guilty plea conviction. Of course, the federal constitution does not require the fifty states to provide any appeal whatsoever to criminal defendants. Ross v Moffitt, 417 US 600, 606; 94 S Ct 2437; 41 L Ed 2d 341 (1974); McKane v Durston, 153 US 684; 14 S Ct 913; 38 L Ed 867 (1894). As discussed, after the enactment of Proposal B, Michigan no longer affords an appeal of right to defendants who plead guilty or nolo contendere. Art 1, § 20. A defendant who pleads guilty or nolo contendere may only appeal his conviction by seeking and obtaining leave from the Court of Appeals.

Our research discloses no authority that recognizes the right to appeal a plea of guilty as a fundamental right. Under the due process-equal protection test of Ross v Moffitt, supra, Michigan’s scheme gives guilty-pleading defendants a fair opportunity to have their claims heard in our appellate courts. Further, Michigan’s current arrangements for inmate access to the courts, including law libraries, paralegal assistance, and staff attorney programs, satisfy the so-called right to meaningful access. Accordingly, we conclude that Michigan’s scheme does not offend the Fourteenth Amendment.

The United States Supreme Court has never specifically held that the federal constitution commands that an indigent defendant who pleads guilty or nolo contendere, and whose appeal therefrom is purely discretionary, is entitled to the appointment of appellate counsel. In Douglas, the California District Court of Appeals denied the defendants’ request for appointed appellate counsel in their appeal of right following their convictions at trial. Douglas, supra, pp 353-355. The Court required the states to furnish appellate counsel for indigent defendants in their first appeal as of right. Id., pp 356-357. The Douglas Court relied on Griffin v Illinois, 351 US 12; 76 S Ct 585; 100 L Ed 891 (1956), in which the Court, in a plurality opinion, held that a state cannot deny a defendant an appeal because he lacks the financial resources to purchase a trial transcript. In Douglas, the Court reasoned, in part, as follows:

There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that Ms case is without merit [under California’s then-existmg system for deciding whether to appoint counsel], is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has oMy the right to a meamngless ritual, wMle the rich man has a meanmgful appeal. [Id., pp 357-358.]

The Court also noted, however, “that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ ” Id., p 356.⁶

In Ross, North Carolina provided the defendant appointed counsel in his appeal of right to their intermediate appellate court following a conviction at trial. Id., pp 603-604. That court affirmed the convictions, and the defendant then sought to invoke the discretionary review procedure of the North Carolina Supreme Court. Id. The North Carolina Supreme Court refused to appoint counsel for review in that court. Id.

The Supreme Court affirmed the North Carolina Supreme Court. It held that the federal constitution does not require the appointment of appellate counsel on discretionary review to the North Carolina Supreme Court. Id., pp 610-612. Unlike Douglas, Ross separately analyzed the issue under both the Due Process and Equal Protection Clauses. In its due process analysis, the Court noted a fundamental difference between the trial and appellate stages of criminal proceedings. Id., pp 610-611. At trial, due process requires that the state provide the accused counsel as a shield to fend off the state’s efforts to convict him. Id. “By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below.” Id., p 610. Appellate counsel serves as a sword rather than a shield. Id., pp 610-611. The Court thus concluded that “[ujnfaimess results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.” Id., p 611.

In its equal protection analysis, the Ross Court explained that the Fourteenth Amendment does not require absolute equality, but does require an appellate system that is free of unreasoned distinctions. Id., p 612.

The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process. [Id., p 616.]

In concluding that appointed counsel is not required for a discretionary appeal to a state Supreme Court, the United States Supreme Court noted that the defendant had “received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals” in his first appeal of right. Id., p 614. The United States Supreme Court thus reasoned:

We do not believe that it can be said, therefore, that a defendant in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion of the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review. [Id., p 615.]

The doctrinal basis of the Griffin/Douglas line is difficult to ascertain. To the extent that Griffin and Douglas rely on equal protection principles, Washington v Davis, 426 US 229; 96 S Ct 2040; 48 L Ed 2d 597 (1976), undermined their validity by making proof of discriminatory puipose an essential element of an equal protection claim. Const 1963, art 1, § 20 is unquestionably facially neutral. Defendant in this case has not shown that the state intended to discriminate against criminal defendants on the basis of indigency. Recently, however, the Supreme Court in MLB v SLJ, 519 US 102; 117 S Ct 555; 136 L Ed 2d 473 (1996), rejected the notion that Davis had implicitly overruled the Griffin/Douglas line. In MLB, the Court extended the Griffin rationale to require Mississippi to supply a record to an indigent parent whose parental rights had been terminated to permit proper appellate consideration of her claims. While noting that the Griffin line of cases have reflected both equal protection and due process concerns, the MLB Court reasoned that most decisions in this area rest on an equal protection framework since “due process does not independently require that the State provide a right to appeal.” Id., p 120. The Court distinguished termination of parental rights cases from the “mine run,” id., p 116, of civil cases on the ground that they involve the permanent destruction of “the most fundamental family relationship.” Id., p 121. The Court did not explain, however, why the Davis purposeful discrimination requirement is inapposite. Indeed, the Supreme Court has yet to articulate any constitutional underpinnings for its “access to appeal” decisions in light of its own modem equal protection jurisprudence.

Despite the muddled state of its jurisprudence, we adhere to our duty to attempt to understand and apply what the Supreme Court has opined regarding the right of meaningful access. As explained below, we conclude that meaningful access does not require the appointment of counsel for defendants who seek discretionary leave to appeal from their guilty pleas. Our current system already provides those defendants with an adequate opportunity to present their claims fairly.

A. DISTINCT NATURE OF PLEA PROCEEDINGS

Appeals from plea-based convictions and appeals from convictions obtained following trials, like those appeals at issue in Douglas and Ross, are fundamentally different. Foremost, a defendant who tenders a plea has admitted guilt of the offense in open court. “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v Henderson, 411 US 258, 267; 93 S Ct 1602; 36 L Ed 2d 235 (1973).

Further, the state has a “fundamental interest in the finality of guilty pleas . . . .” Hill v Lockhart, 474 US 52, 58; 106 S Ct 366; 88 L Ed 2d 203 (1985). A guilty plea evidences a defendant’s desire to terminate the prosecution. Thus, a defendant who concedes his guilt has acceded to the state’s fundamental interest in finality.

Plea proceedings are also shorter, simpler, and more routine than trials; the record most often consists of the “factual basis” for the plea that is provided to the trial court. In contrast with trials, less danger exists in plea cases that the record will be so unclear, or the errors so hidden, that the defendant’s appeal will be reduced to a meaningless ritual. Also, a concession of guilt limits considerably the potential issues that can be raised on appeal. See 1A Gillespie, Michigan Criminal Law & Procedure (2d ed), § 16:30, pp 94-104 (discussing the effect of a plea on the availability of various appellate claims).⁷ These are all reasoned distinctions that are relevant to determining whether Michigan provides “meaningful access” to the appellate courts.

B. INDIGENT GUILTY PLEA DEFENDANTS IN MICHIGAN HAVE MEANINGFUL ACCESS TO THE APPELLATE SYSTEM

Given the obvious differences between trial-based and guilty plea convictions, it is clear that our current guilty plea procedures provide sufficient methods of assistance to meet the Ross meaningful access requirement. To preserve an issue for appeal, a defendant must move to withdraw his plea before the trial court. MCR 6.311(C). MCR 6.005(H)(4) states that “unless an appellate lawyer has been appointed, [appointed trial counsel is responsible for the] filing of postconviction motions the lawyer deems appropriate, including motions ... to withdraw plea, or for resentencing." (Emphasis added.) Thus, our court rules require trial counsel to assist the defendant in organizing and presenting to the trial court any potential appellate issues that warrant preservation. Accordingly, a pro se defendant seeking discretionary review will have the benefit of a transcript, trial counsel's framing of the issues in the motion to withdraw, and the trial court’s ruling on the motion. As in Ross, these factors will aid the defendant in identifying and asserting claims. Further, prison inmates filing discretionary applications will have the same access to law libraries, paralegal assistance, and staff attorneys that Michigan provides to them in other postconviction proceedings. While trial counsel cannot be relied on to advise the defendant of ineffective assistance of counsel claims, those claims that have merit likely will be apparent on the record.⁸

We acknowledge that the tools available to indigent defendants seeking leave to appeal from their guilty pleas are not equivalent to those present in Douglas and Ross. However, Douglas and Ross both involved appeals from convictions following trial. Neither Douglas nor Ross addressed the issue before us, namely, whether a defendant is entitled under the federal constitution to appointed counsel in a first discretionary appeal from a plea-based conviction. As stated, the differences between trial- and plea-based convictions are undeniable. Thus, any statements in Douglas and Ross suggesting the necessity of a reasoned lower court decision and a brief prepared by an attorney in the lower court must be considered in the context in which those cases were decided.

Finally, we acknowledge that the Court has, since Ross, continued to expand its “meaningful access” line of cases in the context of filing fees and transcripts. See, e.g., MLB, supra. However, we note that none of those decisions have expanded on the right to counsel recognized in Douglas. Thus, we conclude that the free transcript and counsel cases are really on separate trajectories. Indeed, compare the Court’s expansive jurisprudence in the free transcript/filing fees cases against its contracting jurisprudence regarding the right to counsel in identical settings. See, e.g., 3 LaFave, Israel & King, Criminal Procedure (2d ed), §§ 11.2(c) and (d). The Court has extended the right to transcripts at state expense in collateral attack cases and habeas corpus proceedings. In the analogous postconviction setting, the Court has never voted to expand the Douglas right to counsel. Since Douglas itself, the Supreme Court has never, not once, even in the case of inmates on death row, ordered counsel appointed for individual petitioners as a component of the right of meaningful access.⁹

V. CONCLUSION

No one questions that the appointment of appellate counsel at state expense would be more efficient and helpful not only to defendants, but also to the appellate courts. The distinct character of plea proceedings, however, will “make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right,” Ross, supra, p 616, from a trial conviction.¹⁰ Even more important, “the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required.” Id. “The Fourteenth Amendment ‘does not require absolute equality or precisely equal advantages,’ . . . nor does it require the State to ‘equalize economic conditions.’ ” Id., p 612. “We address not what is prudent or appropriate, but only what is constitutionally compelled.” Smith v Robbins, 528 US 259,_; 120 S Ct 746, 763; 145 L Ed 2d 756 (2000) (internal quotation omitted).¹¹

In summary, defendant is not entitled to appointed appellate counsel under either the state or federal constitution. Defendant is not entitled to the appointment of appellate counsel under art 1, § 20 because such assistance was not “provided by law” when defendant requested counsel. Moreover, the federal constitution does not mandate appointment of counsel under the present circumstances because defendant has not been denied meaningful access to Michigan’s appellate courts. Accordingly, we vacate the Court of Appeals order, reinstate the trial court’s order denying appointment of counsel, and remand the case to the trial court so that defendant may pursue his application for leave to appeal his convictions.¹²

Weaver, C.J., and Taylor and Young, JJ., concurred with Corrigan, J.

1 The Legislature subsequently enacted MCL 770.3(l)(e); MSA 28.1100(l)(e), providing that appeals from plea-based convictions shall be by application for leave to appeal.

2 The “as provided by law” language in this portion of Const 1963, art 1, § 20 was added by a constitutional amendment approved at a special election held on August 8, 1972.

3 See Krull, Eliminating appeals from guilty pleas, 29 Oct Ariz Atty 34, 35 (1992). Before a 1992 rule change in Arizona, that state

was but one of a small minority of states (seven in all) that allowed for the unrestricted appeal from judgments and sentences imposed pursuant to plea agreements. Of the remaining states, 21 do not allow for any appeals from plea agreements, six allow for appeals from plea agreements but restrict the issues that can be raised, and 16 allow for the express waiver of the right to appeal as a condition of a plea agreement. Arizona apparently has elected to become a member of this last group.

4 Following the statute’s enactment, we amended our court rules to eliminate the “liberally grant” standard of MCR 6.425(F)(1)(c) and to provide for the appointment of counsel in those circumstances directed by the statute.

5 To the extent that the Court of Appeals relied on and construed MCR 6.425(F)(1)(c) in Najar, supra, that decision is overruled.

6 As the Court later noted in Ross, the Douglas Court did not explicitly indicate whether its holding was based on the Due Process Clause or the Equal Protection Clause. “Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors.” Id., 417 US 609.

7 By pleading guilty or nolo contendere, a defendant waives the following issues: search and seizure claims, defective complaint and warrant claims, claims of error as to the preliminary examination (including sufficiency of the proofs to bind over), Fifth Amendment claims, noiyurisdictional evidentiary issues, challenges to operating a vehicle while under influence of alcohol predicate offenses, claims (including constitutional claims) relating to the defendant’s factual guilt and the prosecution’s ability to prove the case, claims of error in juvenile waiver proceedings, speedy trial claims (if the plea is unconditional), claims of violation of the statutory 180-day rule, claims of speedy trial under MCL 768.1; MSA 28.1024, claims of failure to timely file the habitual information, statute of limitations claims, unpreserved entrapment claims, double jeopardy claims that are unpreserved so that the necessary facts to support the claim are missing, and ineffective assistance of counsel claims in which the underlying issues are waived by a guilty plea. Gillespie, Michigan Criminal Law & Procedure, Practice Deskbook (2d ed), § 10:50, pp 10-15 to 10-17.

8 The dissent asserts that “a ‘correct adjudication of guilt’ involves more than just an admission of guilt. Claims of failures to honor plea bargains, coercion or involuntariness of a plea, or lack of mental capacity to knowingly enter a plea, for example, all address the correctness of the ‘a<Jjudication of guilt.’ ” Post, p 560.

The dissent utterly fails to explain why the constitution compels appointment of counsel to identify and assert those guilty plea issues that the dissent labels as involving a “ ‘correct adjudication of guilt.’ ” Id. Claims of failures to honor plea bargains, coercion or involuntariness of a plea, and lack of mental capacity to enter a plea are all examples of issues that require preservation by a motion to withdraw under MCR 6.311(C). A defendant will accordingly have assistance of appointed trial counsel in identifying and raising those issues worth preserving. MCR 6.005(H)(4).

Moreover, most of these claims would likely be apparent to the defendant either from the record or through his own knowledge; a defendant normally would not require the assistance of an appellate attorney to know, for example, that he was coerced into pleading guilty or that the prosecutor made a promise that has not been honored. The possibility that an attorney might prove helpful in some cases does not mean that the constitution requires the appointment of appellate counsel.

9 The dissent continually asserts that our decision in this case creates a new scheme. In truth, the people of Michigan created a new scheme. Their approval of Proposal b made guilty plea appeals discretionary. Also, the people’s representatives in the Legislature had not acted to provide appellate counsel at taxpayer expense to upset guilty pleas during the relevant period in this case. Rather than creating a new scheme, our decision upholds the system created by the people directly and through their elected representatives.

Similarly, the dissent suggests that our holding creates the “system we will come to know in Michigan.” Post, p 553. The dissent overlooks the fact that our decision concerns only those guilty pleas appeals after the passage of Proposal b but before the enactment of 1999 PA 200. Thus, the “system we will come to know in Michigan” is the one recently chosen by the Legislature, barring a successful challenge on constitutional grounds.

10 The dissent accuses us of “sandwiching this quotation from Ross between [our] own modifiers” and of “relying on snippets from Ross without accounting for its reasoning that counsel could be denied on a discretionary appeal following an appeal where counsel was provided.” Post, p 560. This accusation is baseless. We have fully and fairly discussed Ross’ reasoning and holding. We obviously do not suggest through the above quotation that Ross decided the precise issue in this case.

11 The dissent devotes much of its analysis to showing that appointment of counsel would aid a defendant in identifying potential errors and asserting claims. This line of reasoning is based on a faulty premise, i.e., that the constitution requires states to do everything that would make appellate practice easier and more efficient. Ross, supra, p 616. By arguing, in effect, that appointment of counsel would be “prudent or appropriate,” the dissent fails to explain why it is “constitutionally compelled.” Smith, supra, 120 S Ct 763.

12 We observe that the United States District Court for the Eastern District of Michigan recently enjoined the enforcement of 1999 PA 200 and the provisions of MCR 6.425 designed to implement it following that court’s earlier declaration that the statute is unconstitutional. Tesmer v Kowalski, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued June 30, 2000 (Docket No. 00-CV-10082). However, the district court expressly limited the scope of its ipjunctive order to the enforcement of 1999 PA 200. Accordingly, as the federal district court itself acknowledged, the decision in Tesmer does not affect the proceedings in this case.