MICHIGAN APPEAL LAWYER – Appeal of Right vs. Application for Leave to Appeal

Michigan appeal lawyer
Michigan Appeal of Right vs Application for Leave to Appeal

An experienced Michigan appeal lawyer is a chance for hope after an unfair or wrongful conviction.   Appeals are an important part of the criminal legal system. A conviction does not have to be the last word in a criminal case.  If a jury wrongly convicted someone,  if the trial was not fair, or if the sentence imposed does not comply with law, a defendant may have legal remedies to attack the case.  An appeal can be newfound hope in the hands of a skilled Michigan appeal lawyer.

An appeal is a complex and difficult area of criminal law.  An appeal must be done correctly because once the appeal process has ended, a defendant is not entitled to another.  The door to legal remedies can be permanently closed.  This is why it is important to hire an experienced Michigan appeal lawyer to perfect a criminal appeal.  I have had many people write me from prison asking if I can file another appeal for them because their appellate attorney did not raise a variety of legal issues.  I have been able to pursue other post-conviction remedies after the appeal door has closed, but there are significant hurdles to overcome.

What an appeal is not.

Before I explain what the differences are between an appeal of right vs an application for leave to appeal, I want to explain what an appeal is not.  An appeal is not a new trial.

The court will not weigh the evidence or second-guess the jury.  Many people believe that the Court of Appeals will reassess witness credibility on appeal.  This will not happen.  The job of assessing witness credibility is solely left to the fact-finder, either a jury or judge.  In essence, on appeal a defendant cannot argue that one witness is more believable than the other.  Furthermore, a defendant cannot present any new evidence or additional witnesses.  The Court of Appeals will only address legal errors and not questions of fact.

The appellate courts are error correcting courts. The Court decides an appeal based on the transcripts of the lower court proceedings. Generally, if the trial attorney did not preserve an issue by objection or argument during the trial, the Court of Appeals will not consider the issue because it is considered “waived” and “not preserved.”  As I stated at the beginning of this article, an appeal is an extremely complex process.  Even a trial attorney must think about future appeals by preserving the issues for the appellate attorney.

Presenting a case before the Michigan Court of Appeals, Michigan Supreme Court and Federal Court without an experienced Michigan criminal appeal lawyer is an extremely difficult, if not impossible task. A Michigan appeal lawyer must convincingly and skillfully present legal issues, write coherently and cite the correct legal authority to support the arguments in the appeal brief.

Drafting an appeal is a time intensive process.  It can cause a layperson a great deal of stress and confusion.  It is worth pointing out a second time that, in most cases, a defendant will only have one opportunity to pursue an appeal.  If a defendant does not correctly follow the Michigan rules of appellate procedure, the appeal may get dismissed without the court even hearing the arguments. Therefore, we urge you to only pursue an appeal with an experienced appeal lawyer.  I do not want to make light of the situation but I have to mention this fact.  Most people would not cut their own hair.  If people would not do that for fear of making a mistake, then an appeal deserves greater respect and caution.

APPEAL OF RIGHT vs APPLICATION FOR LEAVE TO APPEAL

Michigan has a two-tier appellate system. The Michigan Supreme Court hears cases by leave only. The  Court of Appeals must hear a defendant’s appeal after a trial.  This is called an “appeal of right.”  If the defendant pled guilty the Court of Appeals must decide to take the case.  This is called “an application for leave to appeal.”

The appeal process typically starts in the Michigan Court of Appeals. The person filing the appeal is called the “appellant” the person who responds is called the “appellee.”  There are generally two ways to initiate a case in the Michigan Court of Appeals.

  • Appeal of Right: A defendant has an appeal of right after a jury trial conviction.  This means that the Michigan Court of Appeals must hear the case and write a formal opinion that addresses all of the arguments.  The process starts when an appellate lawyer files the claim of appeal, that is, an announcement that the defendant will pursue an appeal.  An appeal of right is specifically provided for by the Michigan Constitution and Court Rules.  If the defendant has properly filed the appellate brief in accordance with the appellate court rules, the Court of Appeals will make a decision on the merits of the case. MCR 7.203(A); MCR 7.204 2.
  • Application for leave to appeal: An application for leave to appeal is the only way to appeal a plea based conviction.  An appeal lawyer or a defendant must ask the Court of Appeal to take the case.  The court does not have to accept the accept the application.  There is no automatic right to an appeal when a defendant has pled guilty to an offense. The Court of Appeals decides if the case is worth hearing. If the Court grants the application for review, only then will the Court review the arguments and issue an opinion on the merits. MCR 7.203(B); MCR 7.205 3.  The Court of Appeals denies most of the applications for leave to appeal.  In fact, the court dismisses the appeal with only two sentences.  Essentially, the court states that it does not “find merit in the grounds presented.”

Risks associated with an application for leave to appeal

There can be significant risks in an application for leave to appeal. First, the legal system prefers resolution of criminal cases with guilty pleas.  Cases are resolved in an efficient and speedy manner.  Unfortunately, it is quite rare for the Court of Appeals to reverse a guilty plea conviction.

One of the biggest problems associated with all guilty plea cases is that a defendant could face a higher sentence if he or she wins the appeal. In order to challenge a guilty plea case, the alleged errors must first be brought to the attention of the circuit court judge in a motion to withdraw the plea.  This must be done before the defendant can pursue the appeal in the Court of Appeals. MCR 6.311 (C).

If the circuit court judge agrees that the plea should be withdrawn, the case starts over.  This means that any plea deal the defendant received is gone.  For example, a person who received a plea deal for a dismissal of a first-degree murder charge in exchange for a second-degree murder charge, will again face the first-degree charge. A defendant will face any charges the prosecutor agreed to dismiss when he or she first pled guilty. See MCR 6.312.  Most defendants do not want to face that risk.

As a Michigan appeal lawyer I ask clients whether they are willing to take the risk of plea withdrawal.  In any plea based appeal, if the client is successful in withdrawing the guilty plea, the prosecutor could take the defendant to trial on the original charges.  The prosecutor does not have to make a plea offer the second time around.  Theoretically, then, if convicted, a defendant could be sentenced to more time than he or she is presently serving.

One way to avoid risk of a plea based appeal (application for leave to appeal) is to appeal only the sentence.  If such an appeal is successful, the defendant would gain an opportunity for a reduced sentence with little or no chance for an increased sentence.

In an appeal of right, the defendant-appellant does not face the same risks.  The reason is that the defendant had made the decision to proceed to trial.  So, he or she did not receive any plea bargain.  In essence,  there is nothing to lose.  So, challenging a conviction in an appeal of right does not have the same inherent risks.

Conclusion

As you can see from this brief article, the appeal process can be complicated.  An appeal is not something defendants should do on their own.  A defendant should hire an experienced Michigan appeal lawyer.  It takes extensive knowledge of the appellate rules, case law, and arguments to prepare an effective appeal brief.  Not only that, the attorney must be comfortable in arguing before the Court of Appeals.

The benefit of an experienced Michigan Appeal Lawyer

At CZARNECKI & TAYLOR we have done many appeals.  We have been successful in attacking plea based convictions in applications for leave to appeal.  Those appeals have resulted in the reduction of sentences.

We have also won appeals pursued as an appeal of right.  We have had our client’s convictions overturned.

As a Michigan appeal lawyer I am honest and upfront about the way we handle appeals.  We only charge for the initial transcript review.  We will identify the legal issues and put our findings in writing.  Most attorneys charge clients a flat rate even if there is no appeal.  We do not do that.  We will advise you.  Then after we have given you our assessment in writing, a defendant and his or her family can make the decision to hire our firm to proceed with the full appeal.  This process if fair.  You do not want to spend money on an appeal when the issues are weak or if the issues are non-existent.

We are more than willing to discuss your case with you or family members and friends of someone incarcerated.

You can call us 24/7-365.  We have weekend and evening appointment availability.

James E. Czarnecki II (586) 718-2345

Genevieve L. Taylor (586) 350-6044

or visit our website:  CZARNECKI & TAYLOR website