PEOPLE OF MI V DEWITT L SETTLES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 28, 2008
Plaintiff-Appellee,
v
No. 278704
Wayne Circuit Court
LC No. 98-013901-FH
DEWITT L. SETTLES,
Defendant-Appellant.
Before: Wilder, P.J., and Jansen and Owens, JJ.
PER CURIAM.
Defendant pleaded guilty on January 20, 1999, to assault with intent to rob while
unarmed, MCL 750.88. Defendant was sentenced to 2½ to 15 years’ imprisonment on
November 30, 1999. On November 22, 2006, defendant requested appointed appellate counsel,
pursuant to Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005).
Defendant appeals by leave granted from the order denying his Halbert request for appointed
appellate counsel. People v Settles, unpublished order of the Court of Appeals, entered April 7,
2008 (Docket No. 278704). We affirm.
Defendant argues that Halbert applies retroactively to his conviction and the trial court
denied defendant his right to first-tier appellate review with the assistance of counsel. We
disagree.
The retroactive applicability of a rule of criminal procedure is a question of law that this
Court reviews de novo. People v Parker, 267 Mich App 319, 326; 704 NW2d 734 (2005).
Defendant pleaded guilty in 1999. At the time of defendant’s plea, Michigan law provided him
with 42 days to seek appointed appellate counsel from the trial court. MCR 6.425(F)(2)(c);
People v James, 272 Mich App 182, 186; 725 NW2d 71 (2006). It is undisputed that defendant
did not do so. However, in 2005, the United States Supreme Court decided Halbert, holding that
indigent defendants convicted by plea in a Michigan court have a federal constitutional right to
appointed appellate counsel for first-tier review by the Michigan Court of Appeals.
Pursuant to Halbert, defendant sought appointed appellate counsel from the trial court in
2006. The trial court denied defendant’s request and concluded that “. . . to date, neither the
United States Supreme Court nor Michigan Courts have held that Halbert is to be applied
retroactively to cases which were final at the time Halbert was decided.” It is undisputed that
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defendant’s case was “final” at the time Halbert was decided. Therefore, we must decide
whether the trial judge correctly concluded that Halbert may not be retroactively applied to
defendant’s plea-based conviction.
In 2005, our Supreme Court was confronted with this very issue, however, the Court held
the application for leave in abeyance pending the outcome of a case before the United States
Court of Appeals for the Sixth Circuit. People v Houlihan, 474 Mich 958, 706 NW2d 731
(2005). Simmons v Kapture (On Rehearing), 516 F3d 450 (CA 6, 2008), dealt with the same
issue and was on remand from the United States Supreme Court for reconsideration in light of
Halbert.
In Simmons, supra at 451, the Sixth Circuit concluded that because the petitioner’s state
conviction was final when the United States Supreme Court decided Halbert, the issue of
Halbert’s applicability was governed by Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed
2d 334 (1989). According to Teague, a “new rule” of criminal procedure will not apply
retroactively to cases on collateral habeas review, unless that rule “either decriminalizes a class
of conduct or is a ‘watershed’ rule that implicates the fundamental fairness and accuracy of a
criminal proceeding.” Id. at 311. The Sixth Circuit concluded that Halbert constitutes a “new
rule” and does not decriminalize certain conduct and is not a “watershed” rule. Simmons, supra
at 451. Therefore, Halbert could not be applied retroactively to a conviction that was already
final. Id.
After reviewing the Sixth Circuit’s decision in Simmons, our Supreme Court denied the
application for leave to appeal held in abeyance in Houlihan, concluding that it was not
persuaded that it should review the question presented. People v Houlihan, 480 Mich 1165; 746
NW2d 879 (2008). Thus, our Supreme Court indicated approval of the Sixth Circuit’s holding
by denying leave in Houlihan after Simmons was decided. Therefore, we conclude that the trial
court properly denied defendant’s Halbert request for appointed appellate counsel.
Affirmed.
/s/ Kurt T. Wilder
/s/ Kathleen Jansen
/s/ Donald S. Owens
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