PEOPLE v. BELTRAN, 456 Mich. 878 (1997)

570 N.W.2d 782

PEOPLE v. BELTRAN.

No. 109584.Supreme Court of Michigan.
Leave to Appeal Denied October 13, 1997.

Court of Appeals No. 183454.

BOYLE, J. (dissenting).

There are three reasons why this Court should make an exception to our traditional approach, MCR 7.302(B), and engage in error correction in this case. First, the Court of Appeals opinion ordered a remand for an evidentiary hearing despite the absence of a factual record to support the allegation of an unkept promise. Given that defense counsel’s appellate brief did not make this claim and that defendant claimed, without factual support, in an in propria persona supplementary brief that the prosecutor had agreed in another case to dismiss this case, this may have seemed the pragmatic course at the time. However, that transcript is now before us and it does not factually support the

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claim. The remand was erroneously ordered, People v. Johnson, 202 Mich. App. 281 (1993).

Second, an unnecessary order of remand imposes a burden on the trial court’s time and resources and a burden on the funding unit to provide an appointed lawyer. Third, and most important, in my view failure to vacate the order of remand in the case sends a message regarding the relationship between counsel and client that undermines the values of the system and the relationship between counsel and client. Original appellate counsel raised four issues on appeal. Presumably because he could not meet the threshold requirement for factual support in the record or an affidavit, counsel did not assert the claim that was remanded. Thus, appellate counsel properly did not assert the claim.

The failure to vacate the order remanding the claim for hearing impairs the delicate balance appellate counsel brings to professional judgments that are consistent with counsel’s obligation to the client and counsel’s ethical obligation as an officer of the Court. I would vacate the remand because the Court of Appeals ruling undermines the professional stature of appellate defense counsel and may be seen as further evidence that client insistence, rather than professional judgment, defines appellate representation.

WEAVER and TAYLOR, JJ. We concur in the statement of Justice BOYLE.