CAVANAGH, J. (dissenting).

I dissent from the majority opinion. That opinion swerves and dodges the decisions of the United States Supreme Court to generate a rationale for denying counsel in this case, and in doing so sets up a system that requires payment at the door for access to justice. Those who cannot pay that fee are offered only a meaningless ritual, although those who can afford it will have a meaningful appeal. By denying counsel to indigent defendants and setting up this system, the majority commits structural error, which presumptively results in prejudice. See Penson v Ohio, 488 U.S. 75, 88; 109 S.Ct. 346; 102 L.Ed.2d 300 (1988). I profoundly hope that this matter will make its way to the United States Supreme Court, so that Court can correct the constitutional miscarriage committed by the majority, and so that it can issue the decision that is uniformly directed by its past opinions.

I

After announcing that the United States Supreme Court has never addressed the precise question before this Court, the majority pursues a path that would allow it a free hand to take this case to the desired destination. That path begins with the statement that the "doctrinal basis" of Douglas v California, 372 U.S. 353; 83 S.Ct. 814; 9 L.Ed.2d 811 (1963), and Ross v Moffitt, 417 U.S. 600; 94 S.Ct. 2437; 41 L.Ed.2d 341 (1974), is "difficult to ascertain." Ante at 515. Having left the designated path by searching for doctrinal clarity, which the Supreme Court itself has disclaimed by admitting that the precise rationale for these cases has never been articulated, see Smith v Robbins, 528 U.S. 259, ___; 120 S.Ct. 746, 759; 145 L.Ed.2d 756 (2000), the majority proceeds down a road it calls "meaningful access." Ante at 522.

The Court's decisions in Douglas and Ross, and what those constitutional decisions require in the instant case, are not so difficult to understand, though, by considering the understanding the Supreme Court itself has had of those cases. Throughout the cases following Douglas and Ross, the Court has stated that it has "held again and again, an indigent defendant is entitled to the appointment of counsel to assist him on his first appeal. . . ." Entsminger v Iowa, 386 U.S. 748, 751; 87 S.Ct. 1402; 18 L.Ed.2d 501 (1967). By closely examining Douglas, Ross, and their progeny, why counsel was required in Douglas, and why the Court concluded that counsel was not constitutionally required in Ross, become clear.

Indeed, those decisions of our nation's highest Court poignantly outline the route laid out by the constitution. Though the majority views these decisions as land mines, and weaves to and fro to avoid them, I find them to construct a path. By following that constitutional path, I conclude that, as a matter of federal constitutional law, indigent defendants must have appointed counsel to assist them in pursuing their appeals by leave, their first and only appeal on the merits.

A. Our Journey Begins: Griffin v Illinois

In our society, sometimes a sense prevails that if some of its members have not provided for themselves all that they need, they have only themselves to blame. Despite this social sense, in the context of a criminal prosecution, it clearly runs headlong into the view, embodied in our constitution, that all people are equal before the law and are entitled to basic protections in its face. The United States Supreme Court first recognized the supremacy of this latter view, as it relates to the availability of avenues of appeal from criminal convictions, in Griffin v Illinois, 351 U.S. 12; 76 S.Ct. 585; 100 L.Ed. 891 (1956). In that case, the Court held that a state may not grant appellate review in a way that discriminates because of poverty or financial status. Although on its face this rule appears clear enough, it has proven difficult in practice. From this simple beginning, the federal courts have been called on repeatedly to define the lines of constitutional protection, first as various states continued to operate systems that failed to grasp the rule's essence, and then as states created systems that attempted to skirt the lines of past decisions to yield savings in financial or judicial resources.

B. Douglas v California: An End to Meaningless Ritual in the First Appeal

Our nation's Supreme Court first passed directly on the right to appointed counsel on appeal in Douglas v California, supra. There, the defendants, following conviction on a variety of felonies, sought review in the California District Court of Appeal. In the course of seeking review, the defendants sought, and were denied, appointed counsel. The district court reasoned that it had "gone through" the record and concluded that "no good whatever could be served by appointment of counsel." Id. at 354-355.

The Supreme Court believed this entire concept most troubling:

In spite of California's forward treatment of indigents, under its present practice the type of an appeal a person is afforded in the District Court of Appeals hinges upon whether or not he can pay for the assistance of counsel. If he can the appellate court passes on the merits of his case only after having the full benefit of written briefs and oral argument by counsel. If he cannot the appellate court is forced to prejudge the merits before it can even determine whether counsel should be provided. At this stage in the proceedings, only the barren record speaks for the indigent, and, unless the printed pages show that an injustice has been committed, he is forced to go without a champion on appeal. Any real chance he may have had of showing that his appeal has hidden merit is deprived him when the court decides on an ex parte examination of the record that the assistance of counsel is not required. [ Id. at 355-356.]

Save the gracious comments regarding California's treatment of indigency in other circumstances, this statement applies with equal force, and in fact describes, the system approved by the majority today. The only difference is that when the indigent is "deprived of a champion," the prosecutor faces no such burden, and can command all his knowledge, experience, and resources to rebut any arguments the unskilled indigent could offer on his own.

Nonetheless, the Douglas Court, showing admirable restraint, limited itself to the facts before it. The Court cautioned:

We are not concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike. . . . [ Id. at 356.]

The Court concluded this portion of the discussion by noting that "where the merits of the one and only appeal an indigent has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor." Id. at 357.

Thus, from Douglas, several lessons are apparent. First, the type of appeal a person is afforded may not "hinge upon whether or not he can pay for the assistance of counsel." Id. at 355-356. Second, the Court appears to link in large measure counsel's availability to an indigent defendant on his first appeal with "[a]ny real chance he may have had of showing that his appeal has hidden merit. . . ." Id. at 356. The deprivation of one equals the deprivation of the other. Id.

Not precisely clear from the face of Douglas is the scope of the opinion as it applies to first appeals not of right. The language of the case addresses first appeals as of right, and thus could be read, as the majority demonstrates, to preclude applicability regarding first appeals not of right. However, other portions of the opinion's language, and certainly its logic, dictate that the limitation precludes the opinion's application only to discretionary appeals following first appeals.

Fortunately, the Supreme Court has not left us without guidance on this matter, but has discussed its view of the holding in Douglas on many occasions. The first of these, and thus the next stop on our journey, is Ross v Moffitt, supra.

Before proceeding onward, though, we must pause at the point that has come to define the evil that Douglas sought to eradicate:

The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between "possibly good and obviously bad cases," but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. 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 of the record, research of the law, and marshaling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal. [ Id. at 357-358.]

Mindful of this, we proceed on to Ross.

C. Ross v Moffitt: The Outer Boundary Defined

In Ross, the Court was presented with the opportunity to decide the essential question left open in Douglas, whether the right to appointed counsel would extend to discretionary appeals following an appeal of right. The Court was actually presented with two distinct discretionary appellate routes for which counsel was sought, one for assistance in seeking to appeal to the North Carolina Supreme Court, and the other for assistance in seeking certiorari before the United States Supreme Court.

Following two separate forgery convictions, the respondent, while represented by appointed counsel, appealed to the North Carolina Court of Appeals. That court affirmed his convictions. Afterward, the defendant was denied counsel in his quest to seek review before both the North Carolina and the United States Supreme Courts. Appeal to the latter Court, of course, is available in this context only by way of an entirely discretionary grant of certiorari. Likewise, appeal to the North Carolina Supreme Court was also discretionary and available only by leave of court. In determining which cases to grant leave, the North Carolina Supreme Court, much as our Court does, followed particular rules that embodied concepts beyond the mere correctness of the result in a particular case.

In North Carolina, the court had the discretion to grant leave if it found that the application satisfied the applicable statute. To grant, the court had to find "(1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court." Ross, supra at 613-614, quoting NC Gen Stat 7A-31(c). These rules bear a close resemblance to our own rules for granting leave, in our case delineated by MCR 7.302(B).

Writing for the Court, Justice Rehnquist began with a review of the Court's past cases addressing indigent appeals. Referencing Griffin, Draper v Washington, 372 U.S. 487; 83 S.Ct. 774; 9 L.Ed.2d 899 (1963), Smith v Bennett, 365 U.S. 708; 81 S.Ct. 895; 6 L.Ed.2d 39 (1961), and Burns v Ohio, 360 U.S. 252; 79 S.Ct. 1164; 3 L.Ed.2d 1209 (1959), Justice Rehnquist noted that the "decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons." Ross, supra at 607. From this rule, he then noted that Douglas "departed somewhat from the limited doctrine of the transcript and fee cases and undertook an examination of whether an indigent's access to the appellate system was adequate." Id. He reasoned further:

The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right. [ Id.]

Discussing Douglas, Justice Rehnquist also noted the key distinction discussed above:

that under this system an indigent's case was initially reviewed on the merits without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary "ex parte examination of the record," but had their arguments presented to the court in fully briefed form. [ Id. at 608 (internal citations omitted).]

As the Court stated, the "[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment." Id. at 608-609.

Justice Rehnquist, though first recognizing the viability of a Due Process Clause analysis, nonetheless found that such a path would not lead to appointing counsel in the case before the Court, focusing on the differences between trial and appellate situations. "The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way." Id. at 611.

Justice Rehnquist then noted that "[l]anguage involving equal protection notions is prominent in both Douglas and in other cases treating the rights of indigents on appeal." Although the states cannot "adopt procedures which leave an indigent defendant `entirely cut off from any appeal at all,' by virtue of his indigency," id. at 612, quoting Lane v Brown, 372 U.S. 477, 481; 83 S.Ct. 768; 9 L.Ed.2d 892 (1963), or "extend to such indigent defendants merely a `meaningless ritual' while others in better economic circumstances have a `meaningful appeal,'" id, quoting Douglas, supra at 358, "[t]he question is not one of absolutes, but one of degrees." Id. Thus, it appears that, although Douglas clearly represented a level of disparate treatment that could not be tolerated by the Court, other situations, in some way degrees apart, but less invidious than the procedure in Douglas, might be acceptable. Rather than an absolute rule, Douglas instead offers a stick against which other procedures must be measured.

The Douglas Court itself, in its exercise of restraint, spoke only of the situation before it, offering little insight into such degrees. Thus, we turn to the rationale of the Ross Court for tools to evaluate and measure this question of degree.

In approaching this question, Justice Rehnquist first offered an in-depth review of the procedure of the North Carolina Supreme Court, previously noted. These procedures are similar to those of our own Court. The question to be answered in determining whether the North Carolina Supreme Court would grant discretionary review was not the correctness of the result or the rationale evidenced below, but rather the importance of the case to the state's jurisprudence. Indeed, though our own court rule specifically recognizes clear error and manifest injustice as potential bases supporting intervention, no equivalent provision was found for the North Carolina Supreme Court. Accordingly, the North Carolina Supreme Court was confined to the importance of the legal principles present in a case, rather than the particular merits of the case itself. This distinction was soon to be persuasive for Ross. Before returning to the function of North Carolina's discretionary review, however, Justice Rehnquist came to the determination required under Douglas: whether the degree of restriction imposed on a defendant by the denial of counsel for a discretionary review would leave the indigent defendant with only a meaningless ritual, though a moneyed defendant would have a meaningful appeal. If so, then an "unconstitutional line" would have been drawn.

On the other hand, as also recited by Justice Rehnquist, the Fourteenth Amendment "does not require absolute equality or precisely equal advantages." Ross, supra at 612, quoting San Antonio Ind Sch Dist v Rodriguez, 411 U.S. 1, 24; 93 S.Ct. 1278; 36 L.Ed.2d 16 (1973). Likewise, the state is not required to "equalize economic conditions," id., quoting Griffin, supra at 23 (Frankfurter, J., concurring), nor to be "free from unreasoned distinctions."

Thus, the "question of degree" requires measurement. To determine where the difference between the counseled application of a moneyed defendant and the uncounseled application of the indigent lies, Justice Rehnquist turned to the question most important to an appellate court, and one it is well positioned to answer. That is, whether the materials in the uncounseled application are sufficient to be helpful to the Court in reaching a decision.

The facts show that respondent, in connection with his Mecklenburg County conviction, 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. Thus, prior to seeking discretionary review in the state Supreme Court, his claims had "once been presented by a lawyer and passed upon by an appellate court." We do not believe 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 the trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by 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. [ Ross, supra at 614-615 (internal citations omitted; emphasis added).]

Therefore, the Ross Court's focus was, and hence ours must be, whether the materials available to an indigent defendant, without the benefit of counsel, would be adequate to allow a court to determine whether to grant further review. We must compare the situation in Ross to what could come to be in the instant case, and what has come to be under the scheme imposed by the majority.

In the instant case, an indigent defendant is faced, by law, with only the ability to apply for leave to our Court of Appeals, and is now required to do so without the benefit of appointed counsel. He will have a transcript of the trial court proceedings. This is not all that he must have to offer our Court of Appeals, however; more is required for that Court's "basis for its decision to grant or deny review." Id. at 615. Return to the language above from Ross, and in particular, its italicized portions. Applying the dictates of our Supreme Court to the facts of the instant case, we need add but one word to describe the instant defendant's situation, which we shall bracket:

At that stage he will [not] have, at the very least, . . . a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case.

Thus, rather than being comparable to the situation in Ross, the question before us presents a situation almost completely inapposite. Our Court of Appeals will have no brief, or even an identification of issues, by any counsel for the defendant. It will have, in nearly all instances, nothing in the way of an opinion of the court below on any substantive matter. Thus our Court of Appeals will have only the record before it, along with "whatever submissions respondent might make pro se. . . ." It may well have, however, an offering in opposition from the prosecutor, who is free to muster all the resources of the prosecutor's office to oppose the application. This "question of degrees" between the instant case and Douglas, which Ross requires us to ask, instead becomes a vain search for distinctions between the instant case and Douglas. The degrees separating a "meaningless ritual" from a "meaningful appeal" are substantial, and the degrees separating the tools approved in Ross and those present in the instant case are equally substantial. Most importantly, though, in answer to the "question of degrees" Ross asks, which determines the constitutionality of the procedure before us, the degrees separating the meaningfulness of an indigent defendant's appeal from that of a moneyed defendant are immense. Applying the analysis in Ross, we can ably conclude that the scheme imposed by the majority is unconstitutional under Ross because of its failure to separate itself from the gulf that existed between indigent defendants and moneyed defendants in Douglas.

Even before we depart from Ross, though, we can comfort ourselves that we are indeed correct in our determination by turning to the factors on which the Ross Court fortified its conclusion:

We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been "a correct adjudication of guilt" in every individual case, see Griffin v Illinois, but rather whether "the subject matter of the appeal has significant public interest," or whether "the cause involves legal principles of major significance to the jurisprudence of the State," or whether the decision below is in probable conflict with a decision of the Supreme Court. The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above. Once a defendant's claims of error are organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review. [ Ross, supra at 615 (citations omitted; emphasis added).]

Once again, we have added emphasis not only to aid the reader, but also as a tool for analyzing the stark contrast between the system underlying Ross and what now exists in our state under the majority decision. Turning to the first italicized section, with but a single modification, I offer the Ross logic as it now applies to indigent defendants seeking leave in the Court of Appeals:

The critical issue in that court, as we perceive it, is whether there has been "a correct adjudication of guilt" in every individual case, see Griffin v Illinois. . . .

Recall above the Supreme Court's detailed analysis of the jurisdiction and practices of the North Carolina Supreme Court. Consider as well how it compared to the jurisdiction of this Court and MCR 7.302(B). Now, compare it to the jurisdiction and practice of our Court of Appeals. MCR 7.302(B) is applicable only to this Court. The rules applicable to our Court of Appeals are found in subchapter 7.200 of our court rules. MCR 7.203(B) governs the jurisdiction of the Court of Appeals for appeal by leave:

(B) Appeal by leave. The Court may grant leave to appeal from:

(1) a judgment or order of the circuit court, court of claims, and recorder's court which is not a final judgment appealable of right;

(2) a final judgment entered by the circuit court or the recorder's court on appeal from any other court;

(3) a final order of an administrative agency or tribunal which by law is appealable to or reviewable by the Court of Appeals or the Supreme Court;

(4) any other judgment or order appealable to the Court of Appeals by law or rule;

(5) any judgment or order when an appeal of right could have been taken but was not timely filed.

Appeal by leave in guilty-plea cases is provided by MCL 770.3(1)(e); MSA 28.1100(1)(e):

Subject to the limitations imposed by section 12 of this chapter, an aggrieved party shall have a right to appeal from a final judgment or trial as follows:

* * *

(e) All appeals from final orders and judgments based upon pleas of guilty or nolo contendere shall be by application for leave to appeal.

Last, MCR 7.205 governs the mechanics of applications for leave to appeal. Of particular note is MCR 7.205(D):

Decision.

(1) There is no oral argument. The application is decided on the documents filed and, in an appeal from an administrative tribunal or agency, the certified record.

(2) The court may grant or deny the application; enter a final decision; grant other relief; request additional material from the record; or require a certified concise statement of proceedings and facts from the court, tribunal, or agency whose order is being appealed. The clerk shall enter the court's order and mail copies to the parties.

(3) If an application is granted, the case proceeds as an appeal of right, except that the filing of a claim of appeal is not required and the time limits for the filing of a cross appeal and for the taking of the other steps in the appeal, including the filing of the docketing statement (28 days), and the filing of the court reporter's or recorder's certificate if the transcript has not been filed (14 days), run from the date the order granting leave is certified.

(4) Unless otherwise ordered, the appeal is limited to the issues raised in the application and supporting brief.

These quotations are unfortunately voluminous, but this is an inherent difficulty of demonstrating a negative. Neither the statute governing plea-based appeals nor the court rules governing jurisdiction of the Court of Appeals contain any limitation or jurisdictional statement comparable to MCR 7.302(B). More importantly, no authority contains any sort of jurisdictional basis limitation that even resembles that of the North Carolina Supreme Court discussed in Ross.

This is so because the Court of Appeals, unlike this Court, or the North Carolina Supreme Court in Ross, is not limited in such a fashion. Rather, the function of the Court of Appeals is correcting errors. Thus, the function of that Court is precisely addressed by Griffin and Douglas, and conversely not at all by Ross. That function is determining whether there has been "a correct adjudication of guilt." The very reason "fortifying" the Court's decision in Ross cuts the opposite way in the instant case. The function of our Court of Appeals is determining the merits. As mentioned in the notes above, its order denying leave uniformly state that leave is denied for "lack of merit in the grounds presented."

Once again, consider the second portion of the Ross fortifying rationale:

The Court may deny [leave] even though it believes that the decision of the [trial] court was incorrect.

The wording of this quotation leaves my editing less efficient, but it nonetheless contains a lesson. Nothing in our court rules or statute preclude the Court of Appeals from denying leave even though it may believe that the trial court's decision was incorrect. Loosely defining "incorrect," such a rule might well be appropriate, because it might be uneconomical, even pointless, for the Court of Appeals to correct a trial court decision on a minor point that would not affect the final decision. Likewise, this might be the case when a court below reached a correct result for an incorrect reason. Again, barring other considerations, concerns of judicial economy might counsel against granting leave. In the North Carolina situation considered in Ross, the correctness of the decision below was unmentioned and arguably irrelevant under the governing statute, but the function of our Court of Appeals is reviewing the merits and correcting errors made by the lower courts. Thus, any reliance by the majority on the Ross Court's logic, and any comparison between the system in Ross, and that imposed by the majority, is wholly lacking in reason.

Finally, consider once more the last section of the Ross alternative supporting rationale:

Once a defendant's claims of error are [not] organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review.

This quotation actually cuts two ways, and both do injury to our system. First, no organization or presentation of the defendant's claims "in a lawyerlike fashion" to the Court of Appeals will occur in the absence of counsel. That Court will have no assistance from the indigent defendant's corner, save whatever efforts he might make pro se. Moreover, whatever he offered to the trial court would be just that, offered to the trial court. At times, "making a record for appeal" could actually work on the basis of trial court offerings. More common, though, are those errors that are less than apparent at the trial court level. To the extent that they are apparent, time to research and accurately marshal the law may not be. On some occasions, these errors may not be perceived at all, and be apparent only when the record is reviewed by a trained eye.

Second, as the quotation might be more readily understood, the justices of this Court would similarly face a lack of organized and supported claims of error on which to make a decision. We would be called on, were we to fulfill our duty, to review the application in each case to attempt to determine what the claims are. Then, we would have to turn to the record and attempt to locate the perceived source of errors, most likely without the benefit of citation, and finally to research the law to determine whether the claim is indeed justified. Further, that presumes we would confine ourselves only to those errors claimed by the pro se indigent defendant.

In the face of the above, this Court would certainly take a more efficient approach. It would strictly enforce the familiar rule that a litigant may not simply claim error and leave us to research the law. Mitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388 (1959). It would refuse, even as it does now, to consider unpreserved errors, regardless of possible or apparent merit, and enforce the Court's complex procedural and filing requirements.

As it takes each docket-clearing step, however, this Court would widen the gulf between a meaningful presentation of an appeal and a meaningless ritual of denial of leave. With each procedural denial, this Court will further fortify the barricade before the door that grants admission. Each passing day and order will move this Court ever closer to ripping from under itself the support that kept the North Carolina Supreme Court's system in Ross, and our own system before the instant decision, within constitutional boundaries.

We are as bound by our constitution and Ross as our Court of Appeals, and equally likely, following the instant decision, to be forced to choose between sifting through an immense burden of pro se applications and taking actions that will immeasurably increase the gap between moneyed and indigent defendants. To be faithful to our oath, Michigan appellate judges will shoulder a significant burden. The alternative is to further prove what is likely in any event, that with the instant decision, this Court has undercut Ross so much that this Court's own review will lack an adequate basis when an indigent defendant appears before this Court. The constitutional harbor offered by Ross will have dried up, and I welcome the review that drought will bring.

Finally, then, I could move on from Ross. Done with our journey we could be, the path clearly marked. Yet, I cannot, for with each citation by the majority of the "discretionary" nature of guilty-plea review, I face the grim realization that the Court has chosen to ignore the teachings of our Supreme Court, and instead has tried to pigeon-hole the instant case into either a Douglas or Ross pre-formed box. Because it fits neither exactly, the majority concludes that it is free to decide this case as it chooses. Faced with this steadfast resistance to the language, logic, and authority of Douglas and Ross, I turn to a multitude of other cases, each of which reverberates with warning that the majority has left the designated road.

D. United States v MacCollom: Considerable Assistance

As appellate judges, we do not have the blessing of requesting instructions from superior courts when we do not understand their decisions. Rather, we are left with only the Court's written opinion; and when a point is less than clear, we are left with more in the way of academic debate than clarification from above. A chance for restatement occurs only when the higher court has the opportunity and again feels the need to address a similar area of law. Therefore, those who have misunderstood Ross should be grateful for the opportunity presented the Supreme Court in United States v MacCollom, 426 U.S. 317; 96 S.Ct. 2086; 48 L.Ed.2d 666 (1976).

MacCollom dealt not with a question of the right to counsel, but rather with the right to a transcript. Although that issue might seem, after Griffin and Draper v Washington, well settled, MacCollom dealt with an indigent prisoner seeking a transcript to prepare his petition for habeas corpus relief from a federal conviction. Under normal circumstances, a transcript would probably have been prepared in the course of that defendant's direct appeal, but he had apparently elected to allow his direct appeal rights to expire without taking any action. Thus, no transcript had been prepared.

Because it dealt with a collateral rather than a direct appeal, such a question might seem to have little import for the instant case. Justice Rehnquist, in his lead opinion, began with a review of the Court's decisions in Douglas and Ross. MacCollom was issued just two years after Ross, so it offers a fair barometer of how both the author and several members of the Court understood Ross when it was of recent vintage.

Justice Rehnquist, in his analysis of the equal protection issue, had cause to revisit both Douglas and his opinion in Ross:

In Douglas v California, supra, the Court held that the State must provide counsel for an indigent on his first appeal of right. But in Ross v Moffitt, supra, we declined to extend that holding to a discretionary second appeal from an intermediate appellate court to the Supreme Court of North Carolina. We think the distinction between these two holdings of the Court is of considerable assistance in resolving respondent's equal protection claim. Respondent in this case had an opportunity for direct appeal, and had he chosen to pursue it he would have been furnished a free transcript of the trial proceedings. But having forgone that right, and instead some years later having sought to obtain a free transcript in order to make the best case he could in a proceeding under [28 U.S.C.] § 2255, respondent stands in a different position. [ MacCollom, supra at 324-325.]

Justice Rehnquist, and those joining his opinion, found the distinctions between the acceptable situation in Ross and the unacceptable one of Douglas, when compared to the facts of MacCollom, offered considerable assistance. These same distinctions have come to the fore in the Supreme Court's analysis in subsequent cases, a pattern that offers us guidance, but guidance for which the majority has no use.

E. Evitts v Lucey: Another Lesson in Distinctions

In Evitts v Lucey, 469 U.S. 387; 105 S.Ct. 830; 83 L.Ed.2d 821 (1985), the Court was called on to determine whether the right to assistance of counsel on a first appeal included a right to effective assistance of counsel. An indigent defendant, following conviction, had counsel appointed for his first appeal. Counsel failed to comply with the applicable Kentucky court rules, and the appellate court dismissed the defendant's appeal. The defendant sought habeas corpus relief, claiming the dismissal was unconstitutional because it deprived him of a claimed right to effective assistance of counsel. See id. at 389-391.

The Supreme Court agreed with the defendant. It noted that "[j]ust as a transcript may by rule or custom be a prerequisite to appellate review, the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits." Id. at 393. The essence of the Court's rationale, though referring to a right to effective assistance of counsel, is nonetheless applicable to, and based on an express acknowledgment of, the right to any counsel at all:

In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal defendant must face an adversary proceeding that-like a trial-is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant-like an unrepresented defendant at trial-is unable to protect the vital interests at stake. [ Id. at 396.]

Most importantly, one question confronting the Supreme Court was whether the appeal Kentucky granted was of right or discretionary. The commonwealth argued that the appeal was permitted only if it complied with applicable rules, and thus, under Ross, it was a discretionary appeal. Rejecting that argument, the Court further charted the path taken by our analysis of the Ross "fortifying" rationale:

Unlike the appellant in the discretionary appeal in Ross, a criminal appellant in the Kentucky Court of Appeals typically has not had the benefit of a previously prepared trial transcript, a brief on the merits of the appeal, or a previous written opinion. In addition, petitioners fail to point to any source of Kentucky law indicating that a decision on the merits in an appeal like that of respondent-unlike the discretionary appeal in Ross is contingent on a discretionary finding by the Court of Appeals that the case involves significant public or jurisprudential issues; the purpose of a first appeal in the Kentucky court system appears to be precisely to determine whether the individual defendant has been lawfully convicted. In short, a criminal defendant bringing an appeal to the Kentucky Court of Appeals has not previously had "an adequate opportunity to present his claims fairly in the context of the State's appellate process." It follows that for purposes of analysis under the Due Process Clause, respondent's appeal was an appeal as of right, thus triggering the right to counsel recognized in Douglas v California. [ Id. at 401-402 (citations omitted).]

The Court's final discussion is also worthy of note:

The lesson of our cases, as we pointed out in Ross, is that each Clause triggers a distinct inquiry: "`Due Process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. `Equal Protection,' on the other hand, emphasizes the disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable." In cases like Griffin and Douglas, due process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal Protection concerns were involved because the State treated a class of defendants-indigent ones-differently for purposes of offering them a meaningful appeal. Both of these concerns were implicated in the Griffin and Douglas cases and both Clauses supported the decisions reached by the Court. [ Id. at 405 (citations omitted).]

On the other hand, the dissent in Evitts disagreed with any reliance on the due process clause.

Given the dispute in Evitts, the place of a due process analysis in the instant case is subject to academic disagreement. However, the Court believed a due process analysis was applicable, perhaps because even though the defendant was challenging his conviction, he was in a lesser position than the defendant in Ross, whose "claims had `once been presented by a lawyer and passed upon by an appellate court,'" Ross, supra at 614-615, quoting Douglas, supra at 356, and thus more akin to the defendant in Douglas, in which the Court concluded that due process concerns were present. See 3 LaFave, Israel King, Criminal Procedure (2d ed), § 11.1(b), p 474. Whatever the role of the Due Process Clause, I have no difficulty applying an equal protection analysis to the instant case, and conclude that the system imposed by the majority leaves moneyed defendants with a meaningful appeal, but leaves indigent defendants with a meaningless ritual. The Court' discussion in Evitts, though, suggests that the majority's analysis is infirm under both clauses.

F. Murray v Giarratano: The Path Straightens

By now we have crested the hills on our path, and can see its direction onto the horizon. Yet the wayward majority refuses to pause and seek directions, insisting that it understands Douglas and Ross "in the context in which those cases were decided," slip op at 24, without understanding the context in which the Supreme Court has understood those same cases. To illustrate the majority's error, we continue on with our journey.

In the years following Ross, Chief Justice Rehnquist was called upon to again revisit the essence of the Ross Court's holding. In Murray v Giarratano, 492 U.S. 1; 109 S.Ct. 2765; 106 L.Ed.2d 1 (1989), a case involving a claim by indigent death row inmates for appointed counsel for state postconviction proceedings, Chief Justice Rehnquist wrote:

The Sixth and Fourteenth Amendments to the Constitution assure the right of an indigent defendant to counsel at the trial stage of a criminal proceeding, Gideon v Wainwright, 372 U.S. 335 [ 82 S.Ct. 792; 9 L.Ed.2d 799 (1963),] and an indigent defendant is similarly entitled as a matter of right to counsel for an initial appeal from the judgment and sentence of the trial court. Douglas v California, [ supra]; Griffin v Illinois, [ supra]. But we held in Ross v Moffitt, supra at 610, that the right to counsel at these earlier stages of a criminal procedure did not carry over to a discretionary appeal provided by North Carolina law from the intermediate appellate court to the Supreme Court of North Carolina. [ Murray, supra at 7.]

Two points are apparent. The first is the by-now familiar distinctions between an initial and later appeal that were central to the holding of Ross. Second is that nowhere in this statement is found a limitation that the initial appeal must be "of right" for counsel to be required. Considering the foundations of Ross, and the "fortifying" justifications that have now become central to any discussion of that decision, this appears neither surprising nor inadvertent.

The majority notes, in apparent reference to Murray, that the Supreme Court has not extended the right to counsel, "even in the case of inmates on death row." Ante at 520. Similarly, attempting to imply that its action is commonplace, it notes that other states have moved away from appeals of right in guilty plea cases. Id. at 504, n 3. No authority prevents states from doing so, but with regard to the provision of counsel in such cases, or in the mentioned capital cases, it is imperative to recall that whenever the Court has mentioned Ross, a discussion of the presence of the intermediary appellate step inevitably follows. The presence of counsel on that intermediary step has been the reason the Court has denied counsel in later steps. After the majority's decision, indigent Proposal B defendants will go without counsel on their first appeal to an intermediate appellate court, and the reason the Supreme Court has relied on to deny counsel vanishes from the horizon.

G. Mata and Billotti: Previous Travelers on this Path

For a moment, I will pause in my review of Supreme Court decisions to consider a few more indications that the majority has indeed gone astray. Each of these offers an insight into a particular problem with the majority decision, and the system we will come to know in Michigan.

1. Mata v Egeler

In Mata v Egeler, 383 F. Supp. 1091 (ED Mich, 1974), the United States District Court for the Eastern District of Michigan held that an indigent defendant filing a delayed application for leave to appeal after failing to file a timely appeal as of right was entitled to the appointed appellate counsel. Although the defendant in Mata had pleaded guilty, at that time he was entitled to an appeal of right. Nevertheless, because of his nonnegligent delay in filing such an appeal, he was left with only an appeal by leave to the Michigan Court of Appeals. Thus, the defendant in Mata was in precisely the same situation as the instant defendant.

Mata was decided shortly after the decision in Ross, and the district court showed the benefit of having both that opinion and Douglas available:

It is "invidious discrimination" for the Michigan Court of Appeals to consider the merits of an indigent's first late appeal without benefit of counsel while allowing a rich man to employ counsel. The "relative handicap" Michigan indigents face when applying for leave to appeal is even greater than the handicap petitioners faced in Douglas. There, the California appellate court independently examined the record before concluding that "no good whatever could be served by appointment of counsel." Here, the only person examining the record for possible errors is petitioner — an indigent untrained in law. Furthermore, Mata's appeal is discretionary rather than as of right; if he fails to persuade the Court of Appeals his case has merit, he will not receive his first appeal, as petitioners in Douglas would have. While one can distinguish the principal case from Douglas — the appeal in the principal case is discretionary, whereas in Douglas it was as of right — in the context of the Michigan appellate system, this is a distinction without a difference. Whether the appeal is as of right or discretionary is irrelevant if "indigents are . . . denied meaningful access to that system because of their poverty. Ross v Moffitt. . . ."

The nature of discretionary review in the Michigan Court of Appeals differs substantially from the limited review available to Moffitt in the North Carolina Supreme Court. By statute Michigan gives late filing but non-negligent petitioners a route back to the appellate system. Yet, "meaningful access" to this system is denied indigents: they are forced to travel this route without a vehicle. Unlike Moffitt, Mata has not been assisted by counsel at any stage of appeal. Until an attorney scrutinizes the record and prepares argument for appeal, the Court of Appeals does not have an "adequate basis on which to base its decision to grant or deny review." Although the state procedure does not completely foreclose petitioner from presenting his claims to the Michigan appellate courts, depriving him of counsel at the initial review, simply because of his indigency, will degrade the entire appellate process to a "meaningless ritual." [ Id. at 1093-1094.]

The district court, only a few short months after Ross was issued, follows a track in its opinion paralleling what would emerge in so many later opinions of the United States Supreme Court. That alone makes the opinion of the district judge remarkable for its insight. The majority does not even consider the guidance of Mata, but marches onward to deny counsel to indigent defendants.

2. Billotti v Legursky

No authority suggests that providing only an appeal by leave in guilty plea, or any other, cases would be constitutionally infirm. Indeed, states have discretion to deal with difficult problems of policy. However, authorities do provide that states cannot deny a meaningful appeal to an indigent defendant when it is allowed for a moneyed defendant. The United States Court of Appeals for the Fourth Circuit has suggested that the system set up by the majority today may effectively expose the whole of Proposal B to constitutional difficulty.

In Billotti v Legursky, 975 F.2d 113 (CA 4, 1992), the court reviewed the appellant's claim that the West Virginia system, in which "the Supreme Court of Appeals provides the sole avenue of appellate review from courts of general jurisdiction" was unconstitutional because it denied him an appeal of right. Id. at 115. The decision to grant review was discretionary with the West Virginia court. Id. Even so, the state provided extensive appellate procedural protections:

Nonetheless, the right to petition for appeal to the Supreme Court of Appeals is accompanied by an array of procedural protections. These procedural protections mirror the requirements that the United States Supreme Court has held to be mandatory when a state grants appeal as of right. The right to petition is guaranteed under W VA Const, Art VIII, § 4, and denial of that right renders the conviction void. State v Eden, 163 W. Va. 370; 256 S.E.2d 868, 875 (1979). Indigent criminal defendants are entitled to court-appointed counsel for their petition. Rhodes v Leverette, 160 W. Va. 781; 239 S.E.2d 136, 140 (1977). Accord Douglas v California, 372 U.S. 353; 83 S.Ct. 814; 9 L.Ed.2d 811 (1963). Counsel's performance must meet constitutional standard of effectiveness. State ex rel Bratcher v Cooke, 155 W. Va. 850; 188 S.E.2d 769 (1972). Accord Evitts v Lucey, 469 U.S. 387 (1985). Criminal defendants are entitled to a transcript for appeal. State ex rel Johnson v McKenzie, 159 W. Va. 795; 226 S.E.2d 721, 724 (1976). Accord Griffin v Illinois, 351 U.S. 12; 76 S.Ct. 585; 100 L.Ed. 891 (1956). West Virginia has thus provided Billotti with the same resources for discretionary review that the Supreme Court has held are required in cases involving appeal as of right.

* * *

Petitioner's counsel has also conceded that the relevant procedural safeguards were observed here — Billotti's counsel filed a substantial petition on Billotti's behalf, accompanied by the transcript, and made an oral presentation before all of the justices of the Supreme Court of Appeals. [ Billotti, supra at 115-116.]

The court relied on the presence of these protections to dispose of Billotti's claim:

It is plain that West Virginia has afforded Billotti an adequate opportunity to challenge the alleged errors in his trial. The Fourteenth Amendment does not authorize the federal courts to micromanage state criminal justice systems. In our federal system, the states are allowed to structure their systems of criminal justice as they see fit, as long as their systems satisfy the basic demands of due process. . . . It is enough that they serve the needs of the state which adopted them, and that they afford an ample measure of procedural fairness to criminal defendants seeking an appeal. [ Id. at 116 (citations omitted; emphasis added).]

Thus, although the question is not as well defined as some that are raised by the majority's decision in the instant case, it is arguable that, if review of the constitutionality of a system that offers only appeal by leave is to be decided as the Fourth Circuit believes, the presence or absence of counsel's assistance in the appellate process, whatever that process is called, is a crucial component of the system's constitutionality. Through its decision, the majority has left that component of Michigan's system by the roadside, and invites a challenge not only to the denial of counsel, but to the whole of Proposal B, which Michigan approved.

II

The United States Supreme Court and the lower federal courts have compared the position of appealing defendants to the position of the defendant in Ross when determining whether counsel must be appointed. In cases including MacCollom, Murray, and Pennsylvania v Finley, 481 U.S. 551; 107 S.Ct. 1990; 95 L.Ed.2d 539 (1987), the Supreme Court has denied indigent defendants counsel in second-tier appeals and postconviction proceedings because counsel has been present in first appeals, in accord with Douglas. When counsel has not been present on a first appeal, as in Mata, the courts have appointed counsel. By its decision, the majority denies indigent defendants any counsel at all on appeal. In lieu of an indigent defendant's right to counsel on a first appeal, the majority offers indigent defendants assurances that the trial court proceedings in guilty plea cases will be so simple that the indigent defendants will not need any appellate counsel, and even if they did, their trial counsel will already have acted as appellate counsel. Although distinctions can be drawn between guilty plea and trial cases, when they are offered as a reason to depart from the constitutional mandates in Douglas and Ross, they fail. Similarly, comparing the position of a Proposal B defendant with that of the defendant in Ross finds the former woefully under equipped to have "meaningful access" to our Court of Appeals.

A. The "Simplicity" of Guilty Plea Proceedings

The majority believes that because a defendant has pleaded guilty, guilt is then beyond question and a court does not function to determine whether that is accurate. It then concludes that it can deny counsel because "[t]he distinct character of plea proceedings . . . will `make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right,' from a trial conviction." Ante at 520-521, quoting Ross, supra at 616 (citation omitted). By sandwiching this quotation from Ross between its own modifiers, the majority exemplifies its error, 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. A point that the majority does not choose to quote from Douglas and Ross is that both cases focus on "a correct adjudication of guilt."

First, 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 "adjudication of guilt." As evidenced by our adoption of MCR 6.302, we have long recognized that a mere admission of guilt, even if accompanied by an absolute and all-knowing certainty, is but one component of a "correct adjudication of guilt" under our system.

Further, although the majority notes the claims that are waived by a guilty plea, many others remain appealable, and deal with a "correct adjudication of guilt." Even though he pleads guilty, an indigent defendant can still appeal constitutional defects that are irrelevant to his factual guilt, People v Webb, 89 Mich. App. 50, 54; 279 N.W.2d 573 (1979), double jeopardy claims requiring no further factual record, People v Johnson, 396 Mich. 424, 444; 240 N.W.2d 729 (1976), jurisdictional defects, id., challenges to the sufficiency of the evidence at the preliminary examination, People v Schaffer, 129 Mich. App. 287, 290; 341 N.W.2d 507 (1983), preserved entrapment claims, People v White, 411 Mich. 366, 387; 308 N.W.2d 128 (1981), mental competency claims, People v Parney, 74 Mich. App. 173, 176; 253 N.W.2d 698 (1977), factual basis claims, People v Mitchell, 431 Mich. 744, 748; 432 N.W.2d 715 (1988), claims that the state had no right to proceed in the first place, including claims that a defendant was charged under an inapplicable statute, People v Beckner, 92 Mich. App. 166, 169; 285 N.W.2d 52 (1979), and claims of ineffective assistance of counsel. See People v Haynes (After Remand), 221 Mich. App. 551, 558; 562 N.W.2d 241 (1997); People v Harris, 148 Mich. App. 506, 512; 384 N.W.2d 816 (1986); People v Snyder, 108 Mich. App. 754, 755-756; 310 N.W.2d 868 (1981).

In addition to these claims, our Legislature recently enacted law providing for appeals of sentencing decisions. The statute itself, MCL 769.34(7)-(10); MSA 28.1097 (3.4)(7)-(10), does not address the form of appeal, whether from a trial conviction or a guilty plea conviction. Rather, it evidences the Legislature's intent that both errors in scoring the new legislative guidelines and departures from those guidelines shall be reviewable on appeal, without limiting the review in guilty plea cases.

Despite the matters than can result in error in a guilty-plea case, and the various appellate claims a guilty-pleading defendant can assert, the majority concludes that guilty pleas are so simple, no counsel will ever be necessary for an indigent defendant who wants to appeal. Some plea-based cases may be fairly simple, and appeals from them may be fairly meritless. To apply that presumption wholesale to every plea-based appeal, however, ignores the lessons of the cases our Court of Appeals hears daily.

For example, consider the "simplicity" of the cases discussed below. Although some include variations of the more common claims regarding sentence proportionality, others are considerably more complex, as evidenced in some cases by the Court of Appeals efforts in reaching its conclusions. In each case, defendant pleaded guilty or nolo contendere shortly before Proposal B went into effect, in what would now be a Proposal B case, and in each was represented by appointed counsel. Counsel raised the claims of error described, and garnered the relief described below. Under the Court's decision in the instant case, from now on, a defendant with a similar claim will not be represented by counsel in attempting to raise that claim. Thus, as we proceed through these cases, I am left to wonder how many, if any, of these errors would have come to mind to an attorney reviewing his own efforts, or to an indigent defendant alone after trial court proceedings conclude and he is left with no appellate counsel whatsoever. If either of these were to fail, then in that case there would not be a "correct adjudication of guilt."

First, in People v Hazzard, 206 Mich. App. 658; 522 N.W.2d 910 (1994), the juvenile defendant pleaded guilty to two counts of CSC I and was sentenced as an adult to concurrent prison terms of twenty-two to forty years. Id. at 659. Through appointed counsel, the defendant argued that the trial court failed to comply with MCR 6.931(E)(3), (4), and MCL 769.1(3), (5); MSA 28.1072(3), (5) by failing to make adequate findings concerning whether the juvenile defendant should have been sentenced as an adult. The Court of Appeals reversed defendant's sentences and remanded for further proceedings before a different trial judge. Under the majority opinion, that juvenile defendant would only be represented by trial counsel, and would have to seek relief from the Court of Appeals on his own.

Consider also People v Antolovich, 207 Mich. App. 714; 525 N.W.2d 513 (1994). There, following a guilty plea to delivering less than fifty grams of cocaine, the circuit court sentenced defendant to four to twenty years imprisonment, in excess of the guidelines range, a $25,000 fine, and payment of $1,500 in costs. Id. at 715. Through appointed counsel, the defendant challenged the trial court's authority to impose the sentence. The Court of Appeals vacated the sentences, holding that the court below was without statutory authority to impose costs, that the fine was constitutionally excessive, and that the prison term was not proportionate under People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990). That defendant would now have only trial counsel to represent him in his criminal case.

Similar are several unpublished decisions of the Court of Appeals. In People v Hill, the defendant entered a plea bargain that included a provision that his sentence for marijuana possession would run concurrently with his sentence in another case for possession of marijuana with intent to deliver. The Court of Appeals held that the trial court did not have authority to impose concurrent sentences under MCL 333.7401(3); MSA 14.15(7401)(3), and that the trial court should have allowed the indigent defendant to affirm or withdraw his guilty plea before it resentenced him. Thus, the Court of Appeals remanded to allow the defendant that choice. Next, in People v Perryman, the circuit court initially sentenced the guilty-pleading indigent defendant to concurrent sentences. Without a hearing, the court then signed a judgment of sentence indicating that the sentences were to run consecutively. The Court of Appeals remanded for resentencing because of the lower court's confusion about the statutory requirement for consecutive sentences, given that "it is not certain that the trial court would have imposed the same sentence had it been aware that MCL 333.7401(3); MSA 14.15(7401)(3) mandates consecutive sentences. . . ." In People v Bullock, following the defendant's nolo contendere plea, the circuit court ordered him to pay $108,286.90 in restitution. He was ultimately jailed, in part for failing to pay the restitution. The Court of Appeals held that the lower court failed to consider the factors required by MCL 780.767(1); MSA 28.1287(767)(1) and MCL 780.766(13); MSA 28.1287 (766)(13) before setting the restitution amount. After examining conflicting case law, the Court of Appeals determined that the lower court was required to hold an evidentiary hearing on the defendant's ability to pay, so it vacated the restitution order and remanded. In a final example, the defendant in People v Krieger, who had a history of mental health problems, including bipolar disorder, acute psychosis, and delusions and hallucinations, pleaded nolo contendere to an uttering and publishing charge, after the court denied a motion for psychiatric evaluation. The Court of Appeals reversed and remanded for a psychiatric evaluation to determine the defendant's competence to enter a plea. It noted the presence of a psychiatric report, prepared as a result of a charge pending against the defendant in another county and dated only nine days before the sentencing in question, which found defendant "in dire need of institutional psychiatric care."

These cases are only a few examples of the types of claims and the types of indigent guilty-pleading defendants that are daily before our Court of Appeals. Nonetheless, the majority concludes with ease that the records in these cases, and others like them, would be so short, simple, and routine that the defendants in the cases discussed, and others like them, with no appellate counsel whatsoever, will have no trouble gaining access to our Court of Appeals.

B. Proposal B Indigent Defendants and Ross

In a further attempt to rehabilitate its constitutional departure, the majority suggests that the materials provided by trial counsel under MCR 6.005(H)(4) will somehow prevent an indigent defendant from having the meaningless ritual that Douglas held unconstitutional. I disagree, and offer a careful analysis of each step of this suggestion, an analysis that finds the suggestion unavailing in its attempt to bridge the gap between Douglas and Ross.

Initially, the relevant points from Ross:

The facts show that respondent, in connection with his Mecklenburg County conviction, 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. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had "once been presented by a lawyer and passed upon by an appellate court." 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 by 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. [ Ross, supra at 614-615 (internal citations omitted; emphasis added).]

The Court later referred to these materials in Pennsylvania v Finley, supra, with Chief Justice Rehnquist again offering the approach that he has consistently used in discussing Ross:

Nor was the equal protection guarantee of "meaningful access" violated in this case. By the time respondent presented her application for postconviction relief, she had been represented at trial and in the Supreme Court of Pennsylvania. In Ross, we concluded that the defendant's access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. [ Finley, supra at 557 (citations omitted).]

In discussing Ross, and suggesting that counsel need not be provided for a discretionary appeal, the Court predicated its conclusion not on the simple presence of counsel at some point below, but on several distinct factors. By viewing the highlighted portions of Ross quoted above, it becomes clear that three separate "tools," to use the Finley Court's terms, allowed the Court to conclude that counsel was not necessary on a second-tier discretionary appeal:

At that stage he will have, at the very least, [1] a transcript or other record of trial proceedings, [2] a brief on his behalf in the Court of Appeals setting forth his claims of error, and [3] in many cases an opinion by 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. [ Ross, supra at 615 (internal citations omitted; emphasis added).]

For confirmation, we can merely recall Finley:

In Ross, we concluded that the defendant's access to [1] the trial record and [2] the appellate briefs and [3] opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review. [ Finley, supra at 557 (citations omitted).]

The majority suggests that, if an indigent defendant proceeded pro se, he would have sufficient tools to ensure that his efforts to gain discretionary review on his first appeal would provide meaningful access rather than a meaningless ritual. Accordingly, consider what the instant indigent defendant will not have, and compare his position to the pro se defendant in Ross, the same comparison the Supreme Court has repeated time and again.

1. A Transcript or Other Record of the Trial Proceedings

In a scenario with trial counsel raising a motion under MCR 6.005(H)(4), it does not appear that, as things currently stand, a record would yet have been prepared. Indeed, generally, preparation of the record commences concurrently with the request for appellate counsel and the defendant's assertion of his desire to appeal, something that trial counsel is without authorization in the court rules to do. Trial counsel would, expectedly, have notes of the proceedings. Given that our current scheme for preparing transcripts could be altered to accommodate this situation, I will forgo any substantial discussion of whether counsel's notes alone would amount to an adequate substitute for a record. The remaining factors are more determinative. Notably, however, Douglas and Ross both referred to appellate counsel searching the record for hidden errors and issues. As further discussed below, however, counsel's notes, by definition, would not contain any "hidden" errors or issues. If trial counsel noticed errors, we would expect that these concerns would be raised promptly rather than on appeal. In fact, we would require them to be raised, and prohibit attempts to use them as an "appellate parachute."

2. A Brief on His Behalf in the Court of Appeals Setting Forth His Claims of Error

According to the majority, trial counsel will bring a motion to withdraw the plea under MCR 6.311. Part of this argument is that MCR 6.311(C) requires preservation of issues concerning guilty pleas by means of a motion to withdraw the plea. Thus, as a necessary antecedent to any such issues being raised on appeal, trial counsel will presumably have filed a motion below, identifying and arguing the issue.

Leaving aside this presumption's correctness, for the purposes of this component of the Ross analysis, the motion must be compared to the presence of an existing appellate brief that offers a pro se defendant a springboard from which to launch his own efforts. First, generally, appellate briefs are considerably more in-depth and detailed than briefs to the trial court. The time demands of appellate practice, though strict, are nonetheless often much more inducive to comprehensive briefing than are trial court schedules.

More important, however, is that a great many issues need not be preserved by a MCR 6.311 motion in the trial court to be raised on appeal. Indeed, MCR 6.311(C) itself requires preservation of only certain issues:

Preservation of Issues. A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirement of the rules in this subchapter, or any other claim that the plea was not an understanding, voluntary, or accurate one, unless the defendant has moved to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be raised on appeal.

Thus, only issues dealing with what might be termed the facial validity of the plea require such a motion for their preservation. Many other issues, including a great many of the claims that are not waived by a guilty plea, like jurisdictional defects, double jeopardy claims requiring no further factual record, due process claims, preserved entrapment claims, mental competency claims, claims involving the factual basis of the plea, and claims that the state had no right to proceed in the first instance, might also be raised in plea cases. Although some of these claims, like factual basis challenges, would seem to require preservation, others, like jurisdictional defects and double jeopardy claims, the latter being a particularly complex area of law to a layperson, clearly would not.

Additionally, neither the majority's theory nor MCR 6.311 addresses many other potential claims that might arise in a guilty plea case. Rare indeed would be the instances when trial counsel would suggest that they themselves provided ineffective assistance during the plea proceedings. More frequently, however, sentencing issues arise, whether of the type less frequently granted relief, like claims based on Milbourn, supra, or of the type often granted relief, like illegal sentences, including consecutive sentences imposed without statutory authorization.

It may be suggested, however, that even in the absence of MCR 6.311's requirement that such issues be raised, MCR 6.005(H)(4) mandates such claims being brought by trial counsel, but that is not the case. MCR 6.005(H)(4) provides:

Scope of Trial Lawyer's Responsibilities. The responsibilities of the trial lawyer appointed to represent the defendant include

* * *

(4) unless an appellate lawyer has been appointed, filing of postconviction motions the lawyer deems appropriate, including motions for new trial, for a directed verdict of acquittal, to withdraw the plea, or for resentencing.

Thus, trial counsel may file such motions as "the lawyer deems appropriate." What would be appropriate, however, is something of an open question. The staff comment to this rule offers some insight into the phrase's genesis:

Subrule (H) expands the scope of an appointed trial lawyer's responsibilities set forth in former 6.101(C)(2). The former rule made no reference to an appointed trial attorney's ability to file "postconviction motions the lawyer deems appropriate." Clearly, there are circumstances when it is more appropriate for the trial attorney to seek postconviction relief for his client than to await the appointment of appellate counsel. Under the scheme of the rules, however, a defendant should have only one appointed lawyer representing him at any time, and consequently, the appointment of appellate counsel should act as an end to the responsibilities of the trial attorney under the appointment order.

Until now, under this rule, trial counsel has had the authority to file motions until the appointment of appellate counsel. Under the majority's decision, however, appellate counsel will not be forthcoming. Accordingly, construing the rules in such a fashion that trial counsel would become the only standard-bearer for postconviction motions would entail an extension of the defendant-trial counsel relationship. The traditional end of that relationship was the appointment of appellate counsel, usually following and pursuant to the defendant's execution of the State Court Administrator's Office form given to defendant at sentencing. However, the majority's decision would extend this relationship for a time, matching the time for filing an application for leave to appeal, which is, under MCR 6.311(A), the time when a defendant may file a motion to withdraw a plea. Given the various scenarios possible under MCR 7.205(F) for filing a delayed application for leave to appeal, a defendant-trial counsel relationship could last up to, and in some cases beyond, twelve months following sentencing.

This is not, in and of itself, offered as a reason to reject the MCR 6.005(H)(4) hypothesis under Ross. Rather, this detour is necessary to fully appreciate the magnitude of the disparity between the situation as it currently exists in our trial courts, and the situation as it will be beginning today under the majority's decision.

Likewise, before moving on, our minimum standards for appellate counsel for indigent defendants are instructive. In particular, standard nine states:

Counsel should assert claims of error which are supported by facts of record, which will benefit the defendant if successful, which possess arguable legal merit, and which should be recognizable by a practitioner familiar with criminal law and procedure who engages in diligent legal research. [Administrative Order No. 1981-7.]

Although we have held that failure to raise every claim of arguable legal merit does not amount to ineffective assistance, see People v Reed , 449 Mich. 375; 535 N.W.2d 496 (1995), we have, nonetheless, expected counsel functioning in an appellate role to raise those claims that might arguably have merit. In place of this requirement, under the majority's decision, we have MCR 6.005(H)(4)'s language giving the trial attorney responsibility for filing those motions that "the lawyer deems appropriate." We could, were we to read or add language into the rule beyond its current text, suggest that such an evaluation of appropriateness might involve the same sort of considerations embodied in standard nine above, rather than the sort of considerations implied in the staff comment's discussion. The staff comments suggest that appropriateness entails considerations like delaying filing a motion until the appointment of appellate counsel, and passage of the requisite time for counsel to get up to speed on the issues. Were we to change the rule as discussed, however, several issues would arise.

As an initial matter, we should expect that counsel's notes will not have any errors that might be called "hidden." Indeed, if counsel believed that an error had occurred, we expect and require a contemporaneous objection. Accordingly, the idea that trial counsel will be searching through notes for hidden errors that might evade the pro se indigent defendant is a myth. If any such errors occurred, they remained hidden because trial counsel was unaware of them, and thus did not find the incident noteworthy.

It may be that, if the indigent himself has chosen to file an application for leave to appeal, which is beyond the scope of trial counsel's responsibilities, a transcript may be prepared. If we were to extend the client's relationship with trial counsel well past sentencing, to the outer limits of the time for filing a delayed application for appeal, counsel might have a record to review. Again, though, counsel would be reviewing their own work, and, although something new might occur to them, it might as easily go unnoticed. The more the latter would occur, the greater the potential for an ineffective assistance claim, and yet the slimmer the chances of it being noticed by the pro se defendant or the appellate court.

Finally, the content of the "lawyerly presentation" deserves comment. As noted above, there is not much potential to dispute the suggestion that generally, briefs presented by counsel to the Court of Appeals are considerably more comprehensive than briefs that may, but often need not, accompany trial court motions. Moreover, given that these motions are offered to the trial court, they may well have a distinctly trial court direction. Rather than denigrating the trial court's function, the underlying point of this suggestion is that many factual concerns may be appropriately addressed to the trial court. If such an offering forms the only basis for a claim to an appellate court, however, we would expect the appellate court to defer to the lower court's factual findings. This becomes a particular concern with guidelines scoring issues, when factual decisions often underlie the scoring, and yet, under our new system, the Legislature has mandated the availability of appellate review. Experienced counsel might well primarily attack the findings of fact supporting a score before the trial court, and yet shift focus to any preserved legal challenge on appeal. An indigent defendant with only a trial court presentation in his repertoire, however, will be handicapped by having only one pitch to offer, one well outside the narrowed appellate strike zone.

Thus, the comparison between a defendant with the benefits of an MCR 6.005(H)(4) brief from trial counsel and the Ross pro se defendant, who had an appellate brief on his behalf, is unavailing. Although both might, in some sense, have a lawyer offering some of their claims, the usefulness and applicability of such efforts to appellate access, the key determination to compliance with Ross , is simply lacking. Even more lacking, however, is the next factor.

3. An Opinion by the Court of Appeals Disposing of His Case

The appellate court's decision, though not present in every case, as Ross recognized, nonetheless offers a key tool toward subsequent appellate access. This Court knows this to be true, because a substantial failing of more than a few of the applications to this Court is a failure to address the conclusion of the Court of Appeals. Under MCR 6.005(H)(4), however, two basic components will be absent.

First, though less important, the press of trial court business means that postconviction motions may well have little, if any, opinion offered with that court's decision. Indeed, we see some such motions denied simply by checking a box on a SCAO or local form, with no further explanation. The record may or may not contain some sort of discussion, but in general, even when written opinions are offered, they may not be particularly in depth.

More importantly, however, is what trial court opinions are not. Although such opinions are most likely not appellate opinions in terms of their content, they are certainly not appellate opinions in terms of their authorship. The very same court that is purported to have made the error is ruling on the motion. The motion may address an issue preserved by objection, and thus the court would have already ruled on the alleged error. In other instances the motion may raise a new issue. Every instance, though, will involve an allegation of error by the same court asked to decide whether there was error.

As a matter of first instance, courts may address claims of their own error. A trial court correcting its own errors when it finds merit in a party's contention, however, can hardly be said to amount to an appellate decision. Rather, it is more likely a re-decision of the same point. Consider, for example, motions for reconsideration before this Court. When a party offers nothing new, but simply alleges that the prior decision was incorrect, even for new and expanded reasons, we tend to offer them short shrift. Much the same would occur below. In Proposal B cases, then, rather than a scenario comparable to the constitutionally acceptable situation in Ross, which involved appellate counsel presenting appellate arguments to an appellate court, Michigan will have trial counsel presenting trial-level arguments to the same trial court that is alleged to have made the error, when that court has already decided the issue to its satisfaction in the first instance.

4. MCR 6.005(H)(4) and Ross

As detailed above, the Ross Court relied on three particular antecedents when it denied counsel to a defendant seeking a discretionary appeal after a first appeal where counsel was present. In decisions after Ross, the Supreme Court and lower courts have compared the tools defendants have had to those present in Ross when deciding whether to appoint counsel. If the tools are not comparable to those present in Ross, then the cases have been deemed more comparable to Douglas, and counsel has been appointed. See, e.g., Mata, supra.

The first of these tools was a transcript of the proceedings below. As discussed above, this tool will not be present under the MCR 6.005(H)(4) scenario.

Next, Ross relied on the presence of an appellate brief prepared by appellate counsel for the defendant. Indigent Proposal B defendants, who will have to rely on MCR 6.005(H)(4) under the majority's decision, will have only a trial-level motion, perhaps with a memorandum of law, prepared by trial counsel, offering trial court arguments to the same trial court alleged to have erred. Though the trial court motion is something to point to under MCR 6.005(H)(4), the comparison to Ross is unavailing.

Finally, Ross relied on the presence of an appellate opinion. Ross involved an appellate court, presumably the objective higher level of review, reviewing the arguments, researching the issues, and making conclusions of law on the basis of an objective assessment by those sitting on the panel. Under Ross, before an indigent defendant would be left to seek discretionary appellate review on his own, his case would have been passed on by a higher court wholly removed from the initial decision and, for that matter, one given the benefit of an attorney's presentation on his behalf. That court would have rendered a considered decision, offering to him a neutral assessment of the merits and viability of his claims of error. Under MCR 6.005(H)(4), an indigent defendant gets a trial-level decision, perhaps without any citation or explanation of any applicable authority, by the same judge in whom deficiency was alleged.

When analyzing claims for counsel, the Supreme Court has repeatedly turned to this analysis under Ross. Indigent Proposal B defendants will have nothing comparable to the tools the defendant had in Ross, leaving them to have only a meaningless ritual rather than a meaningful appeal. Further, as explained above, the "simplicity" of guilty plea cases does not mitigate the stark contrast between indigent Proposal B defendants and the defendant in Ross, as indigent Proposal B defendants can bring a variety of complex claims on appeal. The majority acknowledges that an indigent Proposal B defendant's tools "are not equivalent" to those present in Ross, but that acknowledgment is akin to an acknowledgment that the Titanic had some difficulty staying afloat. Under the majority's decision, the instant defendant, and every indigent Proposal B defendant, has nothing like the tools present in Ross. Instead, they have a meaningless ritual.

III

In closing, I cannot dispute that appellate justice, whether for indigents or otherwise, carries an attendant cost in dollars. This, along with a desire to eliminate a backlog of appellate cases in our Court of Appeals, led to the adoption of Proposal B. Further, for many it is easy to disregard indigent defendants' appeals because "[w]e all know that the overwhelming percentage of in forma pauperis appeals are frivolous." Douglas, supra at 358 (Clark, J., dissenting).

None of these considerations, however, provides the slightest justification to deny indigent guilty-pleading defendants their constitutional protections. Appellate counsel has consistently been provided as a basic constitutional protection for those who cannot afford to pay for the services of an attorney. As our Supreme Court stated:

The need for forceful advocacy does not come to an abrupt halt as the legal proceeding moves from the trial to appellate stage. Both stages of the prosecution, although perhaps involving unique legal skills, require careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over. [ Penson, supra at 85.]

To prosecute the appeal, a criminal appellant must face an adversary proceeding that — like a trial — is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant — like an unrepresented defendant at trial — is unable to protect the vital interests at stake. [ Evitts, supra at 396.]

Further, with regard to indigent defendants, I again consult the wisdom of our nation's final arbiter of constitutional protections:

Statistics compiled in the court below illustrate the undeniable fact that as many meritorious criminal cases come before that court through applications for leave to proceed in forma pauperis as on the paid docket, and that no a priori justification can be found for considering them, as a class, to be more frivolous than those in which costs have been paid. Even-handed administration of the criminal law demands that these cases be given no less consideration than others on the courts' dockets. Particularly since litigants in forma pauperis may, in the trial court, have suffered disadvantages in the defense of their cases inherent in their impecunious condition, is appellate review of their cases any less searching than that accorded paid appeals inappropriate. Indigents' appeals from criminal convictions cannot be used as a convenient valve for reducing the pressures of work on the courts. If there are those who insist on pursuing frivolous litigation, the courts are not powerless to dismiss or otherwise discourage it. But if frivolous litigation exists, we are not persuaded that it is concentrated in this narrow, yet vital, area of judicial duty. [ Coppedge v United States, 369 U.S. 438, 449-450; 82 S.Ct. 917; 8 L.Ed.2d 21 (1962) (emphasis added).]

This Court's decision leaves indigent defendants standing in a cloud of dust on the roadside on the way to appellate justice. Defendants who can pay for the services of an attorney will be represented at trial level, will have their cases reviewed by appellate attorneys, and will have lawyerlike presentations to our Court of Appeals. In other words, they will have meaningful appeals. Defendants who cannot pay for an attorney will have trial level representation, and will be left without any appellate representation whatsoever. The only thing more that they will have is the meaningless ritual in our Court of Appeals.

Kelly, J., concurred with Cavanagh, J.

Markman, J., took no part in the decision of this case.