Pleaded guilty or no contest in Michigan? Your appeal rights depend on a motion, a deadline and a record
I am Mitchell Bisson, a Grand Rapids criminal appeals lawyer. I have litigated for over 15 years. This page covers what can be done after a guilty or no contest plea in a Michigan state court: withdrawing the plea, appealing by application for leave, sentence issues, and the record a plea appeal needs. I represent the defendant. When I take a plea case, I start with the plea transcript, the sentencing transcript and the calendar. I do not promise outcomes.
The short answer. In Michigan, an appeal from a conviction based on a guilty or no contest plea is by application for leave to appeal, not by right. MCL 770.3(1)(d); MCR 7.203(A)(1)(b). After sentencing, a motion to withdraw the plea has to be filed, with limited exceptions, within the time for an application for leave to appeal, and after that time the only route in the trial court is the motion for relief from judgment. MCR 6.310(C). In a criminal case that time is the later of 6 months after entry of the judgment or 42 days after certain listed events. MCR 7.205(A)(2). A claim that the plea was not understanding, voluntary or accurate generally has to be raised first in a motion to withdraw the plea in the trial court. MCR 6.310(D). Nothing here predicts how your appeal will end.
Most people who call me about a plea appeal start from the same place: I said guilty, so is it over? It is not always over, but the road is narrower than it is after a trial. A defendant convicted at trial in the circuit court has an appeal of right, and a claim of appeal in a criminal case is due within 42 days after entry of the judgment. MCR 7.204(A)(2)(c). A defendant convicted on a plea does not. All appeals from final orders and judgments based on pleas of guilty or nolo contendere are by application for leave to appeal, and the Court of Appeals has no appeal of right from a circuit court conviction based on a plea. MCL 770.3(1)(d); MCR 7.203(A)(1)(b). The Court of Appeals decides whether to grant the application on the documents filed, with no oral argument. MCR 7.205(E)(1).
The plea hearing sets up everything that follows. Before the court accepts a plea it must be convinced that the plea is “understanding, voluntary, and accurate.” MCR 6.302(A). The judge has to put the defendant under oath, explain the rights given up by not having a trial, and advise that any appeal from the conviction and sentence will be by application for leave and not by right. MCR 6.302(B)(3), (5). If the plea involves a plea agreement, the agreement has to be stated on the record or put in writing and signed by the parties. MCR 6.302(C)(1). Immediately after sentence, the court must tell a defendant who pleaded that he or she may file an application for leave to appeal, that a lawyer will be appointed if he or she cannot afford one, and that the request for a lawyer must be filed within 6 months after entry of the judgment of sentence. MCR 6.425(F)(2). The first thing I read is the transcript of the plea hearing, line by line, against that checklist.
Michigan plea appeal routes, deadlines and rules at a glance
These are the rules in the statutes and court rules. Which of them applies to you depends on the date of your sentence, what happened at the plea, and what has been filed since.
| Claim or issue | What must be shown | Time limit or key rule | Authority |
|---|---|---|---|
| Appeal after a plea | An application for leave to appeal, not a claim of appeal | Plea convictions are appealed by application only; the Court of Appeals decides whether to grant it | MCL 770.3(1)(d); MCR 7.203(A)(1)(b) |
| Application for leave to appeal in a criminal case | An application with the judgment, the register of actions and the plea and sentencing transcripts | Later of 6 months after entry of the judgment or 42 days after listed events, such as an order appointing appellate counsel or an order deciding a timely motion to withdraw the plea; the time limit is jurisdictional | MCR 7.205(A)(2); MCR 7.205(B)(4)(d) |
| Appointed appellate lawyer | An indigent defendant’s request on the approved form | Request filed within 6 months after entry of the judgment of sentence | MCR 6.425(F)(2), (G)(1); Halbert v. Michigan, 545 U.S. 605, 610 (2005) |
| Withdrawing a plea before sentence | Interest of justice, and no substantial prejudice to the prosecutor from reliance on the plea; some situations carry a right to withdraw | After the court accepts the plea on the record and before sentence | MCR 6.310(B) |
| Withdrawing a plea after sentence | A motion in the trial court | Within the time for an application for leave under MCR 7.205(A)(2)(a) and (b)(i)-(iii); after that, only the motion for relief from judgment | MCR 6.310(C) |
| Raising a defect in the plea on appeal | A motion to withdraw the plea in the trial court that raises the same claim | Preservation rule: the claim is not available on appeal without that motion | MCR 6.310(D) |
| Counsel gave bad advice about the plea | Deficient performance, and a reasonable probability that without counsel’s errors the defendant would not have pleaded guilty and would have insisted on going to trial | Facts outside the record usually need an evidentiary hearing in the trial court | Hill v. Lockhart, 474 U.S. 52, 59 (1985); People v. Ginther, 390 Mich. 436, 443 (1973) |
| Scoring of the sentencing guidelines | A challenge raised at sentencing, in a motion for resentencing, or in a motion to remand filed in the Court of Appeals | A motion to correct an invalid sentence is timed like the application for leave | MCR 6.429(B)(3), (C) |
| Michigan Supreme Court | An application for leave after the Court of Appeals decision | 56 days in a criminal case after the Court of Appeals order or opinion resolving the appeal, including an order denying leave | MCR 7.305(C)(2) |
The six-month window is a floor with moving parts. The rule says the application must be filed within the later of the two periods, so a defendant who asks for a lawyer within 6 months and then gets an appointment order or the transcripts may have 42 days from that event. A defendant who relies on the 42-day part has to file a statement, supported by documentation, explaining how the application meets the rule. MCR 7.205(A)(2). I calendar the earliest possible date and confirm any later one from the docket.
Only one application. In a criminal case, a defendant generally may not file an application for leave to appeal from a judgment of conviction and sentence if he or she has already taken an appeal from that judgment by right or leave granted, or has sought leave to appeal and been denied. MCR 7.205(A)(5). The first application has to carry every issue the record supports.
When the appeal was lost through no fault of the defendant. A defendant who was denied appellate review or appointed appellate counsel because of errors by a prior lawyer or the court, or other factors outside the defendant’s control, may file a motion to restore appellate rights. A motion filed within 2 years after the judgment is presumed to be filed within a reasonable time, and one filed within 1 year after a claim of appeal was dismissed is presumed reasonable too. MCR 6.428(A). The trial court looks at the reasons, so I want the facts early.
What a guilty or no contest plea gives up
A plea is not a trial with a different ending. It is a decision to give up a trial, and Michigan law treats it that way on appeal. The Michigan Supreme Court has stated that an unconditional guilty plea that is knowing and intelligent waives claims of error on appeal, even claims of constitutional dimension. People v. Likine, 492 Mich. 367, 409 (2012). In practice, issues about evidence that would have been tested at trial are not the usual subjects of a plea appeal.
A no contest plea is treated the same way for the route of appeal, because the statute covers pleas of guilty or nolo contendere together. MCL 770.3(1)(d). The difference is at the plea hearing: when the plea is nolo contendere the court may not question the defendant about participation in the crime, and must state why the plea is appropriate and hold a hearing that establishes support for a finding of guilt. MCR 6.302(D)(2).
What a plea does not give up is the right to attack the plea itself. The court may not accept a plea unless it is understanding, voluntary and accurate, and a defendant who pleads also gives up any claim that the plea was the result of promises or threats not disclosed to the court at the plea proceeding. MCR 6.302(A), (B)(4). Claims that the plea was defective, that the lawyer’s advice was deficient, or that the sentence is invalid are the claims that survive, and each has its own record requirements.
Withdrawing the plea: three stages, three standards
Before the court accepts the plea. A defendant has a right to withdraw any plea until the court accepts it on the record. MCR 6.310(A).
After acceptance and before sentence. A plea may be withdrawn on the defendant’s motion or with the defendant’s consent only in the interest of justice, and it may not be withdrawn if the withdrawal would substantially prejudice the prosecutor because of reliance on the plea. MCR 6.310(B)(1). Three situations carry an entitlement to withdraw: the plea involves an agreement for a sentence for a specified term or within a specified range and the court states it is unable to follow the agreement; the plea involves a statement by the court that it will sentence to a specified term or within a specified range and the court states it cannot sentence as stated; or a consecutive sentence will be imposed and the defendant was not advised at the plea that the law permits or requires consecutive sentencing. MCR 6.310(B)(2). A defendant who commits misconduct after the plea but before sentencing, such as absconding or failing to appear for sentencing, loses the entitlement to withdraw in the first two situations, unless the trial court allows otherwise for good cause. MCR 6.310(B)(3).
A sentence evaluation from the judge is a separate feature. Under Cobbs, a judge may, at a party’s request, state on the record the sentence that appears appropriate on the information then available. A defendant who pleads in reliance on that preliminary evaluation has an absolute right to withdraw the plea if the judge later determines that the sentence must exceed it. People v. Cobbs, 443 Mich. 276, 283 (1993).
After sentencing. A motion to withdraw the plea may be filed, with limited exceptions, within the time for filing an application for leave to appeal, and after that the only route is subchapter 6.500, the motion for relief from judgment. MCR 6.310(C)(1)-(2). If the trial court finds an error in the plea proceeding that would entitle the defendant to set the plea aside, the court does not simply vacate the plea. It must give the advice or make the inquiries needed to correct the error, and then give the defendant the opportunity to elect to let the plea and sentence stand or to withdraw the plea. MCR 6.310(C)(3). Once an appeal is pending, the defendant may file a motion to withdraw the plea in the trial court within the time for the defendant-appellant’s brief, and the trial court must hear and decide it within 56 days unless it determines that an adjournment is necessary to secure evidence or that there is other good cause. MCR 7.208(B)(1), (3).
The risk of setting the plea aside: the case can go back to the start
If a plea is withdrawn by the defendant or vacated by a trial or appellate court, the case may proceed to trial on any charges that had been brought, or that could have been brought, against the defendant if the plea had not been entered. MCR 6.312. That sentence in the rule is the reason I do not file a plea withdrawal motion without sitting down with you first. A plea to a reduced charge, a dismissed count or an agreed sentence cap can disappear along with the plea. Whether that trade makes sense depends on the evidence, the charge you pleaded to and the charge you could face again, and I explain it before the motion is filed.
Bad advice before the plea
Many plea appeals are, at bottom, claims that the lawyer gave bad advice. The test is the two-part test from Strickland: the defendant must show that counsel’s performance was deficient, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). In a plea case the prejudice part is stated differently. The defendant must show a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In Michigan, the defendant must also overcome the strong presumption that counsel’s performance was born from a sound trial strategy. People v. Trakhtenberg, 493 Mich. 38, 52 (2012).
Advice on immigration consequences is one example. The Supreme Court held that counsel must inform a client whether the plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. 356, 374 (2010). In a claim like that, what the lawyer said and why the defendant took the plea are not in the plea transcript.
That gap is why a plea appeal with an advice claim usually needs a hearing. When a claim depends on facts not of record, the Michigan Supreme Court has said that it is incumbent on the defendant to make a testimonial record at the trial court level. People v. Ginther, 390 Mich. 436, 443 (1973). In an appeal that is already pending, a defendant can ask the Court of Appeals to remand for that purpose, supported by an affidavit or offer of proof, or can file a motion in the trial court within the time for the appellant’s brief. MCR 7.211(C)(1)(a); MCR 7.208(B). I talk to you, read the trial lawyer’s file where I can get it, and decide what the affidavit must say before any motion is filed.
Sentence issues after a plea
A plea does not close the door on the sentence. When the court imposes a minimum sentence longer or more severe than the guidelines range, it must advise the defendant on the record and in writing that he or she may seek appellate review on that ground, by application if the conviction was entered by plea. MCR 6.425(F)(5). The review standard is not the old one. The Michigan Supreme Court held in Lockridge that a guidelines minimum sentence range calculated in violation of the Sixth Amendment line of cases is advisory only and that sentences that depart from it are reviewed by appellate courts for reasonableness. People v. Lockridge, 498 Mich. 358 (2015). In Posey the Court dealt with a sentence within the guidelines range and directed the Court of Appeals to apply a nonbinding rebuttable presumption of proportionality. People v. Posey, 512 Mich. 317 (2023).
Preservation still controls scoring. A party may not raise on appeal a challenge to the scoring of the guidelines, or to the accuracy of information relied on in sentencing, for a sentence within the appropriate range unless the issue was raised at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the Court of Appeals. MCR 6.429(C).
A lawyer for the appeal
A defendant who cannot afford a lawyer and requests one on time is entitled to appointed counsel on a plea appeal. The Supreme Court held that the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals. Halbert v. Michigan, 545 U.S. 605, 610 (2005). The rule implements that by a request for counsel on the approved form, which the court must give the defendant at sentencing. MCR 6.425(F)(3), (G)(1).
How I handle a Michigan plea appeal
- Get the record and fix the dates. I start with the judgment of sentence, the register of actions, the plea agreement and any advice-of-rights form. I find the sentencing date, any order on a request for counsel and any postjudgment motion, and I calendar every date under MCR 7.205(A)(2).
- Read the plea transcript against the rule. I check each item in MCR 6.302: the charge, the maximum sentence, the rights given up, the plea agreement terms, the questions about promises and threats, and the factual basis or the nolo contendere hearing.
- Read the sentencing transcript. I look at the guidelines scoring, the presentence report challenges that were or were not made, the advice the court gave about appeal, and whether a sentence evaluation was part of the plea.
- Talk to you about what happened. I ask why you took the plea, what your lawyer told you, and what you were told about the sentence and any collateral consequences. If a claim depends on those facts, I explain what an evidentiary hearing would require.
- Decide with you whether to move to withdraw. I go through MCR 6.312 and what could be charged again before any motion is filed, because setting a plea aside can reopen the original charges.
- File in the right place, on time. That may be a motion in the trial court, an application for leave to the Court of Appeals, a motion to remand, or a motion to correct the sentence. I file one clean application with every issue the record supports.
- After the ruling. I explain the order, tell you whether further review makes sense, and calendar the 56-day period for the Michigan Supreme Court under MCR 7.305(C)(2).
Ways a plea appeal may end without a ruling on the plea
These depend on the record and on the other side, and none is automatic.
Correction of the sentence in the trial court. The court may correct an invalid sentence on motion by either party or on its own initiative. When it acts on its own initiative, it must give the parties at least 14 days’ notice and an opportunity to be heard, and the correction must be made within 6 months of the entry of the judgment of conviction and sentence. MCR 6.429(A). That can resolve a sentencing issue without a ruling by the Court of Appeals.
Withdrawal of the plea and a new plea or trial. If the trial court allows withdrawal, the case may proceed to trial on the charges that were or could have been brought, and a new plea agreement is also possible. MCR 6.312.
What I need from you
Bring the judgment of sentence, the plea agreement and any form you signed at the plea, and every document the court gave you at sentencing, including the request for counsel form. Bring the names of every lawyer who represented you and the dates, the presentence report if you have it, and any transcripts. Write down what your lawyer told you before the plea about the sentence, the evidence and any consequences beyond the sentence, and tell me whether anyone advised you about immigration consequences if that matters in your case. Tell me whether you are on probation, parole or bond, and where you are confined. Do not wait for the transcripts before you call, because the deadline may run from the date you were sentenced. Do not file anything on your own without talking to me first, because a filing can change the dates.
Where your Kent County plea appeal will be heard
I represent clients in Grand Rapids, Kentwood, Grandville, Wyoming and across Kent County. In Kent County the circuit court is the Kent County Circuit Court, the 17th Judicial Circuit. A plea conviction entered in the circuit court is appealed to the Michigan Court of Appeals by application for leave to appeal. MCL 770.3(1)(d); MCR 7.203(A)(1)(b). Kent County district courts include the 61st District Court in Grand Rapids, the 59th in Walker and Grandville, the 62A in Wyoming, the 62B in Kentwood and the 63rd for Rockford, Lowell, Cedar Springs, East Grand Rapids and the surrounding townships. I confirm at the consultation which court holds your file and where your application belongs.
Why people hire me for a Michigan plea appeal
You work directly with me, the lawyer handling your appeal. I give you the strengths and weaknesses straight, including the deadline, what the plea record supports, what I would need to prove with a hearing, and what withdrawing a plea can reopen. I read the record before I advise you, and then we decide together how to proceed.
Fees for a plea appeal depend on the length of the record, the number of issues and whether a hearing in the trial court is needed first. I explain my fee arrangement at the consultation, before you decide whether to hire me.
Questions I hear from people considering an appeal after a plea
Can I withdraw a guilty plea in Michigan after it is entered?
It depends on timing. Before the court accepts the plea on the record, you have a right to withdraw it. After acceptance but before sentencing, MCR 6.310(B)(1) allows withdrawal only in the interest of justice, and not if it would substantially prejudice the prosecutor, except in the situations in MCR 6.310(B)(2) where withdrawal is a right. After sentencing, a motion must be filed within the time for an application for leave to appeal, generally 6 months after entry of the judgment of sentence.
What is a Cobbs evaluation, and can I withdraw my plea if the judge exceeds it?
Under People v Cobbs, at a party’s request a judge may state on the record the sentence that appears appropriate based on the information then available. If you plead guilty or no contest in reliance on that preliminary evaluation and the judge later decides the sentence must exceed it, you have an absolute right to withdraw the plea. The evaluation does not bind the judge’s sentencing discretion.
Can I appeal my sentence in Michigan, and how do appellate courts review it?
Yes. Michigan’s sentencing guidelines are advisory under People v Lockridge, and in People v Posey the Michigan Supreme Court severed the part of MCL 769.34(10) that required affirmance of within-guidelines sentences, so every sentence is reviewed for reasonableness (proportionality), with a nonbinding rebuttable presumption that a within-guidelines sentence is proportionate. A sentence appeal follows the path for the conviction: by right after trial, by leave after a plea.
Can I still ask the trial judge for a new trial or to correct my sentence after filing a claim of appeal in Michigan?
In a criminal case, yes, within limits; in a civil case, generally no once the claim of appeal is filed. MCR 7.208(B)(1) lets the defendant file in the trial court a motion for a new trial, for judgment of acquittal, to withdraw a plea, or to correct an invalid sentence within the time for filing the defendant’s appellant brief. The trial court must hear and decide the motion within 56 days of filing, unless it finds an adjournment is necessary or there is other good cause.
Can I get a lawyer appointed for my criminal appeal in Michigan if I cannot afford one?
Yes, if you are found indigent and request counsel on time. After a conviction following trial, the request must be filed within 42 days after entry of the judgment of sentence to appeal by right. After a plea, the request must be filed within 6 months after entry of the judgment of sentence. MCR 6.425(F) requires the court to advise you of these rights and give you a request-for-counsel form.
What is a Ginther hearing in a Michigan criminal appeal?
A Ginther hearing is an evidentiary hearing in the trial court, named for People v Ginther, where facts outside the trial record are developed, most often to support a claim that trial counsel was ineffective. The Michigan Supreme Court said a defendant who wants to advance claims that depend on matters not of record can be required to seek an evidentiary hearing at the trial court level.
My Michigan claim of appeal was dismissed for lack of jurisdiction. Can I still ask for leave to appeal?
Possibly. MCR 7.205(A)(4)(b) allows a delayed application for leave within 21 days of the dismissal order, or of an order denying reconsideration of that order. It must be taken from the same lower court judgment or order as the claim of appeal, the claim of appeal must have been filed within the applicable appeal period, and the application must explain the reasons for delay.
What is a motion for relief from judgment under MCR 6.500 in Michigan?
A motion under MCR 6.502 is the post-appeal procedure for challenging a Michigan circuit court conviction or sentence that is no longer subject to review under the court rules for the Court of Appeals or Supreme Court. It is filed in the court that convicted you, substantially in the form approved by the State Court Administrative Office, with a verification, and it must state all grounds for relief that are available.
Related Michigan pages
- Michigan appeals lawyer
- Criminal appeals
- Post-conviction relief
- Standards of review and preserving issues
- Pleas and plea deals
I handle appeals after a guilty or no contest plea in Michigan state court. Contact me 24/7 by phone or email. Your Rights, My Fight! Call for a free initial consultation.
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Law Offices of Mitchell S. Bisson, 2828 Kraft Ave SE, Suite 295, Grand Rapids, MI 49512, serving Kent County and West Michigan.
This page provides general information about Michigan law and is not legal advice. Reading it does not create an attorney-client relationship. Laws change and every case turns on its own facts. Consult a licensed attorney about your specific situation.