Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  March 25, 2015                                                                                       Robert P. Young, Jr.,
                                                                                                                 Chief Justice

  149299 & (18)                                                                                        Stephen J. Markman
                                                                                                           Mary Beth Kelly
                                                                                                            Brian K. Zahra
                                                                                                    Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                                        David F. Viviano
            Plaintiff-Appellee,                                                                       Richard H. Bernstein,
                                                                                                                      Justices
  v                                                                 SC: 149299
                                                                    COA: 320827
                                                                    Calhoun CC: 10-002810-FC
  SAM DANIEL SANDERS,
           Defendant-Appellant.

  _________________________________________/

          By order of November 25, 2014, the Calhoun Circuit Court was directed to submit
  to the Court and the parties a copy of the transcript of the October 18, 2013 evidentiary
  hearing, and the prosecuting attorney was directed to answer the application for leave to
  appeal the April 2, 2014 order of the Court of Appeals. On order of the Court, the
  transcript and the answer having been received, the application for leave to appeal is
  again considered. We caution the Calhoun Circuit Court that when expansion of the
  record is necessary to resolve a defendant’s motion for relief from judgment under
  MCR Subchapter 6.500, it can only do so within the constraints set out in MCR 6.507(A).
  Pursuant to MCR 6.507(A), a trial court “may direct the parties to expand the record by
  including any additional materials it deems relevant to the decision on the merits of the
  motion. The expanded record may include letters, affidavits, documents, exhibits, and
  answers under oath to interrogatories propounded by the court.” In this case, the circuit
  court did not direct the parties to expand the record, but rather acted sua sponte to
  conduct an evidentiary hearing at which the defendant’s trial counsel was questioned
  directly by the court regarding certain actions taken while representing the defendant at
  trial. The defendant appeared for the evidentiary hearing, but was not represented by
  counsel. The prosecution confirms that both it and the defendant were merely observers
  at this hearing. When the circuit court determines that an evidentiary hearing is required
  to resolve an issue, as occurred here, it must comply with MCR 6.508(C), and it must
  appoint counsel for an indigent defendant, as required by MCR 6.505(A).
  Notwithstanding this procedural error, leave to appeal is DENIED, because the defendant
  has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).




                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           March 25, 2015
         p0318
                                                                               Clerk
