Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  September 25, 2013                                                                                   Robert P. Young, Jr.,
                                                                                                                 Chief Justice

                                                                                                       Michael F. Cavanagh
                                                                                                       Stephen J. Markman
  147033                                                                                                   Mary Beth Kelly
                                                                                                            Brian K. Zahra
                                                                                                    Bridget M. McCormack
                                                                                                          David F. Viviano,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                                    Justices
            Plaintiff-Appellee,
  v                                                                 SC: 147033
                                                                    COA: 308775
                                                                    Tuscola CC: 11-012121-FH
  NATHAN LLOYD HEMINGWAY,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the March 12, 2013
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we REMAND this case to the Tuscola Circuit Court for
  an evidentiary hearing, pursuant to People v Ginther, 390 Mich 436 (1973), as to the
  defendant’s new claim of ineffective assistance of counsel, which is premised on his first
  trial counsel’s alleged conflict of interest. The circuit court shall, in accordance with
  Administrative Order 2003-03, determine whether the defendant is indigent and, if so,
  appoint counsel to represent the defendant at the evidentiary hearing. As this Court
  explained in its order denying leave to appeal in People v Davenport, 483 Mich 906
  (2009), a presumption of prejudice exists when a defendant’s former defense counsel
  joins the prosecutor’s office that is pursuing the case against the defendant. MRPC
  1.9(b), 1.10(b). Such a presumption may be overcome, however, if the prosecutor shows
  that the attorney who had a conflict of interest was properly “screened from any
  participation in the matter . . . .” MRPC 1.10(b)(1). The circuit court on remand shall
  determine when the defendant’s former counsel’s employment with the Tuscola County
  Prosecutor’s office began and whether the prosecution rebutted the presumption of
  prejudice by showing that the former defense counsel was properly screened from any
  participation in the matter. In all other respects, leave to appeal is DENIED, because we
  are not persuaded that the remaining questions presented should be reviewed by this
  Court.

        We do not retain jurisdiction.




                           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.
                           September 25, 2013
           s0918
                                                                               Clerk
