People v. Zak

PER CURIAM

Before: SERVITTO, P.J., and MARKEY and K. F. KELLY, JJ. PER CURIAM.

Defendant appeals by leave granted the trial court's denial of his motion to set aside his guilty plea. Defendant was convicted, by guilty plea, of possession of a controlled substance, MCL 333.7403(2)(b)(ii), and possession of marihuana, MCL 333.7403(2)(d). He was sentenced to two years probation on each count. We remand to the trial court for further proceedings as set forth below.

Defendant is a 21-year old citizen of Jordan and during the trial court proceedings was residing with his family in the United States. After pleading guilty as charged in the instant matter, defendant was placed on probation pursuant to MCL 333.7411. Defendant violated his probation on two occasions and, on each occasion, plead guilty to the violations. His plea on the second violation led to the revocation of his probation. At some point after he entered his guilty plea to the original charges, deportation proceedings were initiated against defendant. On May 5, 2010, defendant moved to set aside his plea of guilty to the original charges based upon his counsel's failure to advise him that his plea could subject him to deportation proceedings. According to defendant, the recent decision of Padilla v Kentucky, ___ US ___; 130 S Ct 1473; 176 L Ed 2d 284 (2010), in which the United States Supreme Court held that a defense counsel's failure to advise his client that his guilty plea made him subject to automatic deportation amounted to ineffective assistance of counsel, was retroactively applicable to defendant's case. As such, defendant argued he must be allowed to withdraw his plea. The trial court denied defendant's motion, for reasons discussed below. This Court granted leave to appeal the trial court's decision.

We review the trial court's decision concerning a motion to withdraw a guilty plea for an abuse of discretion. People v Adkins, 272 Mich App 37, 38; 724 NW2d 710 (2006). The retroactivity of a court's ruling presents an issue of law that this Court reviews de novo. People v Maxson, 482 Mich 385, 387; 759 NW2d 817 (2008).

On appeal, defendant contends that the trial court abused its discretion in denying his motion to set aside his guilty plea where counsel failed to advise him of the immigration consequences of his plea. Defendant specifically argues that counsel's failure to advise him on this issue rendered him ineffective, as indicated in Padilla v Kentucky, and that the retroactive application of Padilla requires that he be allowed to withdraw his guilty plea.

The trial court explained the basis of its ruling by referring to pages four and five of the prosecutor's brief in response to defendant's motion. As factual support for the prosecution's argument to the trial court, the prosecutor's brief recited information that was purportedly obtained in a conversation with defendant's original attorney, Mr. Chiappelli. Thus, the trial court resolved defendant's motion, which was properly supported by an affidavit, by discrediting that affidavit in favor of unsupported factual assertions made in a brief. Counsel's representations of fact in a brief, however, are not a substitute for evidence. At a minimum, before resolving a factual issue such as what advice Chiappelli provided before defendant entered his plea, the trial court should have held an evidentiary hearing. Its failure to do so, and instead its reliance on unsupported factual assertions as a basis for denying the motion, was an abuse of discretion. We therefore remand this matter to the trial court for an evidentiary/Gintherhearing to determine whether trial counsel did, in fact, provide any advice to defendant regarding the possible immigration consequences of a plea.

We note that neither the prosecutor nor the trial court addressed defendant's claim below that Padilla applied retroactively. The prosecutor instead proceeded under the assumption that retroactivity was a foregone conclusion, electing to challenge this issue for the first time on appeal. There has been, however, no authority in Michigan, as yet, resolving the matter of retroactivity. Thus, if the trial court determines at the conclusion of the evidentiary hearing that defense counsel did not provide advice to defendant regarding the possible immigration consequences of his plea, it must also determine whether Padilla is implicated.

Reversed and remanded. We retain jurisdiction and direct the trial court to conduct the evidentiary hearing, make all necessary determinations, and provide all transcripts and orders regarding the same to this Court within 91 days as set forth in the accompanying order.

Deborah A. Servitto

Jane E. Markey

Kirsten Frank Kelly