Matter of O'Sullivan
| Decision Date | 02 August 1963 |
| Docket Number | A-6210570,Interim Decision Number 1294 |
| Citation | 10 I&N Dec. 320 |
| Parties | MATTER OF O'SULLIVAN In DEPORTATION Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
Respondent, a native and national of Canada, 58 years old and divorced, was convicted on October 15, 1959 in the Recorder's Court, Detroit, Michigan of addiction to unlawful use of narcotic drugs. She was a nurse at Doctors Hospital in Detroit and used her position to convert the drugs to her own use.1
Subsequently the Service brought these deportation proceedings, which the special inquiry officer originally terminated, distinguishing between illicit possession of narcotics as specified in the order to show cause and unlawful use of narcotics under the statutory provisions in Michigan. The examining officer appealed, contending that the conviction for unlawful use encompassed unlawful possession. We sustained the position of the examining officer in our order of November 20, 1961, which directed deportation on the charge contained in the order to show cause, citing Matter of H---- U----.2
Respondent then commenced an action in the United States District Court, Eastern District of Michigan against the District Director, which was dismissed on March 21, 1962, on stipulation, because of respondent's motion pending before this Board for reopening of the deportation proceedings. We granted oral argument on that motion on February 28, 1962. Counsel for respondent did not appear for oral argument, but submitted a supplementary petition in support of the petition for rehearing.
The supplementary petition called our attention to an order dated March 19, 1962 of the Recorder's Court which granted respondent's motion for a new trial and dismissed the cause on motion of the Assistant Prosecuting Attorney. Counsel for respondent contended, and continues to contend, that such action in the trial court completely removed the basis of the deportation proceedings.
We granted the motion for reopening and reconsideration. Following the reopened hearing the special inquiry officer again terminated the proceedings and certified the case to us for final decision, pursuant to our order.
We now must determine whether the respondent is still deportable under the provisions of section 241(a)(11) of the Immigration and Nationality Act despite the trial court's removal of the conviction upon which the order to show cause is solely based.
The special inquiry officer contends that there is a marked procedural difference between the manner in which respondent's conviction was set aside and the California procedure which the Attorney General had under consideration in Matter of A----F----.3 He states that the action of the trial judge here is a judicial act as opposed to expungement in California, in which the court's action is ministerial, and concludes that the present record of the Recorder's Court must be given full faith and credit.4
Respondent filed her motion in the trial court more than two years after conviction, and apparently after satisfactory completion of probation. Except for alleging that respondent would not have pleaded guilty, and the court would not have accepted such plea, if it had been realized that upon conviction she would be liable to deportation, the motion does not in any way challenge the proceedings in the state court. No prejudicial error is alleged; no newly discovered evidence is offered.
Whatever on this record the requirements of full faith and credit may be, it is evident the action of the trial court may be disregarded, as the Service urges, only if the court exceeded it power under state law, or if its action, regardless of whether proper under state law, is ineffective in the federal proceedings, because of a federal standard based upon overriding national interest. It is also evident that if the action of the trial court is given effect the deportation proceedings no longer have any basis.5
Michigan statutory law provides that the court in which the trial of any indictment shall be had may grant a new trial to the defendant for any cause for which by law a new trial may be granted or when it shall appear to the court that justice has not been done, and on such terms or conditions as the court shall direct.6 Another statutory provision, moderately limiting this authority forbids the granting of a new trial where there has been only harmless error as to any matter of pleading or procedure.7 There is no indication that any such factor is involved here.
Respondent's motion for leave to file a delayed motion for a new trial was directed toward the discretion of the trial court, which has been held to be inherent in Michigan.8 The court record shows only that the motion for new trial was heard and granted and that the cause was dismissed on motion of the Assistant Prosecuting Attorney. The record, does not set forth any basis on which the prosecution entered a nolle prosequi.9
It might be argued that the action of the trial court here was divisible, granting of the new trial being a judicial act and dismissal of the proceedings on the prosecuting attorney's nolle prosequi ministerial. A Michigan statute states, however, that the prosecution must obtain leave of the court of jurisdiction before entering a nolle prosequi. Such provision indicates the court had discretion. Thus the dismissal would also be a judicial act. In any event, we are principally concerned with the effect of the granting of the new trial which, if we are to be bound thereby, in itself effectively removed the conviction for the purposes of these proceedings. Proper granting of a new trial generally vacates the judgment and places the defendant back in the position occupied prior to trial.10 This is the rule in Michigan.11
Respondent moved for a new trial partially to obtain an opportunity to change her plea of guilty.12 The privilege of withdrawing a plea of guilty after sentencing involves setting aside the judgment of the court and is not favored. The Supreme Court of Michigan so ruled in affirming a denial of a motion for leave to withdraw a plea of guilty and for a new trial. The defendant had expected a lighter sentence than the trial court imposed. The court endorsed the view of a California court that, where the defendant knows his rights and the consequences of his act of pleading guilty, the mere fact that he hoped, or believed, or was led by counsel to believe that he would receive a shorter sentence or milder punishment by pleading guilty than after trial and conviction, does not warrant the trial judge's exercise of discretion in favor of permitting the change of plea.13
The same court also affirmed denial of a motion for a new trial based upon refusal of the trial court to allow withdrawal of a plea of guilty before sentencing when, through the sentencing of a codefendant, the defendant has reason to expect a heavier sentence than previously anticipated.14 Michigan law, therefore, indicates that a new trial will not ordinarily be granted when its purpose is to afford an opportunity to change a plea of guilty because the resulting punishment is greater than anticipated. If, therefore the trial judge granted a new trial to respondent merely to enable her to avoid deportation, he would apparently have acted contrary to the way in which he could properly act under the law of his state in an issue confined to punishment lawfully imposed by the court but substantially beyond the defendant's expectation.15
Counsel for respondent relies mainly upon the power of a Michigan trial court judge to act as the judge did here. As authority he cites only Attorney General v. Recorder's Judge, also cited by the special inquiry officer.16
The Service Representative questions the authority of the trial judge under state law to remove the conviction, likening such action to an expungement or pardon. He refers to People v. Fox.17 In Fox the Michigan Supreme Court overruled the particular trial judge who tried respondent. A sentence of life imprisonment for robbery had been partly served when the trial court reduced the sentence. The Supreme Court held that the trial court's jurisdiction had ended with pronouncement of the sentence, and that to permit the power to reduce the sentence under the circumstances would infringe on the pardoning power of the governor and violate the jurisdiction of the parole board. That case did not involve a new trial, however, and is not authority for any such restriction on the power of the trial court when, as here, a new trial has been granted.
The Service Representative also contends that deportation of narcotics offenders is an area in which the Federal Government has the predominant interest, that the trial court acted solely to circumvent the federal statute, and that the court had no jurisdiction over the matter for this purpose.
It is clear that Congress has attempted to circumscribe the power of trial judges to affect deportation proceedings involving narcotic violations.18 Counsel for respondent asserts that Michigan judges would act properly and with restraint where a conflict...
To continue reading
Request your trial