People v. Davidovich
| Decision Date | 23 February 2000 |
| Docket Number | Docket No. 211144. |
| Citation | 606 N.W.2d 387,238 Mich. App. 422 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tuvia DAVIDOVICH, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
606 N.W.2d 387
238 Mich. App. 422
v.
Tuvia DAVIDOVICH, Defendant-Appellee
Docket No. 211144.
Court of Appeals of Michigan.
Submitted August 11, 1999, at Detroit.
Decided November 5, 1999, at 9:15 a.m.
Released for Publication February 23, 2000.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney,
Mogill, Posner & Cohen (by Kenneth M. Mogill), Detroit, for the defendant.
Before: HOEKSTRA, P.J., and O'CONNELL and R.J. DANHOF 1, JJ.
HOEKSTRA, P.J.
The prosecution appeals the trial court's order allowing defendant, a resident alien, to withdraw his guilty plea after he learned that his conviction made him subject to deportation under federal immigration laws.2 Because the immigration consequences of a guilty plea are collateral, we find that the trial court abused its discretion in allowing defendant to withdraw his plea.
I
After being charged with possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(d)(iii); MSA 14.15(7401)(2)(d)(iii), defendant pleaded guilty, and the trial court sentenced him to probation for one year. A few months later, defendant filed a "delayed motion for a new trial," claiming that his defense counsel never advised him that his plea could affect his immigration status. Although not labeled as such, the parties treat defendant's motion as a motion to withdraw a plea after sentencing under MCR 6.311(A).3 Defendant argued that his counsel was ineffective and, consequently, that the guilty plea was unknowing and involuntary. The prosecution objected to defendant's motion, arguing that defense counsel's failure to warn defendant about the immigration consequences of his plea did not render the plea unknowing and involuntary. The trial court eventually granted defendant's motion, stating only that "equity will dictate that ... this gentleman [be allowed] to withdraw his plea."
II
We granted the prosecution's application for leave to appeal to consider whether defense counsel's failure to properly advise defendant of the potential immigration consequences of the plea denied him effective assistance of counsel.
Generally, it is well established that there is no absolute right to withdraw a plea once the trial court has accepted it. People v. Haynes, 221 Mich.App. 551, 558, 562 N.W.2d 241 (1997); People v. Eloby (After Remand), 215 Mich.App. 472, 474-475, 547 N.W.2d 48 (1996). If a defendant moves to withdraw a plea after sentencing, the decision whether to grant the motion falls within the trial court's discretion. Haynes, supra; Eloby, supra. We will
Michigan has little case law addressing the more specific question whether a defendant can withdraw his plea because his counsel failed to warn him of the potential immigration consequences of the plea. An earlier opinion from this Court, People v. Kadadu, 169 Mich.App. 278, 281, 425 N.W.2d 784 (1988), places this determination within the trial court's discretion. In Kadadu, the defendant alleged that his counsel failed to advise him he could be deported because of his plea-based conviction. Mindful of severe hardship that can often attend deportation, the Kadadu panel found that the trial court had not abused its discretion in allowing the defendant to withdraw his guilty plea. As we will yet discuss, we believe this reasoning is flawed, because the proper inquiry should keep in mind the virtue of finality and focus on the collateral nature of deportation.
Indeed, our Supreme Court's recent decision in People v. Osaghae, 460 Mich. 529, 596 N.W.2d 911 (1999), although not squarely on point, suggests that the trial court's discretion on this particular question is not quite as unfettered as described in Kadadu. In Osaghae, id. at 533, 596 N.W.2d 911, the...
To continue reading
Request your trial
-
People v. Kabre
... ... 756, 571 N.E.2d 736 [1991]; State v. Ramirez, 636 N.W.2d 740 [Iowa S.Ct. 2001]; State v. Muriithi, 273 Kan. 952, 46 P.3d 1145 [2002]; Commonwealth v. Fuartado, 170 S.W.3d 384 [Ken. S.Ct. 2005]; State v. Montalban, 810 So.2d 1106 [Louisiana S.Ct. 2002]; People v. Davidovich, 238 Mich.App. 422, 606 N.W.2d 387 [1999] aff'd 463 Mich. 446, 618 N.W.2d 579 [2000]; Alanis v. State, 583 N.W.2d 573 [Minn. S.Ct. 1998]; State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 [2002]; Barajas v. State, 115 Nev. 440, 991 P.2d 474 [1999]; State v. Dalman, 520 N.W.2d 860 [N. Dak ... ...
- People v. Davidovich
-
People v. Fonville.
... ... 76 The failure to inform a pleading defendant that the plea will necessarily require registration as a sex offender affects whether the plea was knowingly made. In reaching our conclusion in this case, we recognize that this Court held in People v. Davidovich that the possibility that a defendant would be deported was a collateral, rather than a direct, consequence of his sentence. 77 However, that holding does not directly bear on this case because that case was limited to its facts. And although the Padilla holding directly contradicts the ... ...
-
State v. Ramirez, 00-0393.
... ... People v. Pozo, 746 P.2d 523, 526 (Colo. 1987) (holding counsel must investigate relevant immigration law when counsel is aware defendant is an alien) ... The Michigan Court of Appeals in People v. Davidovich, 238 Mich.App. 422, 606 N.W.2d 387 (1999), aff'd, 463 Mich. 446, 618 N.W.2d 579 (2000), discussed the issue of ineffective assistance of counsel and ... ...