People v. Kadadu

• Decision Date: 18 July 1988
• Docket Number: Docket No. 104330
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joul Said KADADU, Defendant-Appellee. 169 Mich.App. 278, 425 N.W.2d 784
• Court: Court of Appeal of Michigan — District of US

Page 784

425 N.W.2d 784

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Joul Said KADADU, Defendant-Appellee.

Docket No. 104330.

169 Mich.App. 278, 425 N.W.2d 784

Court of Appeals of Michigan.

Submitted April 14, 1988.

Decided June 7, 1988.

Released for Publication July 18, 1988.

[169 MICHAPP 279] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief, Appellate Div., and Alan J. Saoud, Asst. Pros. Atty., for the People.

Belzer & Barkey, P.C. by F. Jack Belzer, Flint, for defendant-appellee.

Before BEASLEY, P.J., and HOOD and TAHVONEN, ^* JJ.

HOOD, Judge.

The people appeal by leave granted from the order of the trial court granting defendant's motion to withdraw his guilty plea on the ground that he did not know when he pled guilty that, because of his conviction, he would be deported to Israel.

On May 11, 1983, defendant was admitted to the United States as an immigrant from Israel. Defendant has never applied for United States citizenship. In April, 1984, at age twenty-three, defendant was charged with delivery of cocaine. On October 17, 1984, defendant pled guilty to delivery of less than fifty grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). In exchange, three charges of trafficking cocaine were dropped. On June 19, 1985, defendant was sentenced to five years probation.

On March 12, 1987, a deportation hearing was held in Detroit, and defendant was ordered deported[169 MICHAPP 280] to Israel pursuant to 8 U.S.C. Sec. 1251(a)(11) because of his conviction. Defendant was ordered to report for deportation on June 30, 1987, but was later granted a stay pending the outcome of this case.

On June 9, 1987, defendant filed a motion to withdraw his guilty plea. In the motion, defendant set forth many reasons why he felt he should be able to withdraw his plea. He alleged that at the time he was arrested he had just arrived in the United States and had become associated with the wrong crowd. He alleged that the amount of cocaine involved was small and that he had repented. He alleged that deportation would be excessive punishment. In an affidavit accompanying his petition, defendant stated that before he pled guilty, his defense counsel cautioned him that a conviction could affect his status as a permanent resident under the United States Immigration and Nationality Act, but that he did not know that he was actually subject to being deported until deportation proceedings were begun against him. He stated that, had he known about deportation, he would not have pled guilty and that, thus, he pled without fully understanding the plea's consequences. He also stated that at the time he "was conversant only to a limited extent with the English language."

The motion was heard on September 8, 1987. Counsel for defendant noted that defendant was now married and had a child and that deportation would be excessive punishment. The prosecutor argued that the court had complied with MCR 6.101(F) at the guilty plea hearing and that that rule did not say that an alien must be told of deportation. The prosecutor stated that should the court grant the petition, his office would immediately[169 MICHAPP 281] proceed to trial, so defendant would gain nothing except a little time.

On September 14, 1987, the court rendered its decision. The court stated:

"But, I guess Mr. Kadadu feels that he hasn't had his day in court, hasn't had a trial; his conviction was by a plea, and he would like to have the matter tried.

"So, under the circumstances, I'm inclined to give him that opportunity if that's what he really wants, set aside the plea and have the prosecutor prove his guilt if they're able to.

"So I'm going to set it aside and order a new trial date...."

Where a defendant seeks to set aside a guilty plea following conviction and sentencing, his motion is addressed to the discretion of the trial court, which must make a determination as to whether the defendant has shown that his prior guilty plea conviction was a miscarriage of justice. People v. Lippert, 79 Mich.App. 730, 735, 263 N.W.2d 268 (1977), lv. den. 404 Mich. 805 (1978) (citing People v. Winegar, 380 Mich. 719, 158 N.W.2d 395 [1968] ). Appellate relief is granted if the record demonstrates an abuse of discretion. People v. Watson, 22 Mich.App. 703, 705-706, 177 N.W.2d 671, lv. den. 383 Mich. 788 (1970).

The statute under which defendant is to be deported is 8 U.S.C. Sec. 1251(a)(11), which states:

"Any alien in the United States shall, upon the order of the Attorney General, be deported who--

* * *

"(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of, or a conspiracy[169 MICHAPP 282] to violate, any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ..."

Whether a defendant should be able to withdraw his guilty plea on the ground that he did not know he would be deported is a case of first impression in Michigan. Although there are no Michigan cases on point, the federal Courts of Appeal and several states have addressed this issue. The early federal court decisions have uniformly denied relief. See United States v. Parrino, 212 F.2d 919 (CA 2, 1954), cert. den. 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954); United States v. Sambro, 147 U.S.App.D.C. 75, 454 F.2d 918 (1971); United States v. Santelises, 476 F.2d 787 (CA 2, 1973); Michel v. United States, 507 F.2d 461, 464-66 (CA 2, 1974); Nunez Cordero v. United States, 533 F.2d 723 (CA 1, 1976). The first federal case allowing a defendant relief was United States v. Russell, 222 U.S.App.D.C. 313, 686 F.2d 35 (1982). In Russell, the court set forth three factors to guide district courts in their determination of whether defendants should be allowed to withdraw their guilty pleas:

"In summary, it is possible to identify several considerations that should guide district court exercise of discretion under Rule 32(d). The first is the strength of the defendant's reason for withdrawing the plea, including whether the defendant asserts his innocence of the charge.... The second is the possible existence of prejudice to the government's case as a result of the defendant's untimely request to stand trial.... Finally, the trial court must consider whether the defendant's misunderstanding of the collateral consequences of the plea is the result of misleading statements by governmental authorities or the defendant's own ignorance." Russell, supra, 686 F.2d 39.

[169 MICHAPP 283] The court noted how a remand would be appropriate for the district court to apply the factors. Id., p. 40. However, in lieu of remanding, the court reversed because the record revealed that the prosecutor had misinformed the defendant that the plea would not subject him to deportation. Id., p. 41.

In later federal cases, the defendants alleged ineffective assistance of counsel for their counsels' failure to tell them about deportation consequences of their pleas. See United States v. Gavilan, 761 F.2d 226 (CA 5, 1985); Downs-Morgan v. United States, 765 F.2d 1534 (CA 11, 1985); United States v. Campbell, 778 F.2d 764 (CA 11, 1985). Although the Courts of Appeal affirmed the district courts' denials of the defendants' motions in Gavilan and Campbell, the courts did so only because the defendants had not made a sufficient showing of ineffective assistance of counsel. Gavilan, supra, at p. 228; Campbell, supra, at pp. 767-768. In Downs-Morgan, supra, the court remanded for an evidentiary hearing to determine whether the defendant was afforded reasonably effective assistance from his counsel in deciding to plead guilty. Downs-Morgan, supra, at p. 1541.

A number of states also have addressed this issue. Five states--California, Connecticut, Massachusetts, Oregon, and Washington--have enacted statutes requiring courts to inform defendants of the possible deportation consequences of guilty pleas. Cal.Penal Code Sec. 1016.5 (West); Conn.Gen.Stat. Sec. 54-1j; Mass.Ann.Laws ch. 278, Sec. 29D (Law Co-op); Or.Rev.Stat. Sec. 135.385; Wash.Rev.Code Sec. 10.40.200.

Other states which do not have statutes have decisions on point. Wisconsin, Florida, and Alaska have held that, as a matter of law, a defendant may not withdraw his guilty plea. State v. Santos, [169 MICHAPP 284] 136 Wis.2d 528, 401 N.W.2d 856 (1987); State v. Ginebra, 511 So.2d 960 (Fla, 1987); Tafoya v. State, 500 P.2d 247 (Alaska, 1972), cert. den. 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (1973). Other states have allowed withdrawal if the defendant makes a sufficient showing of ineffective assistance of counsel. See State v. Lopez, 379 N.W.2d 633 (Minn.App., 1986); Daley v. State, 61 Md.App. 486, 487 A.2d 320 (1985); State v. Chung, 210 N.J.Super. 427, 510 A.2d 72 (1986); Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982); ...