COURT FOR THE COUNTY OF 
| Chapter 24: Post-Conviction Motions |
It is beyond the scope of this manual to handle the complex and discrete issues involved in post-conviction motions, in any depth. Nonetheless, there are some general issues common to any post-conviction motion that bear discussion, particularly because of the burdens placed on the defendant by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), referred to in the opening sections of this manual. 28 USC 2254(d). As a result of the AEDPA, the trial lawyer must be vigilant about filing deadlines and waiver issues. We have included a few samples of post-trial motions in this section, however, since post-conviction motions will necessarily be extremely case-specific, these samples are intended as examples, and not models.
There are four kinds of post-conviction motions which we will discuss: motion for a new
trial (MCL 770.2; MSA 28.1099; MCR 6.431), motion for relief from judgment (MCR 6.502
and 6.508), motion for a hearing under People v Ginther, 390 Mich 436 (1973), and motion
to withdraw a guilty plea (
24-2 Developing Post-Conviction Motions
Your post-conviction motions must be supported by affidavits, or your client will be procedurally defaulted. Any claim not based on facts already in the trial record must be supported by an affidavit.
Although the courts repeatedly admonish counsel that post-conviction proceedings are not designed for a total relitigation of the issues at trial, counsel must, essentially, prepare as though that is what he is doing. Counsel must not only be thoroughly familiar with the entire record, he must also do a great deal of independent factual investigation outside the record. In a disturbingly large number of cases, the facts presented at trial were incomplete or even false because information was concealed by the state, witnesses had disappeared at the time of trial or testified falsely at trial, or the defense attorney did not conduct an adequate investigation in the first instance into guilt or sentencing issues.
The post-conviction motion is not a step in the trial and appellate process. It is a search for matters outside of the record that support a claim for relief. Since there is no right to a post-conviction hearing, only a right to request one, the motion may be dismissed or denied without a hearing. Therefore, it must be factually complete enough to warrant relief either on direct appeal or in federal court. If there is any colorable claim to be asserted, it must be raised in state court, and litigated as both a state and federal constitutional issue, or it cannot be raised in federal court.
Investigation is generally the most important duty you will perform in representing your client at trial or in post-conviction proceedings. In a legal atmosphere increasingly hostile to systemic attacks and review of fact-finders, it is necessary to expand the record in a unique way so as to give the courts the opportunity to rule for your client without concern for repercussions.
24-2-a What Are You Looking For?
When you begin your post-conviction investigation of a case, you are trying to accomplish two things: 1) to discover the true facts of the case, and 2) to discover any legal claims that might result in a reversal of the conviction.
What do we mean by the facts of the case? We mean: 1) the facts of your client's life history as it may impact on sentencing or competency issues; 2) the facts of the defense attorney's pre-trial investigation and conduct of the trial; 3) the facts, in and out of court, that surrounded the trial and appeal; 4) the facts of the crime; and 5) the facts of the official investigation into the crime.
(1) The Facts of Your Client's Life
Your investigation should search for aspects of your client's personal history that may be outcome-determinative. The specific details of your client's personal history should be thoroughly explored in a careful and confidential manner because they may lead to claims which may reverse the conviction, or change the sentence. For example, if your client is retarded and functionally illiterate, this fact may call into question the voluntariness of his confession.
(2) The Facts of Defense Counsel's Representation
An investigation into the facts of trial counsel's pre-trial investigation and conduct of the trial has two basic goals: a) to determine whether the attorney provided effective representation, and b) to determine whether the defense preparation or presentation was impeded in any way by the prosecution.
Obviously, many clients will have been convicted because the evidence was overwhelming, the credibility of the prosecution's witnesses was excellent, and the client confessed. But some convictions can be traced, unfortunately, to the performance of defense counsel. In some cases, lack of experience is to blame. In others, lack of motivation, conscientiousness, and/or resources leads to the conviction. In still others, state actors prevented a full and zealous defense. The denial of funds, denial of an important continuance, or withholding of discoverable material until the last moment, can effectively prevent counsel from functioning competently.
(3) The Facts Surrounding Trial
An investigation into the facts, in and out of the courtroom, that surrounded the trial will reveal both the atmosphere in which the case was tried and important specific actions or omissions that do not necessarily appear in the trial or appellate record. For example, some unrecorded facts surrounding the trial may include the shackling of the defendant or appearance of the defendant in prison garb, excessive security in the courtroom, actions by the victim's family that would have prejudiced the jury, the absence of the defendant at crucial stages of the proceedings against him, a prevailing community sentiment of hostility or racism that was not revealed during the voir dire, or non-record evidence considered by the appeals court. Remember to review videotapes of trial proceedings, if they exist, for investigation of conduct which is not necessarily captured in transcripts.
(4) The Facts of the Crime
An investigation into the facts of the crime is designed to determine: a) whether your client was the person who committed the crime; b) if so, whether he did so with the requisite mental state; and c) even if he did commit the crime with the requisite mental state, whether there exists a valid affirmative defense to the crime that could result in an acquittal or conviction of a lesser offense.
An investigation into the facts of the crime is obviously necessary when a client claims he is innocent (that is, not in any way involved in the offense), or when he claims a lesser degree of culpability (such as, provocation, self defense, non-triggerman in a case with multiple defendants, coercion by an accomplice, etc.). However, it is also necessary when your client admits full responsibility. For many reasons, a defendant may accept responsibility even though he was, in fact, not fully culpable. He could be protecting someone he loves from prosecution, he could be in fear of a co-defendant with whom he is incarcerated, he could be mentally ill or retarded and accept what others have told him about his behavior, he could have experienced a religious conversion and feel it would be wrong on a moral level not to accept full responsibility if he was in any way involved with the crime, or he could be misleading you for a host of other reasons. Moreover, there are cases where false testimony or fabricated evidence was introduced at trial, and the state did not otherwise have sufficient and reliable evidence of guilt. This may provide a basis for a reversal of the conviction.
(5) The Facts of the Official Investigation
An investigation into the facts of the official investigation of the crime is designed to reveal whether the investigators properly gathered sufficient evidence to convict your client of the crime. Considerations to be evaluated are: a) whether the physical evidence presented was properly analyzed by the experts; b) whether the prosecution in any way improperly influenced witnesses who testified against your client; c) whether any searches or arrests were conducted in violation of your client's constitutional rights; or d) whether the prosecutor failed to reveal any information to which the defense was entitled (for example, exculpatory evidence as to either guilt or penalty, deals of leniency made with witnesses in exchange for their testimony, or other suspects). An investigation into the facts of the official investigation is often difficult to conduct, but can be surprisingly fruitful in many cases.
Your ultimate goal in investigating at the post-conviction stage is to take the facts and develop issues that might result in a reversal of the conviction. Without a thorough investigation, you cannot know enough about the case to be sure you have uncovered the potential issues. During your investigation, you need to maintain a delicate balance between focusing on the goal of developing issues, and letting the facts unfold before you without pre-conceived notions about where they may lead. If your ideas about the issues to be raised are too inflexible, you might miss information that would fruitfully lead you in another direction.
(1) Motion for a New Trial (MCL 770.2; MSA 28.1099; MCR 6.431)
If your motion applies to a case for which there is an appeal as of right to the Court of Appeals, you have 60 days to file a motion for a new trial. MCL 770.2(1); MSA 28.1099(1). If you are filing on a case that is a municipal or misdemeanor violation appealable to the Circuit Court, the time period is 20 days. MCL 770.2(2) and (3); MSA 28.1099(2) and (3). The trial court can, for good cause shown, extend the period of time for filing. MCL 770.2(4); MSA 28.1099(4). The trial court can also allow extensions of time within the 60-day period, upon request. MCL 770.2 (1); MSA 28.1099(1). The grounds for and procedures for filing a motion for a new trial are covered by MCR 6.431.
(2) Motion for Relief from Judgment (
The rules for a motion for relief from judgment contemplate the introduction
of evidence outside the trial record. The time for filing is not specified. In
other words, you can file many years into the client's sentence. Keep in mind
the AEDPA clock, however, as you need to file within one year of the case
being final on appeal to be able to seek relief in federal court. As of August
1, 1995, only one such motion can be filed.
The issues you are most likely to encounter upon reinvestigation of the case will be violations of Brady v Maryland, 373 US 83; 83 SCt 1194; 10 LEd2d 215 (1963), and ineffective assistance of counsel. The Michigan standard of substantive review for the withholding of exculpatory material is the same as the federal standard. United States v Agurs, 427 US 97; 96 SCt 2392; 49 LEd2d 342 (1976); Kyles v Whitley, 514 US 419; 115 SCt 1555; 131 LEd2d 490 (1995); People v Losey, 98 Mich App 189 (1980), rev'd on other grds 413 Mich 346 (1982).
The Michigan substantive standard of review for ineffective assistance of counsel is the same as the federal standard articulated in Strickland v Washington, 466 US 668; 104 SCt 2052; 80 LEd2d 674 (1984). People v Harris, 201 Mich App 147, 154 (1993); People v Pickens, 446 Mich 298 (1994).
A sample 6.500 motion accompanies this chapter. The sample references a separate memorandum of law and a set of exhibits; due to space constraints, those are not reproduced in this manual. Because there is no "right" to a hearing, the only facts there may be in the record may be those that you enter through your exhibits and all affidavits.
(3) Motion for a Hearing under People v Ginther, 390 Mich 436 (1973).
Before
Even where the record is complete enough to raise ineffective assistance on direct appeal, your failure to request an evidentiary hearing may preclude such a request later in federal court. Keeney v Tamayo-Reyes, 504 US 1; 112 SCt 1715 (1992).
(4) Motion to Withdraw a Plea (
A defendant may plead not guilty, guilty, nolo contendere, guilty but mentally
ill, or not guilty by reason of insanity.
Requests to withdraw pleas are generally regarded as frivolous where the circumstances indicate that the defendant's true motivation is a concern regarding sentencing. People v Haynes, 221 Mich App 551 (1997).
A motion to withdraw a plea can be based on a claim of ineffective assistance of counsel, and a hearing should be conducted. People v Jackson, 203 Mich App 607 (1994); Hill v Lockhart, 894 F2d 1009 (CA8, 1990).
Most importantly, remember that a withdrawn plea most likely exposes your client to the original, usually higher, charge(s). MCR 6.312.
The rule is silent as to whether an evidentiary hearing can or should be held
when a defendant moves to withdraw the plea after sentence. The Court in
People v Sledge (On Rehearing), 200 Mich App 326, lv den and depub 444
Mich 863 (1993), held that a defendant who claims an unfulfilled promise of
leniency is entitled to a hearing. But see
24.2.b.1 Timely Motion for New Trial [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
____________________________________/
Pursuant to MCR 2.611(A)(1), 
, moves this Court for a new trial, based on the following:
1. On 
, 
was convicted by a jury of 
.
2. During 
trial, the court made several erroneous rulings, each of which
denied
a fair trial and require that his conviction be set aside.
5. Each of these errors alone require that 
conviction be vacated and a new
trial granted. Together, their prejudicial effect was far greater.
For these reasons, 
asks that this Court set aside his conviction for
and grant 
a new trial.
Respectfully submitted,
______________________
Attorney for Defendant
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
___________________________________/
On 
, 
was convicted by jury of 
During the trial, the court made a number of errors of
law, each h of which compromised 
right to a fair trial and each of which requires
that his conviction be set aside. The cumulative effect of the errors compounded the prejudice. A
trial judge may order a new trial when an order of the court or an abuse of discretion denied the
moving party the right to a fair trial, MCR 2.611(A)(1)(a), or when an error of law occurred in the
proceedings, MCR 2.611(A)(1)(g).(1) While one of the errors claimed by the defendant may not in
itself warrant a new trial, a judge may consider the errors in totality to determine if a miscarriage of
justice has occurred. People v Skowronski, 61 Mich App 71, 77 (1975).
I. THE COURT ERRED IN REFUSING TO PERMIT CROSS-EXAMINATION OF THE COMPLAINING WITNESS ON HER PENDING CHARGE OF ASSAULTING THE DEFENDANT.
, the complaining witness, was arrested on 
, for domestic assault and battery
committed against 
. This charge was pending at the time of the defendant's trial.
was scheduled to be tried in the same court by the same prosecutor just three days after
trial. Defense counsel filed a motion in limine to permit cross-examination of 
about this pending charge. The prosecution objected and the court denied the motion. As a result, 
right to confront his accuser was severely compromised.
The court's preclusion of this cross-examination was in direct opposition to state precedent. People v Whitty, 96 Mich App 403 (1980). In Whitty, the defendant was not permitted to cross-examine the prosecution's chief witness in a murder case about his pending charges. In holding that this limit on the defendant's cross-examination rights was reversible error, the Court of Appeals explained that while prior misdemeanor convictions are inadmissible to impeach a witness on her credibility, "the fact that a prosecution witness has charges pending is particularly relevant to the issue of the witness's interest in testifying." Whitty, 96 Mich App at 418 (emphasis added). The court also noted that even evidence of arrests which did not result in convictions are admissible for this purpose. Id. Further, the court held that the defendant did not have to demonstrate that any deal existed between the witness and the prosecution before impeaching the witness with the pending charge. Id.
In People v Neto Alan Layher, 238 Mich App 573 (1999), the Court of Appeals held that a defense witness could be impeached with a prior criminal charge, for which the witness had been acquitted, to show his bias or interest in the case.
Even if there is no support for the conclusion that the witness and the prosecution had any sort of deal, the defense is still entitled to "bring out the witness's bias or interest, if any, affecting the outcome of the case." People v Torrez, 90 Mich App 120, 124 (1979). Because bias or interest could be inferred from a witness's pending charges, the Torrez court held that they were admissible for impeachment purposes. "[S]ince the withheld information could have been admitted to assist defense counsel in attacking the key witness' credibility," Torrez, 90 Mich App at 125, the court held that the defendant was denied a fair trial. See also People v Harrington, 76 Mich App 118 (1977) [witness may be cross-examined on any interest she may have in the outcome of a case, including pending charges]; People v Sesson, 45 Mich App 288 (1973) [pending charges are relevant to whether a witness is under duress from the State when giving testimony, and where these charges are suppressed, there is cause for a new trial].
should have been permitted to cross-examine 
regarding her
pending charges. Since the very same prosecutor who represented the State in 
case was scheduled to prosecute 
later that week, it can reasonably be inferred that at the
very least the possibility of duress existed. People v Sesson, 45 Mich App at 300-1. If even the
possibility of bias exists because of the pending charges, the court must allow cross-examination on
the pending charges. People v Whitty, 96 Mich App at 418. This court's refusal to permit the cross-examination denied 
a fair trial. Because the court's error violated precedent as
well as 
confrontation rights under the state and federal constitutions, his
conviction must be set aside.
II. THE COURT ERRED IN PERMITTING THE PROSECUTION TO PLAY A 911 AUDIOTAPE AND A BOOKING PROCESS VIDEOTAPE
The court permitted the prosecution to play for the jury the audio-tape of the phone call
made to a 911 operator on the night of the incident, as well as a twenty-minute videotape
of 
being booked at the 
County Jail. 
made the call, which lasted
approximately five minutes, while 
was still present. While she made some
allegations of 
assaultive conduct on the tape, she also answered a number of
questions put to her that were unrelated to the alleged incident. The videotape was filmed at least
3 hours after 
arrest when he was taken to the county jail.
objected to the admission of each tape on several grounds. The court's
erroneous admission of each tape prevented 
from being tried fairly and requires
that his conviction be set aside.
A. The Court Erred in Admitting the 911 Recording Where No Proper Foundation Was Laid and Where the Tape Was Unduly Prejudicial to the Defendant.
objected to the admission of the 911 tape recording because a proper
foundation could not and was not laid for its admission, and because its prejudicial effect far
outweighed its probative value. The recording of Jane Doe's phone call to a 911 operator was
inadmissible hearsay and the prosecution failed to lay a proper foundation for its admission as an
exception to the rule against hearsay. While the prosecution never specified whether it sought to
introduce the recording as either a present sense impression or an excited utterance, neither exception
to the hearsay rule was appropriate.(2)
i. There was no foundation laid to admit the recording as a present sense impression
For the 911 recorded statements to have been considered a present sense impressions, four conditions had to have been met: (1) the statements must have provided an explanation or description of the perceived event; (2) the declarant must have personally perceived the event; (3) the explanation or description must have been "substantially contemporaneous" with the event; and (4) there must have been independent evidence of the statements that established the underlying event by a preponderance of the evidence. MRE 803(1); People v Hendrickson, 459 Mich 229, 236 (1998). Though the prosecution failed to meet these preconditions, the court permitted the playing of the tape.
First, the recording of the call was largely unrelated to the event in which was the subject of
the charge against 
. While Jane Doe's first statement to the operator, "My ex-husband beat me up," and her specific allegations about the battery (that he cut her with glass and
that he threatened her with a gun), arguably "explained or described the event," most of her
statements on the five-minute tape, and those of the operator who elicited and responded to them,
did not explain or describe the event at all. Rather, the conversation that ensued between the two
women tracked 
movements during the phone call and accused him of previous
uncharged crimes. For this reason, most of the recording failed to meet the first present sense
impression requirement. Second, the prosecution was required to provide some proof that the
underlying event, the battery, took place, before the recorded statements could qualify as present
sense impressions. Since Jane Doe's sworn testimony was inconsistent with her statements to the
911 operator because, as she explained, she lied to the 911 operator, there was no corroboration to
prove that the underlying event occurred. Hendrickson, 459 Mich at 236. In Hendrickson, the
complainant's in-court testimony, like that in this case, contradicted her statements to the 911
operator. Since the prosecution did not provide any other evidence, which could have corroborated
the allegations in the recording, it did not qualify as a present sense impression and the court erred
by admitting it.
ii. There was no foundation laid to admit the recording as an excited utterance.
The prosecution similarly failed to lay a foundation to admit the 911 recording as an excited utterance. First, as with present sense impressions, for the statements to have qualified as excited utterances there must have been independent corroboration of the underlying event. People v Burton, 433 Mich 268, 294 (1989). Because there was no independent corroboration, and in fact there was only independent contradiction, the recorded statements did not qualify as excited utterances.
Second, because nearly all of Jane Doe's statements on the recording were responses to questions asked by the 911 operator, her comments lacked the spontaneity required to qualify as excited utterances. MRE 803(2); People v Straight, 430 Mich 418 (1988); Holtz v LJ Beal & Son, Inc., 339 Mich 235, 240 (1954) [fact that a statement sought to be offered as an excited utterance follows a question is a "factor entitled to consideration, especially where it appears that the claimed exception to the hearsay rule was in fact a deliberate and considered answer to such question"]; People v Petrella, 124 Mich App 745, 768 (1983) [fact that statement is made in response to a specific question militates against admission of statement as an excited utterance]. Jane Doe's deliberate and thoughtful responses to the operator's specific questions lacked the spontaneity required to qualify them as excited utterances.
iii. The 911 recording was not probative, but its prejudice was devastating
In addition to being inadmissible hearsay, the 911 recording lacked any probative value.
MRE 403. Jane Doe testified about the events that occurred inconsistently with what she told the
911 operator. She testified that her allegations to the 911 operator were false. She explained, under
oath, that she said what she did about 
assaulting her because she thought that she
needed to say it to have him removed from the house. Having presented that testimony to the jury,
Jane Doe's inconsistent and false allegations to the 911 operator lacked any probative value.
The prejudicial impact of the recording, however, was great. Since there was no other
evidence that 
committed a battery, the jury must have credited Jane Doe's
unsworn, false allegations to the 911 operator (or her unsworn, false allegations to 
while
discrediting her in-court, sworn testimony that she was never battered by 
.
In addition, during the recording the operator asked Jane Doe whether 
had
ever assaulted her previously, and Jane Doe answered that he had. When the court decided to allow
the tape to be played, the defense asked that at the very least this unsworn allegation of uncharged
criminal conduct be edited out. In the interest of time, the court denied the request. As a result, the
jury heard about criminal conduct, similar in kind to what the defendant was charged with, which
was not the subject of this trial. The prejudice was irreversible.
Because no proper foundation was laid for the tape's admission and because the prejudicial
effect was far greater than any possible probative value, the court's error in admitting the tape denied 
a fair trial and requires that his conviction be vacated.
B. The Court Erred in Admitting a Videotape Which Chronicled
Being Booked at the County Jail Where Its Prejudicial Effect
Outweighed Any Probative Value
Over defense objection, the court permitted the prosecution to play a twenty-minute
videotape of 
being booked at the jail the night of his arrest. Of course, the fact
that 
was arrested and incarcerated is not probative of his guilt. MRE 403. The
prosecution argued, and presumably the court credited this argument, that the tape was relevant
because 
could be heard making a threat about the complaining witness.(3)
The tape played for approximately 15 minutes before the alleged "threat" was made. At the
point where 
allegedly made the "threat" the prosecution stopped the tape and had
repeat what 
said.(4) That "threat," made hours after the alleged incident
took place and also after 
had been arrested for a crime he did not commit,
according to Jane Doe, was in no way probative of 
state of mind at the time of
the alleged battery, which was the only time 
state of mind was relevant. The
prosecution offered no other explanation for why a twenty-minute tape of 
being
booked and jailed was probative of any matter in the case.
Nor could an explanation be given. The prejudice, however, was great. Having the jury
watch for an extended time as 
was processed and incarcerated is no different than
seeing a criminal defendant stand trial wearing a jail uniform or in handcuffs. Estelle v Williams,
425 US 501; 96 SCt 1691; 48 LEd2d 126 (1976); Woodwards v Cardwell, 430 F2d 978 (CA6,
1970). The jury likely inferred that since 
was booked and jailed for the offense
on which he stood trial, he must be guilty. This presumption was impossible to overcome, and for
that reason the evidence should only have been introduced if the probative value outweighed its
prejudice.
Because the tape lacked any probative value and because it severely prejudiced
, the court erred by allowing the prosecution to play it. As a result,
conviction should be set aside.
Each of the court's errors prevented 
from being tried fairly and requires
that his conviction be set aside. Together, the error was significantly compounded. The court should
grant 
motion to set aside his conviction and order a new trial.
Respectfully submitted,
________________________
Attorney for Defendant
24.2.b.2 Motion for Relief From Judgment [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
___________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
___________________________________/
The Defendant, 
, by 
counsel, respectfully moves this Court to
set aside or modify the judgment in this case pursuant to Michigan Court Rule 6.500 and the
following:
1. 
was convicted of 
following a 
trial in criminal case
number 
. The trial was held in the 
for the County of
, the Honorable 
presiding.
2. 
was sentenced on 
, to 
. 
is presently
serving that sentence at the 
in the State of Michigan.
3. A timely notice of appeal was filed, and the Michigan Court of Appeals affirmed
conviction on 
. 
was represented by
, 
4. At this time, 
moves this Court to set aside or modify the judgment, and
to grant a new trial in the case.
5. This motion is based upon numerous violations of 
Constitutional rights
under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and
Sections Seventeen and Twenty of the Michigan Constitution. Specifically,
rights were impermissibly infringed where the prosecution:
7. The factual and legal basis behind each of these claims is set forth in the accompanying Memorandum of Law.
8. None of the above-listed claims have been raised in either 
previous trial
court or Court of Appeals pleadings.
9. 
does not request the appointment of counsel by this Court and will proceed
with the assistance of undersigned counsel.
For these reasons and those set forth in the accompanying Memorandum, 
requests that this Court set aside or modify the judgment in this case.
Respectfully submitted,
___________________
Attorney for Defendant
24.2.b.3 Motion for a Ginther Hearing [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
The Defendant, 
, by 
counsel, moves this Court to order a new
trial or, in the alternative, to hold a hearing in this matter pursuant to People v Ginther, 390 Mich
436 (1973) for the following reasons:
1. 
was convicted of 
following a 
on 
. The trial
was held in the 
Court for the County of 
, the Honorable
Judge 
presiding.
2. 
was sentenced on 
, to 
. 
is presently serving
that sentence at the 
Correctional Facility in the State of Michigan.
3. From an examination of the record, it is apparent that trial counsel was constitutionally ineffective in the following ways:
For these reasons, 
requests that this Court grant 
request for a
new trial or, in the alternative, a Ginther hearing.
Respectfully submitted,
___________________
Attorney for Defendant
24.2.b.4 Motion for Plea Withdrawal [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
_____________________________________/
The Defendant, 
, by 
attorney, moves to withdraw 
plea
of guilty pursuant to
1. 
pleaded guilty to 
on 
, before the Honorable 
, in
the 
.
2. No claim of appeal was filed. This matter is proceeding under MCR 6.311.
3. 
conviction is invalid in that the trial court failed to establish that
plea of guilty was understanding and voluntary. The trial court failed to
question 
as to either requirement, and failed to make any finding as to
either requirement.
4. 
conviction is invalid in that the trial court failed to advise
of the maximum possible penalty for conviction of 
, and neglected
to inform 
, on the record, of the rights that 
would waive upon
entry of a plea of guilty.
5. 
conviction is invalid in that the trial court's purported use of a "writing" to
comply with the notice requirements of
a. No written notice/advice of rights was ever marked as an exhibit or otherwise
incorporated into the court file.
b. The plea form which has been provided to counsel, and is alleged to have been
used in this matter, was never signed by 
. There is no
acknowledgment that 
had ever read the document, nor that
understood its contents, the rights that 
was waiving upon the entry
of 
plea, or the possible consequences of that plea. Thus, the writing does not
fulfil the requirements of the court rule.
c. The written document purporting to be 
advice of rights is
unsigned and was never referenced by the trial court. (See Appendix B).
d. The trial court failed, at the time of the plea, to personally "address the defendant
and obtain from him . . . orally on the record, a statement that the rights were read
and understood and a waiver of those rights."
6. These deviations affected the substantial rights of 
, and the prosecution
will not be prejudiced by 
withdrawal of his plea.
For these reasons, 
requests that this Court permit him to withdraw his
plea.
Respectfully submitted,
___________________
Attorney for Defendant
24.2.b.5 Motion for Directed Verdict (assault case) [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
_____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiffs,
vs No. 
Hon. 
,
Defendant.
______________________________________/
Pursuant to 
, moves this Court to grant this motion for directed verdict of
acquittal. 
relies on the following reasons and memorandum of law in the support of the motion:
1. 
was tried on the charge of
on 
in front of a jury.
2. At the conclusion of the evidence, 
requested that the court grant a motion for directed
verdict of acquittal based on the prosecution's failure to prove the charge beyond a reasonable doubt.
3. The court reserved decision on this motion.
5. The prosecution failed to prove beyond a reasonable doubt that 
6. The prosecution failed to prove beyond a reasonable doubt that 
7. The prosecution failed to prove beyond a reasonable doubt that 
alleged acts
8. The prosecution's failure to prove each element beyond a reasonable doubt requires that the court grant the Defendant's motion for judgment of acquittal.
9. This motion is supported by the attached memorandum of law.
For these reasons, 
requests that the court grant 
motion for directed verdict
of acquittal.
Respectfully submitted,
___________________________
Attorney for Defendant
24.2.b.6 Motion to Vacate Plea Due to Immigration Consequences [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
John Doe,
Defendant.
_____________________________________/
The Defendant, John Doe, by his attorney, moves this Court for an order vacating his plea of guilty to retail fraud in the first-degree on the grounds that:
1. On September 1, 1999, John Doe, a resident alien and a citizen of Pakistan, was charged with first-degree retail fraud pursuant to MCL 750.356c; MSA 28.588(3).
2. On November 1, 1999, John Doe, and his co-defendant, Ms. Jane Roe pled guilty to first-degree retail fraud, a felony charge carrying a maximum sentence of two years in prison and/or $1,000.00 fine.
3. John Doe was sentenced to six-months' probation and twenty hours of community service, which were successfully completed on April 30, 2000.
4. Directly after completing his term of probation, John Doe received notice from the Immigration and Naturalization Service that deportation proceedings were being initiated pursuant to 8 USC §1227, which mandates deportation of resident aliens who commit a crime for which a sentence of one year or longer may be imposed within five years of their date of admission to the United States.
5. On June 1, 2000, an order of removal was entered against John Doe by the United States Immigration Court.
6. Pursuant to 8 USC §1229a, a judge has no discretion to consider the equities of an immigrant's situation, therefore the order of removal was an automatic consequence of Mr. Doe's guilty plea to first-degree retail fraud.
7. John Doe and his co-defendant, Ms. Doe, were represented at all circuit court proceedings by Mary Smith.
8. Mr. Doe's primary language is Urdu; he speaks and understands little English.
9. Because Mr. Doe speaks little English, the co-defendant's husband, in consultation with Mary Smith, served as his official translator at all but one of the court proceedings and meetings with Ms. Smith.
10. During the course of her representation Mary Smith failed to correctly advise the Defendant about the deportation consequences of entering a guilty plea.
11. Had the Defendant been aware of the immediacy and certainty of deportation, he would not have entered a plea of guilty to first-degree retail fraud.
12. Because of defense counsel's mistakes, Mr. Doe's plea was not entered knowingly and voluntarily.
13. Defense Counsel's failure to correctly advise John Doe regarding the deportation consequences of a guilty plea did not meet the standard of objectively reasonable representation, rendering his assistance ineffective.
14. Further, deportation of John Doe is unjust and inequitable.
15. Because John Doe's plea was not entered knowingly and voluntarily, because he was denied effective assistance of counsel and because his deportation is unjust and inequitable, this court should vacate his plea pursuant to MCR 6.311.
This motion is supported by the attached brief.
Respectfully submitted,
____________________
Attorney for Defendant
COURT FOR COUNTY OF 
_____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
John Doe,
Defendant.
_____________________________________/
John Doe, a Pakistani citizen whose primary language is Urdu and who speaks and understands little English, pled guilty on November 1, 1999, before Hon. Joseph Brown, County Circuit Judge, to the felony offense of first-degree retail fraud. Prior to his plea, Mr. Doe's trial counsel, Mary Smith, either failed to advise him at all, (Exhibit 1, defendant's name Aff., at T19.), or advised him through a translator, Mr. Denis Translator, that this plea would not lead to immediate and certain deportation. (Exhibit 2, Lawyer Aff., at T12.) On May 1, 2000, Mr. Doe received a notice of deportation proceedings from the US Immigration and Naturalization Service (INS). The notice charged that he was subject to deportation from the United States pursuant to 8 USC §1227, section 237(a)(2)(A)(I) of the Immigration and Nationality Act, because he was "convicted of a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed." (8 USC §1227, attached at Exhibit 5.) A theft offense for which a possible term of imprisonment is at least one year is considered a crime of moral turpitude for purposes of 8 USC §1227. Under 8 USC §1229a, a United States Immigration Court judge does not have discretion to consider the equities of a potential deportee's situation. Therefore, an order of deportation is an automatic consequence of entering a guilty plea to the felony of first-degree retail fraud.
Though defense counsel was aware that there might be some possible immigration consequences for Mr. Doe, were he to plea guilty, defense counsel did not make a serious attempt to educate himself about the immigration consequences the Defendant faced. (Lawyer Aff. at __.) Mary Smith never spoke directly with John Doe, but instead relied on Mr. Denis Roe, the husband of Defendant's co-defendant, Jane Roe, who acted as both a translator and conduit for Ms. Smith in all but one meeting with or proceeding involving Mr. Doe. Id. Jane Roe, Defendant's co-defendant and Mr. Denis Roe's wife, did not face the same immigration consequences that Mr. Doe faced because she had resided in the United States for more than five years prior to the arrest. Mary Smith had doubts about both the quality and the completeness of Mr. Roe's translations. (Lawyer Aff. at __.) Despite her misgivings about the competency and effectiveness of the translations, and her knowledge that Mr. Doe relied entirely on his translator to explain to him the nature and consequence of all proceedings at meetings, Mary Smith made no attempt to secure the services of an alternate, impartial translator. Id. The only time Mr. Roe did not serve as Mr. Doe's translator was on November 1, 1999, when Mr. Doe entered his guilty plea. Id.
Following the trial court's acceptance of John Doe's plea, the Michigan Department of Corrections prepared a pre-sentence report. The report noted that Mr. Doe had no criminal history, that he was employed full-time, that he was married, that he and his wife share child-care responsibilities for their three children, and that he was cooperative during the course of the Department of Correction's investigation. (Exhibit 3, Pre-Sentence Investigation (PSI) at __.) The report also indicated that Mr. Doe spoke very little English, and that Mr. Roe served as translator during the interview. The Department of Corrections recommended community service "in view of the defendant's lack of any prior criminal convictions and his current employment." (PSI at __.) Adopting the Department of Corrections' findings, Judge Joseph Brown sentenced Mr. Doe to time served (two days jail credit), twenty hours of community service and six months probation. Mr. Doe successfully completed his sentence without incident and was discharged from probation on April 30, 2000. Mr. Doe, who had no contact with the criminal justice system before this incident, also has had none since.
If he is deported, he will return to Karachi, Pakistan. (John Doe's Aff. at __.) Mr. Doe immigrated to the United States with his wife, whose father is a naturalized United States citizen. Id. Defendant and his wife have three young children (two boys, ages eleven and twelve, and one girl, age five). Id. Mr. Doe works full-time as a machine operator at US Farathane, Inc. Id. Ms. Doe works full-time at Fairmount Sign Company. Id. Mr. and Ms. Doe work different shifts (Defendant works nights) so that someone is always at home with the children. Id. John Doe is an active member of his church, and has significant ties to his community. Id. If deported, Mr. Doe will be forced to leave in the United States his wife, his children, his job, his property, and his friends.
John Doe's plea should be vacated for three reasons. First, because he was unaware of the very serious and very immediate deportation consequences of entering a guilty plea to first-degree retail fraud, his plea was not entered knowingly. Second, trial counsel's failure to correctly advise him regarding the immediate and certain deportation consequences of his plea, as well as counsel's use of an incompetent translator rendered his assistance ineffective. Finally, this court should vacate the plea because equity and fairness demand it.
A trial judge has the discretion to vacate a conviction based on a guilty plea after sentencing. MCR 6.31 I(A);
II. BECAUSE DEFENDANT'S PLEA WAS NOT ENTERED KNOWINGLY AND VOLUNTARILY IT IS NOT VALID AND MUST BE VACATED.
For a guilty plea to be valid, the defendant must have entered it knowingly and voluntarily. McMann v Richardson, 397 US 759, 772 (1970); In re Valle, 364 Mich 471, 477 (1961); People v Thew, 201 Mich App 78, 95 (1993) ("guilty plea . . . must be voluntary . . . knowing, intelligent, and done with a sufficient awareness of relevant circumstances and likely consequences.")
John Doe was charged with first-degree retail fraud, MCL 750.356c; MSA 28.588(3), which carried a
maximum sentence of two years in prison and a $ 1,000 fine. He pled guilty to the crime charged. Mr. Doe, who works
full-time and helps support and care for his three children, pled guilty because he was told by his trial counsel, Mary
Smith, that his sentence would likely be a period of probation and twenty hours of community service. While Mary
Smith had concerns about what immigration risks Mr. Doe might face after entering a plea, she never told Mr. Doe that
he would be facing immediate and certain deportation as a direct result of his plea. Mr. Doe never knew that a
consequence of his guilty plea was deportation.(5)
He never considered that by pleading guilty he would be exiled from
his home, forced to leave his wife, his children, his job and all his property in the United States.
Because Mr. Doe lacked the information necessary to enter his plea voluntarily, knowingly, intelligently, and
with sufficient awareness of relevant circumstances and likely consequences, his plea is invalid. People v Corteway,
212 Mich App 442, 445 (1995) [guilty plea involuntary when defendant deprived of ability to make an intelligent and
informed choice]; People v Thew, 201 Mich App 78, 91 (1993) [guilty plea found to be involuntary or unknowing where
counsel has failed to discuss possible defenses to the charges to which the defendant is pleading guilty].
III. TRIAL COUNSEL'S HANDLING OF THE IMMIGRATION CONSEQUENCES RENDERS HER
ASSISTANCE INEFFECTIVE.
The Sixth Amendment provides criminal defendants not merely with the right to counsel, but with the right to
effective assistance of counsel. McMann v Richardson, 397 US at 771, n.14. The standard for determining
ineffectiveness is whether (1) counsel's performance was deficient, and (2) there was prejudice to the defendant.
Strickland v Washington, 466 US 668, 687 (1984); People v Pickens, 446 Mich 298, 312, 803 (1994) [adopting the
Strickland standard and declining to articulate a separate standard under the Michigan Constitution].
Counsel's performance is deficient when it falls below an objective standard of reasonableness. People v
Mitchell, 454 Mich 145, 157-58 (1997); Pickens, 446 Mich at 309. If counsel does not perform at least as well as a
lawyer with ordinary training and skill in the criminal law, then his assistance is rendered ineffective. People v Garcia,
398 Mich 250, 264 (1976); People v Bryant, 77 Mich App 108, 110 (1977); People v Tumpkin, 49 Mich App 262, 267
(1973). In order to satisfy the "prejudice" requirement of the Strickland test in the context of a guilty plea, Mr. Doe
must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." Hill v Lockhart, 894 F2d 1009 (CA8, 1990). People v Mays, 202 Mich App 181,
183 (1993).
A. Defense counsel's failure to correctly advise the Defendant regarding the deportation
consequences of his plea, and her use of an incompetent translator fell below the standard of
objectively reasonable representation
A guilty plea must be made with the knowledge of the "relevant circumstances and likely
consequences." United States v Brady, 397 US 742, 748 (1970). A criminal defendant's counsel is in a unique position
to understand both his client's personal circumstances and the consequences unique to his client of various courses of
action. Michel v United States, 507 F2d 461, 466 (2d Cir., 1974).
A non-citizen criminal defendant has specialized concerns that demand specialized attention. People v Pozo,
746 P2d 523, 529 (Colo. 1987) ["when defense counsel in a criminal case is aware that his client is an alien, he may
reasonably be required to investigate(6)
relevant immigration law"]. Non-citizen criminal defendants face consequences
often far more severe than the direct penal consequences of the criminal charges. Deportation may result in families
being divided or in "loss of both property and life, or of all that makes life worth living." NG Fang Ho v White, 259
US 276, 284 (1922). Many state courts have held that a failure to advise a client of the possible immigration
consequences of a guilty plea is not objectively reasonable, constituting ineffective assistance of counsel and rendering
a guilty plea unknowing and involuntary.(7)
Williams v State, 641 NE2d 44, 49 (Ind. App., 1994) [holding that failing
to advise client of collateral immigration consequences "whether labeled collateral or not, is of sufficient seriousness
that it constitutes ineffective assistance for an attorney to fall to advise a non-citizen defendant of the deportation
consequences of a guilty plea"]; Pozo, 746 P2d at 529; People v Padilla, 151 Ill App 3d 297, 303; 502 NE2d 1182, 1186
(1986) [same]; Commonwealth v Wellimgton, 305 Pa Super 24, 27; 451 A2d 223, 224 (1982) (same).(8)
The objectively reasonable representation to which the Defendant was entitled included correct advice as to
the severe collateral immigration consequences of his plea. Defensne counsel knew that Mr. Doe was a resident alien
in the United States, and as such might be subject to additional proceedings pursuant to a criminal conviction. (Mary
Smith's Aff. at __.) However, when Mary Smith advised Mr. Doe to plead guilty, she did not advise him that he would
be deported immediately and certainly. 8 USC §1229a; 8 USC §1227. Instead, she merely advised Mr Doe that there
was a possible risk "of deportation proceedings as a consequence of entering a guilty plea to the first-degree retail fraud
charge." (Mary Smith's Aff. at __.) The misinformation that the Defendant faced a "possible risk" rather than a certain
result of deportation was devastatingly incorrect.(9) Not only was Mary Smith's legal advice about deportation incorrect,
but she never made any attempt to determine whether John Doe understood his advice. (Mary Smith's Aff. at __.) In
addition, Ms. Smith had grave doubts about the quality and completeness of translations that Mr. Roe was able or
willing to provide to Mr. Doe. Id. at __.
Mary Smith had an obligation to properly advise John Doe of the various courses of action available, along
with the advantages, disadvantages, and resulting consequences of each option. People v Smith, 182 Mich App 436,
444 (1990). Before the Defendant entered his guilty plea, defense counsel had an obligation to explain to him the range
and consequences of available choices in sufficient detail to enable him to make an intelligent and informed choice.
People v Jackson, 203 Mich App 607, 614 (1994) [citing Thew, 201 Mich App at 90-91]; Cortewa, 21 Mich App at 445.
In considering the claim of ineffectiveness of counsel in the context of a guilty plea, courts in other
jurisdictions have found that an attorney's legal misadvise to a client regarding the consequence of deportation render
the plea involuntary and thus invalid.(10) Mott v State, 407 NW2d 581, 583 (Iowa 1987) [if a defendant is affirmatively
misled regarding deportation consequences, plea may be held to be invalid); People v Correa, 108 Ill 2d 541, 553; 485
NE2d 307, 312 (1985) [counsel's mistaken assertion that a guilty plea would probably not affect defendant's immigrant
status that was a prime factor in defendants decision to plead guilty, rendered counsel's assistance ineffective and the
plea involuntary]. Nor can other actors in the criminal justice system misadvise the defendant about immigration
consequences. United States v Russell, 686 F2d 35, 41 (DC Cir. 1982) [holding that in the context of prosecutorial
misadvise, "[T]he government may not be required to inform defendants of collateral plea consequences such as
deportation, but it does have an obligation not to misinform them."].
Mary Smith knew that John Doe spoke and understood very little English and that he could not follow the
conversations Ms. Smith had with his co-defendant and his co-defendant's husband. (John Doe's Aff. at __.) Still, Ms.
Smith did not advise Mr. Doe through a competent interpreter. Instead she relied on the services of the co-defendant's
husband, Mr. Roe, offered at no cost, to communicate with Mr. Doe. Ms. Smith had doubts about the quality and
completeness of the representations that Mr. Roe made to Mr. Doe, but at no time did Ms. Smith attempt to find a
competent and impartial translator. Id. at 115.
Mr. Doe has a wife, three children, a job, property, other family and friends in the United States. The
punishment of deportation is far more personally devastating to Mr. Doe than the probation sentence he received for
the conviction. Mary Smith's failure to give John Doe accurate information about so vital a consequence as deportation
distorted the costs and benefits to him of the various choices he had. He made an uninformed decision when he entered
his guilty plea, and his plea is thus invalid. Mary Smith's failure to advise John Doe of the immediate and direct
deportation consequences of a criminal conviction for first-degree retail fraud fell below the objective standard of
reasonably competent representation.
B. John Doe was prejudiced by counsel's errors
On June 1, 2000, an order of deportation was entered against the Defendant by the United States Immigration
Court. The sole basis for that order was this conviction. Because of his guilty plea to first-degree retail fraud, Mr. Doe
will be banished from his wife, his children, his job, his property and his community within the year.
But for defense counsel's mistakes, the Defendant "would not have pleaded guilty and would have insisted on
going to trial." Hill v Lockhart, supra. Had Mr. Doe been correctly informed that by pleading guilty he would be
deported and thereby separated from his wife and children, he would not have pleaded guilty. (John Doe's Aff. at T20.)
IV. FAIRNESS AND EQUITY DEMAND THAT THE COURT ALLOW
THE DEFENDANT TO WITHDRAW HIS PLEA.
The court has the discretion to set aside Mr. Doe's plea in the interest of fairness and equity if he was not made
aware of deportation consequences. Kadudu, 169 Mich App at 285. But see People v Osaghae, 460 Mich 529 (1999).
This discretion allows the court to "provide relief where subsequent events have turned the conviction into an instrument
of gross injustice." Urbina v United States, 992 FSupp 641, 643 (SDNY, 1998).
While Mr. Doe's sentence was meant to punish the act of shoplifting, the deportation proceedings instituted
against him threaten to turn this sentence into one that "pluck[s] him out of [his] community for life, and in effect
destroy[s] him." Urbina, 992 FSupp at 642. The Urbina court had allowed the defendant to enter a plea, which included
rehabilitative programs, in order that he be able to readjust to his community. After completion of his sentence, Mr.
Urbina was immediately deported pursuant to the Anti-Terrorism and Effective Death Penalty Act which had been
passed during the time of his sentence. The Court, in granting the extraordinary writ of error coram nobis, suggested
that a court "[o]n behalf of the unfortunates . . . should act in doing justice if the record makes plain a right to relief."
Id. at 644, n.1.
The sentence imposed upon Mr. Doe reflects the minor nature of the underlying offense, as well as his good
character. The pre-sentence recommendation, adopted by Judge Joseph Brown in sentencing, identified Mr. Doe's lack
of prior criminal convictions, continuous employment with a good record, and cooperation as a basis for a sentence of
probation and community service.(11) John Doe did not pose a threat to the community, as he was "a candidate for
community supervision." (PSI at __.)
As the direct result of his guilty plea to retail fraud in the first-degree, the Defendant is now subject to
deportation back to Pakistan, a sentence equivalent to a life of banishment. Fong Haw Tan v Phelan, 333 US 6, 10
(1948). Mr. Doe will be forced to leave his life here in the United States, a life which includes his wife, their three
young children, a good job for which he has maintained an exemplary work record, his church, his friends, his
belongings and his community. Such an extreme consequence hardly seems appropriate in light of the nature of the
crime, and Mr. Doe's good character.
An order of deportability has already been entered, and unless this court allows Mr. Doe to withdraw his plea,
he will be deported within the year. Allowing the Defendant to withdraw his plea would provide the relief he needs and
would not prejudice the state, as Mr. Doe has already successfully completed his sentence. Fairness and equity demand
that this court use its discretion to allow Mr. Doe to withdraw his plea.
If John Doe is not permitted to vacate his plea he will be deported within the year. Because his plea was not entered knowingly, because of his attorney's ineffectiveness, and because fairness and equity demand it, Mr. Doe's plea should be vacated.
Respectfully submitted,
___________________
Attorney for Defendant
24.2.b.7 Motion for New Trial Due to Great Weight of Evidence [Download: WP | Word | PDF]
COURT FOR THE COUNTY OF 
____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
,
Defendant.
___________________________________/
The Defendant, 
, by his counsel, moves this Court to grant 
motion to set aside
the verdict of guilty of 
as being against the great weight of the evidence, pursuant to
1. 
was convicted of 
following a 
trial on 
. The trial was held in the
Circuit Court for the County of 
, the Honorable 
presiding.
2. 
was sentenced on 
, to 
.
is presently serving that sentence at the 
Correctional Facility in the State of
Michigan.
3. This motion is being filed within the statutory period of 42 days from the date of the conviction. MCR 6.431(A)(1).
4. Because
a new trial should be granted. People v Lemmon, 456 Mich 625, 627 (1998).
For these reasons and those set forth in the accompanying Memorandum, 
requests that
this Court grant 
Motion for a New Trial Because the Guilty Verdict Is Against the Great Weight of the
Evidence.
Respectfully submitted,
___________________
Attorney for Defendant
1. 1 The Defendant also relies upon 2. 2 Likewise, the court did not specify under which exception it was permitting the recording to be
played, compounding the error.
3. 3 Since the prosecutor never watched the videotape before showing it to the jury, her argument
was based solely on what she had heard the tape would show from the booking officer, 4. 4 Presumably this was done because the quality of the tape was very poor and the jury would not
have known what was said without 5. 1 Mary Smith either never told John Doe anything regarding the deportation consequences, (John Doe's Aff at __.),
or she told him the wrong thing. (Mary Smith's Aff. at __.)
6. 2 Where a criminal defendant has a psychiatric history that bears on the charged offense, counsel's failure to arrange
for a competency hearing before entering a plea and counsel's failure to seriously investigate and consider the
possibility of an insanity defense denies the defendant effective assistance of counsel. People v. Snyder,108 Mich
App 754, 756; 310 NW2d 868, 869 (1981); McDonnel, 91 Mich App at 461.
7. 3 While Michigan appellate courts have not yet held that a failure to advise of deportation consequences is not
objectively reasonable, trial courts have the discretion to vacate a conviction based on this failure to advise. Kadudu,
169 Mich App at 285. The Supreme Court in People v Uwadia P. Osaghae, 460 Mich 529 (1999), observed that
there is no state requirement that a defendant be advised of the consequences of a plea under federal immigration
law. However, in Osaghae, the plea was entered prior to the deportation law in question, and, for that reason, the
Court found no ineffective assistance as counsel had no duty to predict the future when he gave defendant advice
regarding his plea. Although the Court found People v Kadadu, supra "not pertinent" because the federal law
placing Mr. Kadadu at risk for deportation was already on the books, the Court stated, "To the extent that it conflicts
with today's decision, Kadadu is overruled." Osaghae, supra at 533.
8. 4 As the risk of prejudice to criminal defendants who enter pleas without knowledge of the deportation
consequences is so great, several states have enacted legislation requiring the trial court to effectively communicate
these consequences to the defendant. CAL PENAL CODE § 10 16.5 (West 1985) [imposing statutory duty upon
judiciary to warn aliens about deportation possibilities before accepting guilty pleas]; CONN GEN STAT ANN §
54-Ij (West 1987) (same); MASS GEN LAWS ANN ch. 278, § 29D (West 1981) (same); OHIO REV CODE ANN
§ 2943.03.1 (Anderson 1993) (same); OR REV STAT § 135.385(2)(d) (1983) (same); TEX CODE CRIM PROC
ANN Arg § 26.13(a)(4) [West 1992 & Supp. IV 1993] (same); WASH REV CODE ANN § 10.40.200 (1985).
Enactment of these statutes reflects the legislative intent to "promote fairness to ... accused individuals by requiring
... that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special
consequences of such a defendant which may result from the plea." People v. Gontiz, 58 Cal App 4th 1309, 1316;
68 Cal Rptr 2d 786, 790 (1997); People v. Shaw, 64 Cal App 4th 492, 497; 74 Cal Rptr 2d 915, 918 (1998).
9. 5 According to John Doe, Mary Smith never advised him, correctly or incorrectly, regarding the immigration
consequences of his plea. (John Doe's Aff. at __.) While this may be explained by translation failure, as Ms. Smith
never secured the services of a competent translator, the result is no different. In either case, whether Ms. Smith
misadvised him or whether Ms. Smith did not advise him at all, his failure rendered his assistance ineffective.
10. 6 Courts have long held that a defense attorney's affirmative misrepresentations concerning the sentencing
consequences of a guilty plea may violate a criminal defendant's right to effective assistance of counsel. Sparks v
Sowders, 852 F2d 882, 885 (6th Cir 1988) [holding that gross misadvise by defense counsel regarding parole
eligibility amount to ineffective assistance of counsel]; Strader v Garrison, 611 F.2d 61, 63 (4th Cir. 1979) (same);
Jackson, 203 Mich. App. at 614-15; People v Spencer, 192 Mich App 146, 151; 480 NW2d 308, 311 (1991); People
v Flores, 90 Mich App 223, 229; 282 NW2d 782, 784 (1979); People v West, 82 Mich. App. 195 266 NW2d 761
(1978), rev'd, People v West, 406 Mich. 941; 289 NW2d 925, 926 (1979); Meier v State, 337 NW2d 204, 208
(Iowa 1983) [trial counsel's erroneous advise regarding the law on prison time the defendant would be required to
serve rendered his assistance ineffective]. The situation is no different when the misadvise leads to banishment
from the country as opposed to merely banishment from the community.
11. 7 Mr. Doe's co-defendant, Jane Roe was also sentenced to probation and community service. Unlike Ms. Roe,
however, Mr. Doe is now subject to a consequence above and beyond what was considered appropriate for a
shoplifting offense.
.
help.