People v. Gomez
ISAAC ALVAREZ GOMEZ, Defendant-Appellant.
Court of Appeals of Michigan.
Before: SAWYER, P.J., and O'CONNELL and RONAYNE KRAUSE, JJ.
Defendant appeals by leave the trial court's order denying his motion for relief from judgment. The issue on appeal is whether Padilla v Kentucky, ___ US ___; 130 S Ct 1473; 176 L Ed 2d 284 (2010), applies retroactively to allow defendant to avoid the potential immigration consequences of his plea-based conviction. We hold that the new rule of criminal procedure announced in Padilla has prospective application only. Accordingly, we affirm the trial court's order.
I. FACTS AND PROCEDURAL HISTORY
Defendant, a citizen of Mexico, has lived much of his life in the United States as a permanent resident. In 2001, the Branch County prosecutor charged defendant with two controlled substances offenses under MCL 333.7401, and with possession of a firearm during commission of a felony under MCL 750.227b. Defendant ultimately entered a no-contest plea to possession with intent to deliver marijuana, MCL 333.7401(2)(D)(3). At sentencing, the trial court stated to defendant, "having gone through the presentence report, you certainly have demonstrated otherwise in your life that you are an intelligent, hard working individual. And it's unfortunate that you are standing here under these circumstances. Hopefully this will be a single aberration in your otherwise blemish-less life." The court sentenced defendant to 120 days imprisonment, with work release permitted. Defendant served a 24-month probation term and was discharged in 2005.
Four years later, the federal Department of Homeland Security notified defendant that his conviction rendered him subject to deportation. The following year, the United States Supreme Court issued the Padilla decision, which held that criminal defense counsel must advise a defendant that a guilty plea will render the defendant subject to automatic deportation. ___ US at ___; 130 S Ct at 1478. Shortly after the Supreme Court issued Padilla, defendant moved for relief from judgment in the trial court. Defendant asserted that neither defense counsel nor the trial court ever asked him about his immigration or citizenship status. He further asserted that if he had been told that his plea would affect his immigration status, he would not have entered the plea and would instead have gone to trial on the charges. He argued that his counsel was ineffective under Padilla, and that the trial court should set aside his conviction.
The trial court denied defendant's motion for relief. The court determined that nothing in the Padilla decision required retroactive application of the new rule regarding advice on immigration. The court further determined, "[t]o retroactively apply the Padilla ruling and cause all cases to be later dismissed due to no longer having State's evidence or to have to recreate such investigation is not the intent of the Padilla decision."
A. STANDARD OF REVIEW
The issue of whether a Supreme Court decision applies retroactively presents a question of law that we review de novo. People v Maxson, 482 Mich 385, 387; 759 NW2d 817 (2008). We review the trial court's ultimate ruling on a motion for relief from judgment for abuse of discretion. People v Swain, 288 Mich App 609, 628; 794 NW2d 92 (2010).
B. RETROACTIVITY UNDER FEDERAL LAW
Defendant's conviction became final when the time for a direct appeal expired, which was several years before the Supreme Court issued Padilla. See Beard v Banks, 542 US 406, 411; 124 S Ct 2504; 159 L Ed 2d 494 (2004) (convictions are final when availability of direct appeal has been exhausted and the time for filing a petition for a writ of certiorari has expired). Given that his conviction is final, defendant is entitled to relief only if a retroactive change in the law alters the validity of his conviction. See generally MCR 6.500 et seq. To determine whether a retroactive change can alter a conviction, the federal courts use the analysis described in Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989). Under Teague, a new rule of criminal procedure generally cannot be applied retroactively to alter a final judgment. 489 US at 310. Accordingly, the first step in the Teague analysis is to determine whether the rule at issue constitutes a new rule. Maxson, 482 Mich at 388. A procedural rule is new unless it is "dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 US at 301.
The federal circuits are split regarding whether Padilla announced a new rule. The Sixth Circuit Court of Appeals has not ruled on the issue, but has denied relief from judgment in a Padilla challenge, on the ground that the defendant failed to establish prejudice. Pilla v United States, ___ F 3d ___; 2012 WL 360449, *3 (February 6, 2012). An examination of the Padilla decision itself, however, indicates that neither the bench nor the bar could have forecast that the pre-Padilla precedent dictated an advisement of the immigration consequences of a guilty plea. The two concurring justices used pellucid phrasing to characterize the new rule, terming the rule a "dramatic departure," a "major upheaval," and a "dramatic expansion of the scope of criminal defense counsel's duties." ___ US ___; 130 S Ct at 1488, 1491, 1492. The Tenth Circuit Court of Appeals aptly described the concurring and dissenting justices' views:
In a concurrence, Justice Alito (joined by Chief Justice Roberts) stated "the Court's decision marks a major upheaval in Sixth Amendment law" and noted the majority failed to cite any precedent for the premise that a defense counsel's failure to provide advice concerning the immigration consequences of a criminal conviction violated a defendant's right to counsel. Padilla, 130 S.Ct. at 1491 (Alito, J., concurring in judgment); see also id. at 1488 (noting the majority's "dramatic departure from precedent"); id. at 1491 ("[T]he Court's view has been rejected by every Federal Court of Appeals to have considered the issue thus far."); id. at 1492 ("The majority seeks to downplay its dramatic expansion of the scope of criminal defense counsel's duties under the Sixth Amendment.").
Similarly, Justice Scalia in a dissent (joined by Justice Thomas), argued the Sixth Amendment right to counsel does not extend to "advice about the collateral consequences of conviction" and that the Court, until Padilla, had limited the Sixth Amendment to advice directly related to defense against criminal prosecutions. Id. at 1494-95 (Scalia, J., dissenting); see also id. at 1495 ("There is no basis in text or in principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand."). [2011 WL 3805763, *6.]
Correspondingly, the Seventh Circuit determined that the disagreement among the justices demonstrated that Padilla established a new rule (otherwise, the justices would have reached some accord on the basic principle). Chaidez, 655 F3d 684, 689-690.
Given the narrow margin among our nation's Supreme Court justices on this issue, the federal retroactivity analysis indicates that Padilla established a new procedural rule. This new rule is not retroactive, unless one of two exceptions to nonretroactivity applies: (1) the rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," or (2) the rule "requires the observance of those procedures that . . . are implicit in the concept of ordered liberty." Teague, 489 US at 307 (citations and internal quotation marks omitted); see also Maxson, 482 Mich at 388.
Neither of the two exceptions applies here. The requirement that criminal defense counsel advise defendants of immigration consequences does not regulate private conduct, nor is the requirement so implicit in the structure of criminal proceedings that retroactivity is mandated. Accord, Chang Hong, 2011 WL 380763, *9. Rather, the requirement applies to a subset of criminal defendants who may wish to consider immigration consequences as part of the many variables they will assess when deciding whether to enter a plea. Therefore, we conclude that federal precedent does not require retroactive application of the new Padilla rule.
C. RETROACTIVITY UNDER MICHIGAN LAW
Despite the lack of retroactivity under the federal analysis, this Court could nonetheless apply Padilla retroactively in this case. "A state may accord broader effect to a new rule of criminal procedure than federal retroactivity jurisprudence accords." Maxson, 482 Mich at 392. We decline to broaden the applicability of Padilla for two reasons. First, the pre-Padilla Michigan precedent expressly stated that "a failure by counsel to give immigration advice does not render defense counsel's representation constitutionally ineffective." People v Davidovich, 463 Mich 446, 453; 618 NW2d 579 (2000) (emphasis added). To apply Padilla retroactively would be to allow any offender to negate the acknowledgement of guilt merely by asserting a potential immigration issue. Nothing in the Michigan precedent allows withdrawal of guilty pleas in this manner.
Second, the Michigan retroactivity analysis mandates that Padilla be applied prospectively only. Three factors govern the Michigan retroactivity analysis: "(1) the purpose of the new rules; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice." Maxson, 482 Mich at 393, quoting People v Sexton, 458 Mich 43, 60-61; 580 NW2d 404 (1998), cert den Young v Michigan, 525 US 1126; 119 S Ct 912; 142 L Ed 2d 909 (1999). In Maxson, our Supreme Court held that these factors precluded retroactive application of a new procedural rule that affected appeals from guilty pleas. Id. at 393-399. Like the rule held to be prospective in Maxson, the Padilla rule cannot reasonably be deemed to require retroactive application.
In sum, we hold that both the federal analysis and the Michigan analysis require that the new rule of criminal procedure announced in Padilla be applied prospectively only. Accordingly, the trial court was within its discretion in denying defendant's motion for relief from judgment.
 Compare United States v Chang Hong, ___ F3d ___, 2011 WL 3805763, at *1 (CA 10, August 30, 2011) (Padilla announced new rule), and Chaidez v United States, 655 F 3d 684, 694 (CA 7, 2011) (same) (petition for cert filed December 23, 2011), with United States v Orocio, 645 F 3d 630, 641 (CA 3, 2011) (Padilla stated an old rule and is retroactive).
 At least one Sixth Circuit district court has determined that Padilla did not create a new rule and is retroactive. United States v Reid, 2011 WL 3417235, *4 (SD Ohio, August 4, 2011).
 The Padilla majority did not identify definitive precedent to establish that effective representation required immigration advice. Rather, the Padilla majority stated "[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea." In our view, "professional norms" do not amount to precedent that dictates a result within the meaning of Teague, 489 US at 301.