Defendant appeals by leave granted the trial court’s order denying his motion for relief from the judgment. The issue on appeal is whether Padilla v Kentucky,
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 substance offenses under MCL 333.7401 and with possession of a firearm during the commission of a felony under MCL 750.227b. Defendant ultimately entered a no-contest plea to the charge of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(1) and (2)(d)(iii). At sentencing, the trial court stated to defendant, “[H]aving 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
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 when a guilty plea will render the defendant subject to automatic deportation. Padilla,
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 about immigration consequences. The court further determined that “ [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.”
II. ANALYSIS
A. STANDARD OF REVIEW
The issue whether a United States Supreme Court decision applies retroactively presents a question of law that we review de novo. People v Maxson,
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,
The federal circuits are split regarding whether Padilla announced a new
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.”). [United States v Hong,671 F3d 1147 , 1154-1155 (2011).]
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 v United States,
Given the narrow margin among our nation’s Supreme Court justices on this issue, the federal retroactivity analysis
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 Hong,
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,
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,
III. CONCLUSION
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 the judgment.
Affirmed.
Notes
Compare United States v Hong,
At least one district court in the Sixth Circuit has determined that Padilla did not create a new rule and is retroactive. United States v Reid,
The Padilla majority did not identify definitive precedent establishing that effective representation required immigration advice. Rather, the Padilla majority stated, “For 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.” Padilla,