PEOPLE OF MI V AMRO IMADTALIB ZAK (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 26, 2012
Plaintiff-Appellee,
v
No. 298441
Oakland Circuit Court
LC No. 2008-223588-FH
AMRO IMADTALIB ZAK,
Defendant-Appellant.
AFTER REMAND
Before: SERVITTO, P.J., and MARKEY and K. F. KELLY, JJ.
PER CURIAM.
Defendant appeals by leave granted the trial court’s denial of his motion to set aside his
guilty plea. Defendant was convicted, by guilty plea, of possession of a controlled substance,
MCL 333.7403(2)(b)(ii), and possession of marihuana, MCL 333.7403(2)(d). He was sentenced
to two years probation on each count. We affirm.
This case comes to us after this Court's remand to the trial court for an
evidentiary/Ginther1 hearing to determine whether trial counsel provided any advice to defendant
regarding the possible immigration consequences of a plea. In this Court's prior opinion ordering
the remand,2 we explained the facts as follows:
Defendant is a 21-year old citizen of Jordan and during the trial court
proceedings was residing with his family in the United States. After pleading
guilty as charged in the instant matter, defendant was placed on probation
pursuant to MCL 333.7411. Defendant violated his probation on two occasions
and, on each occasion, plead guilty to the violations. His plea on the second
violation led to the revocation of his probation. At some point after he entered his
guilty plea to the original charges, deportation proceedings were initiated against
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
People v Zak, unpublished opinion per curiam of the Court of Appeals, issued December 6,
2011 (Docket No. 298441).
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defendant. On May 5, 2010, defendant moved to set aside his plea of guilty to the
original charges based upon his counsel’s failure to advise him that his plea could
subject him to deportation proceedings. According to defendant, the recent
decision of Padilla v Kentucky, ___ US ___; 130 S Ct 1473; 176 L Ed 2d 284
(2010), in which the United States Supreme Court held that a defense counsel’s
failure to advise his client that his guilty plea made him subject to automatic
deportation amounted to ineffective assistance of counsel, was retroactively
applicable to defendant’s case. As such, defendant argued he must be allowed to
withdraw his plea. The trial court denied defendant’s motion, for reasons
discussed below. This Court granted leave to appeal the trial court’s decision.
Defendant specifically argued that counsel failed to advise him of the immigration consequences
of his plea which rendered him ineffective, as indicated in Padilla v Kentucky. Defendant further
contended that the retroactive application of Padilla required that he be allowed to withdraw his
guilty plea. While defendant properly supported his assertions with an affidavit, the prosecutor
merely cited information in a brief that he purportedly obtained in a conversation with
defendant’s original attorney. The trial court denied defendant’s motion, discrediting
defendant’s sworn affidavit in favor of unsupported factual assertions made in a brief. We found
the same to be an abuse of discretion and thus remanded the matter to the trial court for an
evidentiary hearing to determine whether, in fact, defense counsel provided any advice to
defendant regarding the immigration consequences of his plea. The trial court has conducted an
evidentiary hearing and issued an opinion, consistent with our remand order.
In the interim, a panel of this Court decided the matter of People v Gomez, __ Mich App
__; __ NW2d __ (2012). In that case, it was announced that “Padilla established a new
procedural rule” and thus “is not retroactive.” Because defendant’s conviction was final3 before
Padilla was decided, absent retroactive application of Padilla, defendant is not entitled to relief,
regardless of any factual record presented to this Court. Given the Gomez Court’s holding that
Padilla is to be given prospective application only, defendant is therefore not entitled to the relief
sought.
Affirmed.
/s/ Deborah A. Servitto
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
3
In arguing that Padilla should be held to be retroactive to his case, defendant implicitly
acknowledges that his convictions were final at the time the Supreme Court decided Padilla. He
does not argue, for example, that his “7411 status” affected the finality of his convictions for the
purposes of determining whether Padilla applied to his convictions.
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