People v. Davidovich

618 N.W.2d 579, 463 Mich. 446
CourtMichigan Supreme Court
DecidedOctober 31, 2000
DocketDocket 115871
StatusPublished
Cited by18 cases

This text of 618 N.W.2d 579 (People v. Davidovich) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Davidovich, 618 N.W.2d 579, 463 Mich. 446 (Mich. 2000).

Opinions

Per Curiam.

The defendant, a foreign citizen, pleaded guilty of a drug offense. After sentencing, he persuaded the circuit court to permit him to withdraw the plea on the ground that he had not understood that his plea would place him in jeopardy of deportation. The Court of Appeals reversed on the grounds that immigration consequences are collateral matters, and that failure to appreciate those consequences does not render a plea unknowing or involuntary. We affirm the judgment of the Court of Appeals.

i

In 1997, the defendant was charged with possession of marijuana with intent to deliver.1 He pleaded guilty [448]*448in circuit court to a reduced charge of attempted possession with intent to deliver.2

At sentencing, the court was presented with a presentence report that described the defendant as “an Israeli citizen in the United States on a Non-Immigrant Visa.” In light of that status, the court and the assistant prosecutor had this exchange:

The Court: Mr. Prosecutor, do you have anything to say in regard to sentencing?
[Assistant Prosecutor]: Your Honor, the Defendant has one prior, I believe, it was in 1991, this case involved the Drug Enforcement Agency in regard to narcotic sales. I don’t know exactly what the status of the Defendant is or whether or not he should be in the country. The Court might want to address it.
The Court: I don’t want to address it.
[Assistant Prosecutor]: He is in the country illegally committing crimes.
The Court: Mr. Davidovich, do you want to say anything in your behalf? You don’t have to.
The Defendant: I feel really bad about what I did, but I don’t think I’m illegally in this country . . .
The Court: I don’t want to get into that. It is not within my Jurisdiction. There may be an immigration question, but somebody will address that question at some point, but I won’t.

The court then imposed a one-year term of probation, with various conditions.

Two months after sentencing, the defendant filed a “motion for new trial,” in which he reported that he had been “placed under arrest immediately after sentencing, by the U.S. of Immigration and Naturalization Service.” He alleged that his “absence of knowledge [449]*449as to the immigration consequences of his plea left his plea unimowing and involuntary.” Further, he alleged that he had been denied effective assistance of counsel, when his attorney failed to explain “the immigration consequences of a guilty plea.”

After hearing argument on the defendant’s motion, the circuit court ruled:

I think that equity will dictate that I allow this gentleman to withdraw his plea.

Asked whether it was finding ineffective assistance of counsel, the court added:

I won’t make a finding that he is ineffective. I won’t get into that point.

On those bases, the court granted the defendant’s motion, and set aside the plea.

The Court of Appeals granted the prosecuting attorney’s application for leave to appeal3 and reversed the circuit court order. 238 Mich App 422; 606 NW2d 387 (1999).4

The defendant has applied to this Court for leave to appeal.

ii

In reversing the order of the circuit court, the Court of Appeals distinguished between the “direct” and “collateral” consequences of a plea-based conviction, characterizing immigration consequences as col[450]*450lateral. 238 Mich App 427-431. It said that “[a] defendant’s ignorance of the collateral consequences of a plea does not render the plea involuntary” and that “[c]ounsel’s failure to properly advise of collateral consequences of a plea does not bear on whether a defendant properly understood the decision to plead guilty to the charges in question.” 238 Mich App 428.

Thus, continued the Court of Appeals, “We have found no authority that holds collateral consequences should be considered in allowing a defendant to withdraw his guilty plea after having been sentenced.” 238 Mich App 430. The Court further explained:

We realize deportation is a much more severe sanction than the defendant anticipated receiving, and defendant’s motion to withdraw his plea carries a certain intuitive appeal. One might argue that defendant should only face such a severe sanction after the prosecution has been forced to prove all the elements of the offense. This argument is likely what the trial court had in mind when it claimed that “equity” required that defendant be allowed to withdraw his plea. We disagree. We find it noteworthy that defendant has not asserted his innocence. The immigration consequences of the charged offense are irrelevant to defendant’s guilt. Here, defendant simply hopes that by withdrawing his plea he might somehow escape conviction of a crime to which he has already confessed. However, defendant cannot withdraw his plea simply because he would now rather risk the uncertainties of a trial, hopeful that he can stall or eventually avoid deportation.
To the extent that the trial court might be trying to save defendant from deportation, its efforts are misguided. The Congress, through its legislation, decides which crimes merit deportation. As we discussed above, deportation is a collateral consequence of defendant’s conviction. It is the fulfillment of a federal immigration policy, and it is unrelated to the trial court’s inquiry. The trial court’s only concern is whether defendant committed the charged crime [451]*451and whether the plea was entered knowingly and voluntarily. Trial courts should not attempt to aid defendants in circumventing the deportation process because they believe deportation is too harsh a consequence for the crime committed. Those sorts of considerations belong to the Immigration and Naturalization Service, its administrative courts, and the federal court system. [238 Mich App 430-431.]

The Court of Appeals also discussed prior appellate decisions, including People v Kadadu, 169 Mich App 278; 425 NW2d 784 (1988) and People v Osaghae (On Reconsideration), 460 Mich 529; 596 NW2d 911 (1999). Each involved deportation as a consequence of a guilty plea. In Kadadu, the Court of Appeals allowed the circuit court to follow the path that appeared “more equitable” to it:

As indicated earlier, a motion to withdraw a guilty plea is addressed to the sound discretion of the trial court. Applying this standard, we feel that the trial court did not abuse its discretion in allowing defendant to withdraw his guilty plea. The court listened to both parties’ arguments and decided that it would be more equitable to allow defendant to go to trial before suffering the extreme consequences of deportation. Having presided at defendant’s guilty plea hearing, the trial judge was in a better position to know the circumstances of the crime to which defendant pled guilty than we are.

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People v. Davidovich
618 N.W.2d 579 (Michigan Supreme Court, 2000)

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618 N.W.2d 579, 463 Mich. 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-davidovich-mich-2000.