Order Michigan Supreme Court
Lansing, Michigan
March 9, 2012 Robert P. Young, Jr.,
Chief Justice
142384 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
PEOPLE OF THE STATE OF MICHIGAN, Mary Beth Kelly
Plaintiff-Appellee, Brian K. Zahra,
Justices
v SC: 142384
COA: 301150
SAMBATH CHAN, Ottawa CC: 08-033005-FH
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 28, 2010
order of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
MARKMAN, J. (concurring). I concur in the order denying leave to appeal. In
2008, defendant, a noncitizen, pleaded guilty of breaking and entering and possession of
an explosive device with malicious intent. Subsequently, the United States Supreme
Court held that a criminal defense attorney must “advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration consequences.” Padilla v
Kentucky, 559 US ___; 130 S Ct 1473, 1483; 176 L Ed 2d 284 (2010). Later, in June
2010, defendant filed a motion for relief from judgment, alleging that his trial counsel
had provided ineffective assistance of counsel by failing to advise him of the immigration
consequences of his guilty plea. The trial court denied this motion, and the Court of
Appeals denied leave to appeal. In order to obtain relief, defendant must establish that he
was actually prejudiced by his counsel’s failure to advise him about the risk of adverse
immigration consequences. MCR 6.508(D)(3)(b); Padilla, 130 S Ct at 1483. Even
assuming that Padilla applies retroactively to this case, defendant has failed to present
any evidence that he was actually prejudiced by his trial counsel’s failure to advise him
concerning the risk of adverse immigration consequences. Although defendant filed an
affidavit with the trial court, he failed to include in the affidavit any averment that he
would not have pleaded guilty but for the lack of advice about possible deportation. In
addition, there is no evidence in the record concerning why the Department of Homeland
Security is investigating defendant for possible deportation. Therefore, I cannot conclude
that the trial court erred by denying defendant’s motion for relief from judgment.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 9, 2012 _________________________________________
h0306 Clerk