Michigan Supreme Court Lansing, Michigan

Bridget M. McCormack

,

Chief Justice

David F. Viviano,
Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement Megan K. Cavanagh,

Justices 

# Order

July 31, 2020

159617

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee,

v SC: 159617 COA: 347331 Van Buren CC: 2017

- 020932

- FC JOSE DANIEL ALONSO,

Defendant

- Appellant.

_________________________________________/

By order of September 10, 2019, the prosecuting attorney was directed to answer the application for leave to appeal the March 26, 2019 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave g ranted.

M C C ORMACK , C.J. ( concurring ).

I concur in the order remanding this case to the Court of Appeals as on leave granted. I respectfully disagree with Justice M ARKMAN that leave to appeal can be denied because the applicable immigration law was concl usively “neither succinct nor straightforward” in 2017. I agree with Justice M ARKMAN that the legal question is whether it is “truly clear” that assault with intent to commit great bodily harm less than murder (AWIGBH) constitutes a “crime of violence” un der 18 USC 16(a), and is therefore an “aggravated felony.” 8 USC 1101(a)(43)(F). “Crime of violence” is defined in 18 USC 16(a) as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or proper ty of another,” and 8 USC 1101(a)(43)(F) requires that the offense be one for which the term of imprisonment is “at least one year.”

As for the term of imprisonment, Shaya v Holder , 586 F3d 401, 403 (CA 6, 2009), provides:2

[F]or the purposes of Section 1101(a)(43)(F), indeterminate prison sentences in Michigan must be measured by the term actually served by the petitioner rather than by the maximum statutory sentence.

. . . Thus, when using Michigan indeterminate sentences as the predicate for classifyi ng someone as an “aggravated felon”, the term must be measured by the sentence actually served or the minimum sentence given, whichever is
greater

. . . .

Here, the trial court imposed a minimum sentence of five years, which is clearly “at least

one year. ” So 8 USC 1101(a)(43)(F) is satisfied.

As for 18 USC 16(a), the elements of AWIGBH, MCL 750.84(1)(a), are “(1) an assault, i.e., ‘ an attempt or offer with force and violence to do corporal hurt to another’ coupled with (2) a specific intent to do great bodily harm less than murder.” People v Bailey , 451 Mich 657, 668

- 669 (1996), quoting People v Smith , 217 Mich 669, 673 (1922). Thus, the remaining question is whether “an assault, i.e., ‘an attempt or offer with force and violence to do corporal hurt to another,’ ” is clearly “the use, attempted use, or threatened use of physical force against the property or person of another.” If so, defense counsel performed ineffectively by only informing the defendant that he “might” be subject to deportation; if n ot, he didn’t. I think this issue merits further review, and I therefore support the Court’s decision to remand this case to the Court of Appeals. 1

C LEMENT , J. ( concurring )

I concur in the Court’s remand to the Court of Appeals. But I write separately to note that I do so because I believe the Court of Appeals should address these issues before this Court does. The Court of Appeals denied leave to appeal for lack of merit in the grounds presented, and this Court remands this case to the Court of Appea ls as on leave granted because it is persuaded that the Court of Appeals should address defendant’s arguments. This Court should generally refrain from addressing the merits of a case before the Court of Appeals has addressed them.

M ARKMAN , J., ( dissen ting ).

In Padilla v Kentucky , 559 US 356, 369 (2010), the United States Supreme Court recognized that “[i]mmigration law can be complex,” “it is a legal specialty of its own,” some criminal defense attorneys “may not be well versed in it,” and “there will

. . . be

1 I agree with Justice M ARKMAN that the law surrounding 18 USC 16(b) has been in significant flux in recent years. But because I view this case as a straightforward question of the interaction between MCL 750.84(1)(a) and 18 USC 16(a), I do not share his belief that that uncertainty is relevant to analyzing the legal issue presented here.3

numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.” As a result, when the law regarding deportation consequences “is not succinct and straightforward,” a criminal defense attorney advising a defendant about the benefits and detractions of accepting a plea agreement “need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id . However, “when the deportation consequenc e is truly clear,

. . . the duty to give correct advice is equally clear,” and the attorney may be required to advise the defendant that a guilty plea will result in deportation. Id

.

Defendant here pleaded guilty to assault with intent to commit great bo dily harm less than murder (AWIGBH) after receiving advice from counsel that he “might” face immigration consequences, including deportation, as a result of his guilty plea. Defendant, relying exclusively on Shaya v Holder , 586 F3d 401 (CA 6, 2009), now

a rgues that his deportation following an AWIGBH conviction was virtually certain such that his counsel rendered ineffective assistance by merely advising that he “might” face deportation. Defendant, however, overlooks discussion not only by the Sixth Circu it in Shaya , but also by the Sixth Circuit and the United States Supreme Court in post

- Shaya decisions. In particular, defendant overlooks a decision by the Sixth Circuit that (a) substantially altered immigration law governing when a state conviction man dates deportation, and (b) controlled how an immigration judge must view defendant’s AWIGBH conviction in the course of his deportation proceeding. Accordingly, I believe that defendant’s argument regarding ineffective assistance of counsel is without mer it, and I respectfully dissent from this Court’s order remanding to our Court of Appeals for

further consideration.

This case centers on whether at the time of his August 2017 plea it was “truly clear” that defendant was ineligible for “cancellation of re moval” if he pleaded guilty to AWIGBH. An alien convicted of a felony may be deportable. 8 USC 1227(a)(2). And if the alien is deportable, an order of “removal” will issue, but based upon certain circumstances specific to the alien and his offense, the Attorney General possesses the discretion to “cancel” this order. 8 USC 1229b. Relevant to defendant, under 8 USC 1228(a)(3), an alien convicted of an “aggravated felony” is ineligible for cancellation of removal. In turn, 8 USC 1101(a)(43)(F) defines “ aggravated felony” to be “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year[.]” Defendant’s plea agreement

called for a 5

- to 15

- year sentence ; thus, if it was certain that AWIGBH constituted a “crime of violence,” and hence an “aggravated felony,” then it was certain that defendant was not eligible for cancellation of removal.

Section 16 of Title 18 states that a “crime of violence” is

(a) a n offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or4

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force again st the person or property of another may be used in the course of committing the offense . [18 USC 16 (emphasis added).]

At the time of defendant’s plea, the constitutionality of subsection (b), particularly the emphasized language, was in considerable do ubt. In 2015, the United States Supreme Court, in Johnson v United States , 576 US ___; 135 S Ct 2551 (2015), had held that the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another,” in the related definit ion of “violent felony” in the Armed Career Criminal Act, see 18 USC 924(e)(2)(B)(ii), was unconstitutionally vague. Following

Johnson , aliens seeking to avoid mandatory deportation under 8 USC 1229(a)(3) and 8 USC 1101(a)(43)(F) challenged the constituti onality of 18 USC 16(b). Federal circuit courts were split regarding the issue, with the Sixth Circuit ruling that § 16(b) was

unconstitutional. 2 Compare Shuti v Lynch , 828 F3d 440 (CA 6, 2016); United States v

Vivas

- Ceja , 808 F3d 719 (CA 7, 2015); and D imaya v Lynch , 803 F3d 1110 (CA 2, 2015) (holding § 16(b) unconstitutionally vague), with United States v Gonzalez

- Longoria , 831 F3d 670 (CA 5, 2016), vacated 138 S Ct 2668 (2018) (upholding constitutionality of § 16(b)). Therefore, in August 2017, an off ense against the law of Michigan only qualified as an “aggravated felony” if it satisfied the definition of “crime of violence” set forth by 18 USC 16(a).

As a result, for defendant to establish that it was “truly clear,” “succinct,” and “straightforward” that AWIGBH constituted an “aggravated felony,” he needed to identify settled law holding that AWIGBH fell within the definition of “crime of

violence” in § 16(a). Shaya , the case on which defendant relies in this regard, makes no mention of 18 USC 16(a). Indeed, given that the defendant in Shaya did not dispute that AWIGBH constituted a “crime of violence,” Shaya merely assumed that AWIGBH

constituted an “aggravated felony” without ever analyzing how the elements of AWIGBH compared to the definitions of “crime of violence” provided by either § 16(a) or § 16(b). See Shaya , 586 F3d at 405 n 1. And while Shaya’s concession may have been reasonable in 2009, before the much broader § 16(b) definition faced constitutional scrutiny, it no longer remained an obvious or reasonable concession after Johnson and

Shuti . Evidence of this, as highlighted by the attached appendix, is the fact that other offenses classified as “crimes of violence” and “aggravated felonies” before Johnson , and before the invalidation of § 16(b), have no longer qualified as such. Included a mong those offenses are the serious felonies of federal second

- degree murder, federal

2 In Sessions v Dimaya , 584 US ___; 138 S Ct 1204 (2018), the United States Supreme Court adopted the Sixth Circuit’ s views. In light of the fact that Dimaya was decided after defendant pleaded guilty, however, I rely upon Shuti , and not Dimaya , in analyzing defendant’s argument.5

kidnapping, and Florida aggravated battery with a firearm. Thus, when counsel in the instant case advised defendant as to the relative costs and benefits of pleading gui lty to AWIGBH, it was an open question whether AWIGBH constituted a “crime of violence” and thus an “aggravated felony.” This is in considerable contrast with Padilla , wherein counsel merely needed to read a single and unambiguous statutory provision to d etermine that the defendant in that case faced mandatory deportation. Padilla , 559 US at 368 (“Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresse s not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.”).

Under Padilla , therefore, if it was possible that defendant was eligible for “cancellation of removal,” or if the legal framework for determining his eligibility for such consideration was “not succinct and straightforward,” counsel had no greater duty

than to advise defendant that he might face immigration consequences as a r esult of his guilty plea. That is, when counsel advised defendant about the plea agreement, the law controlling the definitions of both “aggravated felony” and “crime of violence” was in significant flux. Furthermore, no statute or caselaw established th at AWIGBH qualified as a “crime of violence” under § 16(a), the only provision in the definition of “crime of

violence” that survived Shuti . As a result, unlike in Padilla , there was no single legal source to which counsel could have turned to quickly, or authoritatively, or certainly, determine that AWIGBH constituted an “aggravated felony” that would render him ineligible for “cancellation of removal.” 3 Accordingly, because the law was unsettled in this manner and neither succinct nor straightforward, d efense counsel satisfied his legal obligations under Padilla by advising defendant that an AWIGBH conviction “might” result in immigration consequences, including deportation. This conclusion is altogether consistent with decisions from other jurisdiction s that have relied on Johnson and/or

Shuti to reject claims of ineffective assistance of counsel because these cases sufficiently unsettled the law surrounding the definition of “crime of violence” and thus made it uncertain whether a given offense remaine d an “aggravated felony” that mandated deportation. See, e.g., Tindi v State , unpublished opinion of the Minnesota Court of

3 Chief Justice M C C ORMACK suggests that if an “assault” for purposes of AWIGBH satisfies § 16(a), then counsel performed deficiently by advising defendant that he “might” face deportation. However, this is but one of three necessary questions for consideration on remand, the other s being: (a) whether the process required to determine whether an “assault” for purposes of AWIGBH satisfies § 16(a) constitutes an undertaking in which a criminal defense attorney in a state criminal proceeding is expected to engage pursuant to Padilla , a nd (b) whether, if counsel did perform deficiently, defendant has established prejudice as a result in that he would not have accepted the plea had he received different advice concerning the possible immigration implications of his plea.6

Appeals, issued December 11, 2017 (Docket No. A17

- 0724), p 11 (citing Johnson and
the Ninth Circuit’s decision in Dimaya to conclud e it was “not truly clear” that the

defendant’s fourth

- degree criminal

- sexual

- conduct conviction was a “crime of violence” that would mandate deportation); State v Taveras , 2017

- Ohio

- 1496, ¶ 29 (Ohio App, 2017) (rejecting the defendant’s ineffective

- assist ance

- of

- counsel claim based on counsel’s failure to advise the defendant that deportation was mandatory because it was “not ‘truly clear’ ” that the defendant’s offense was a “crime of violence” after Shuti invalidated § 16(b)). Therefore, I respectfully dissent from the Court’s order remanding to the Court of Appeals for further consideration and instead would simply deny leave to appeal.

APPENDIX

The cases below are illustrative of those involving offenses that do not, or may no longer, qualify as “cri mes of violence” and “aggravated felonies” following the invalidation of 18 USC 16(b) by Shuti

.

1. Third

- degree burglary, in violation of Conn Gen Stat 53a

- 103. See Genego v

Barr , 922 F3d 499, 501

- 502 (CA 2, 2019) (reversing a Board of Immigration Appea ls decision holding that the offense was an “aggravated felony” because it was a “crime of violence” under § 16(b)).

2. Robbery, in violation of Cal Penal Code 211. See United States v Garcia

Lopez , 903 F3d 887, 892

- 893 (CA 9, 2018) (noting that “[w]ith out § 16(b), the Government’s indictment and the April 15 removal order can only stand if California robbery constitutes a ‘crime of violence’ pursuant to § 16(a)” and concluding that “California robbery” is not categorically a “crime of violence” under § 16(a)).

3. Rape of a spouse, in violation of Cal Penal Code 262. See United States v

Canales

- Bonilla , 735 F Appx 154, 155 (CA 5, 2018) (accepting the government’s

concession “that Dimaya precludes the classification of Canales

- Bonilla’s prior

conviction as an aggravated felony under § 16(b) as incorporated into § 1326(b)(2) through § 1101(a)(43)(F)” and concluding that the offense does not qualify as an “aggravated felony” under any other provision of the Immigration and Nationality Act, 8

USC 1101 et seq .).

4. Aggravated battery with a firearm, in violation of Fla Stat 784.045(1), 775.087(2). See Lukaj v United States Attorney General , 763 F Appx 826, 830 (CA 11, 2019) (recognizing that “[b]ecause the Supreme Court invalidated section 16(b), that provisio n cannot serve as the basis for classifying Lukaj’s conviction as a crime of violence and as an aggravated felony that makes him ineligible for relief from removal” and remanding to the Board of Immigration Appeals to determine whether the offense7

preclu ded cancellation of removal under any other provision of the Immigration and Nationality Act).

5. Aggravated child abuse, in violation of Fla Stat 827.03(2)(a). See Villalobos v United States Attorney General , 739 F Appx 947, 951

- 952 (CA 11, 2018) (hold ing that “[b]ecause Dimaya declared void for vagueness the statutory provision used to classify Villalobos’s conviction as an aggravated felony, we grant the part of Villalobos’s petition that challenges the denial of his application for cancellation of re moval” and remanding for the Board of Immigration Appeals to determine whether the offense satisfied § 16(a)).

6. False imprisonment, in violation of Ga Code Ann 16

- 5

- 41. See In re Luis
Alexander Alvarez Sian , unpublished decision of the Board of Immigr ation Appeals, decided July 13, 2018 (File No. AXX XX5 149) (ordering that where offense did not qualify as “crime of violence” under § 16(a), the proceeding to remove the defendant be terminated following the Supreme Court’s invalidating § 16(b)).

7. Bu rglary of a habitation, in violation of Tex Penal Code Ann 30.01, 30.02. See
United States v Cruz , 739 F Appx 261, 261 (CA 5, 2018) (recognizing the parties’ concession that “in light of Dimaya ’s invalidation of § 16(b), Cruz’s prior Texas

conviction for burglary of a habitation does not constitute an aggravated felony

. . . .”).

8. Second

- degree murder, in violation of 18 USC 1111. See United States v Begay , 934 F3d 1033, 1041 (CA 9, 2019) (holding, within the context of a charge under

18 USC 924(c)(3), that the offense no longer qualifies as a “crime of violence” under analog to § 16(b) and does not qualify as a “crime of violence” under analog to § 16(a)).

9. Kidnapping, in violation of 18 USC 1201(a)(1). See United States v Campbell

, 783 F Appx 311, 312 (CA 4, 2019) (recognizing that federal kidnapping is not a “crime of violence” for purposes of conviction under 18 USC 924(c)(3)); see also United States v

Walker , 934 F3d 375, 378

- 379 (CA4, 2019) (same).

10. Conspiracy to commit Hobbs A ct robbery, in violation of 18 USC 1951. See

United States v Biba , 788 F Appx 70, 71

- 72 (CA 2, 2019) (recognizing that federal conspiracy to commit Hobbs Act robbery is not a “crime of violence” for purposes of

convi ction under 18 USC 924(c)(3)).

11. Conspiracy to commit assault with a dangerous weapon, in violation of 18 USC 1959(a)(6). See Quinteros v United States Attorney General , 945 F3d 772, 783 (CA 3, 2019) (recognizing that “[b]ecause the Supreme Court found that § 16(b) wasI, Larry S. Royster, 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.

July 31, 2020

s0728 8

Clerk unconstitutionally vague, the [immigration judge’s] aggravated felony finding based on § 16(b) cannot stand” and determining in the first instance that the offense does not qualify as a “crime of violence” under § 16(a)).