Michigan Court of Appeals punts on Padilla

People v. Zak, No. 298441 (Mich. Ct. App. Dec. 6, 2011) (unpublished).

The defendant appealed the denial of his Padilla motion to set aside his plea, in Oakland County Circuit Court.  The Michigan Court of Appeals remanded for an evidentiary hearing.  The circuit court erred by favoring unsupported assertions in the People's brief over the defendant's affidavit.  The proper course of action would have been to hold an evidentiary hearing.

 On appeal, the People argued for the first time that Padilla is not retroactive.  While noting that this is an open question in Michigan, the Court of Appeals declined to address this and instead instructed the trial court to consider this on remand.