Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  September 28, 2012                                                                 Robert P. Young, Jr.,
                                                                                               Chief Justice

  144620                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
                                                                                         Brian K. Zahra,
                                                                                                    Justices
  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellee,
  v                                                       SC: 144620
                                                          COA: 301243
                                                          Jackson CC: 09-005864-FC
  KYLE ALEXANDER YBARRA,
           Defendant-Appellant.

  ____________________________________/

        On order of the Court, the application for leave to appeal the December 13, 2011
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         ZAHRA, J. (concurring).

         I concur in this Court’s order denying leave to appeal in this matter. I write
  separately to address defendant’s argument that he should be allowed to create an
  evidentiary record to support his claim of ineffective assistance of counsel.

         Following his jury conviction for armed robbery, defendant filed an appeal of right
  in the Court of Appeals and moved to remand for an evidentiary hearing on ineffective
  assistance of counsel. He appended to his motion a signed but unnotarized statement,
  asserting that his trial counsel had failed to inform him of the difference between the
  potential sentencing guidelines recommendation for his jury trial convictions on the three
  offenses charged and the more favorable sentencing guidelines recommendation if he had
  accepted the offer to plead guilty to only one offense. He claimed that if his trial counsel
  had so informed him, then he would have accepted the plea offer. The Court of Appeals
  denied the motion to remand “for failure to satisfy the requirements of MCR
  7.211(C)(1).” 1

         The Court of Appeals subsequently issued an unpublished opinion per curiam,
  affirming defendant’s convictions and sentences. 2 In addressing defendant’s ineffective-
  assistance claim on the plea-agreement issue, the Court of Appeals recognized that a

  1
    People v Ybarra, unpublished order of the Court of Appeals, entered July 12, 2011
  (Docket No. 301243).
  2
   People v Ybarra, unpublished opinion per curiam of the Court of Appeals, issued
  December 13, 2011 (Docket No. 301243).
                                                                                             2

defense attorney’s failure to inform a defendant of the sentencing consequences if the
defendant is convicted at trial as opposed to those of accepting a guilty plea can be the
basis of an ineffective-assistance-of-counsel claim. 3 However, the Court of Appeals
rejected defendant’s claim, stating that

         defense counsel was not ineffective as there is nothing in the record to
         show that defense counsel failed to inform [defendant] of the sentencing
         consequences. Because [defendant] has not established the factual
         predicate for his claim, he has not shown that trial counsel’s performance
         fell below an objective standard of reasonableness.[4]

Defendant then sought leave to appeal in this Court.

        MCR 7.211(C)(1) states that a motion to remand “must be supported by affidavit
or offer of proof regarding the facts to be established at a hearing.” An offer of proof is
“[a] presentation of evidence for the record . . . .” 5 An affidavit is defined as “[a] written
or printed declaration or statement of facts, made voluntarily, and confirmed by the oath
or affirmation of the party making it, taken before a person having authority to administer
such oath or affirmation.” 6

        Although titled an “affidavit,” defendant’s unnotarized statement fails to meet the
procedural requirements of MCR 7.211(C)(1). That is, not being notarized or otherwise
having been taken before a person having authority to administer an oath or affirmation,
the document carries no more weight than a letter outlining defendant’s complaints about
his trial counsel. And as such, defendant failed to make a sufficient offer of proof of the
evidence to be established at a hearing.




3
    Ybarra, unpub op at 3, citing People v McCauley, 287 Mich App 158, 162 (2010).
4
    Ybarra, unpub op at 3 (citations omitted).
5
    Black’s Law Dictionary (7th ed).
6
    Black’s Law Dictionary (6th ed).
                                                                                                               3



      Because of defendant’s failure to comply with the clear standards for obtaining an
evidentiary hearing, the Court of Appeals correctly denied his motion for remand.
Neither this issue nor defendant’s remaining claims of error warrant relief, so I therefore
concur in the denial of defendant’s application for leave.




                         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.
                         September 28, 2012                  _________________________________________
       h0925                                                                 Clerk
