Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  May 8, 2020                                                                     Bridget M. McCormack,
                                                                                                Chief Justice

  159757                                                                               David F. Viviano,
                                                                                       Chief Justice Pro Tem

                                                                                     Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                        Brian K. Zahra
            Plaintiff-Appellant,                                                    Richard H. Bernstein
                                                                                    Elizabeth T. Clement
  v                                                       SC: 159757                Megan K. Cavanagh,
                                                                                                     Justices
                                                          COA: 332491
  JUAN T. WALKER,                                         Wayne CC: 01-003031-FC
             Defendant-Appellee.
  _________________________________________/

        On order of the Court, the application for leave to appeal the May 23, 2019
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

         MARKMAN, J. (dissenting).

          In Lafler v Cooper, 566 US 156, 164 (2012), the United States Supreme Court
  held for the first time that where a defendant rejects a plea offer from the prosecutor as a
  result of the “ineffective advice” of defense counsel and the defendant is later convicted
  at trial, he or she may be entitled to relief under Strickland v Washington, 466 US 668
  (1984). Here, the Court of Appeals concluded “that Lafler did not create a new rule [of
  constitutional law] and that it therefore applies retroactively to this case.” People v
  Walker (On Remand), 328 Mich App 429, 449 (2019). While I have no present position
  as to whether the Court of Appeals erred in this regard, for the following two reasons, I
  would nonetheless grant leave to appeal to consider the issue of Lafler retroactivity.

         First, there is a difference of contemporary judicial opinion concerning the Court
  of Appeals’ conclusion that “[t]he Lafler opinion did not create a new rule-- it merely
  determined how the Strickland test applied to the specific factual context concerning plea
  bargaining.” Id. at 448. While it is true that the prevailing conclusion among the federal
  appellate courts is that Lafler applies retroactively because it was simply an “application”
  of Strickland and thus did not create a new rule, see, e.g., Gallagher v United States, 711
  F3d 315, 315 (CA 2, 2013) (“Neither Lafler nor [Missouri v Frye, 566 US 134 (2012)]
  announced ‘a new rule of constitutional law’: Both are applications of Strickland”), the
  Utah Supreme Court concluded to the contrary that Lafler “announced a new rule”
  because the “holding of Lafler—that prejudice is possible even if a defendant has
  received a fair trial—decides an issue neither contemplated nor addressed by Strickland.”
  Winward v Utah, 355 P3d 1022, 1023, 1028 (Utah, 2015). See also Marceau, Embracing
  a New Era of Ineffective Assistance of Counsel, 14 U Pa J Const L 1161, 1163 (2012)
  (contending that Lafler “reflect[s] a seismic shift in Sixth Amendment jurisprudence”).
  In light of this difference of opinion, I believe that review of the Court of Appeals’
  decision is warranted, even if this Court ultimately affirms that determination.
                                                                                                               2


       Second, as a substantive proposition, applying Lafler retroactively will result in
the unavailability of a considerable amount of testimony and recollections from defense
counsel of plea discussions occurring many years earlier, precisely because there is
disagreement whether Strickland was viewed as foreshadowing the rule in Lafler and, as
a result, relatively few attorneys prior to Lafler may have anticipated that their
recollections in this regard might be of future constitutional consequence. In the instant
case, for example, defendant was found guilty at his 2001 trial of first-degree
premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b(1). He now asserts that defense
counsel never conveyed a plea offer to him prior to trial in which he would have been
allowed to plead guilty to second-degree murder, MCL 750.317, and felony-firearm.
And at the 2015 evidentiary hearing that followed, defense counsel testified-- not
unreasonably, in my judgment-- that he had no memory as to whether he had conveyed
the plea offer 14 years earlier. While this Court at an earlier stage of this case concluded
that the trial court did not clearly err “in finding a reasonable probability that the
defendant would have accepted the plea offer,” People v Walker, 503 Mich 908, 908
(2018), it strikes me as a questionable outcome that a convicted person would obtain
relief (restoration of the original plea offer) despite the absence-- an altogether
predictable absence-- of a critical element of the record, defense counsel’s recall after 14
years as to whether, and when, he or she presented a plea offer to a defendant.

       It seems likely that more such cases will come before this Court, in which
memories will have been long-lost; in which attorney records will have been long-
discarded; in which attorneys will have passed; in which conversations once seen as
mundane will have been transformed into critical determinants of which long-settled
convictions must be revised and rewritten; and in which relevant evidence will largely be
derived from the unsubstantiated recollections of long-incarcerated criminal offenders.
For these reasons, I would grant leave to appeal to address whether the Court of Appeals
properly concluded that Lafler applies retroactively. In my judgment, this is a
jurisprudentially significant issue with far-reaching constitutional and practical
implications and it deserves our careful review.

       ZAHRA, J., joins the statement of MARKMAN, J.




                         I, 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.
                         May 8, 2020
       b0505
                                                                             Clerk
