Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  June 2, 2017                                                                      Stephen J. Markman,
                                                                                               Chief Justice

  154371                                                                                  Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
                                                                                    Richard H. Bernstein
                                                                                           Joan L. Larsen
  PEOPLE OF THE STATE OF MICHIGAN,                                                      Kurtis T. Wilder,
            Plaintiff-Appellee,                                                                     Justices

  v                                                      SC: 154371
                                                         COA: 331921
                                                         Wayne CC: 89-003478-FC
  LaTONYA RENAE HOBSON,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the July 8, 2016 order of
  the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting
  leave to appeal, we REMAND this case to the Wayne Circuit Court for an evidentiary
  hearing pursuant to People v Ginther, 390 Mich 436 (1973). The trial court shall
  determine whether trial counsel was ineffective because he misunderstood the law of
  aiding and abetting and felony murder, and erroneously advised the defendant to reject a
  plea offer to second-degree murder. In all other respects, leave to appeal is DENIED,
  because the defendant has failed to meet the burden of establishing entitlement to relief
  under MCR 6.508(D).

         We do not retain jurisdiction.

         MARKMAN, C.J. (concurring).

         Defendant, along with a group of people, stormed a house and attacked its
  occupants. One occupant of the house was killed, two others were shot, and another
  person was beaten. Before trial, defendant allegedly rejected an agreement to plead
  guilty to a charge of second-degree murder on the basis of inaccurate advice she had
  received from her legal counsel. At trial, she was convicted of felony murder. Now, 25
  years after rejecting the prosecutor’s plea offer, she has raised a claim of ineffective
  assistance of counsel during the plea-bargaining process.

  This Court has not specifically assessed the retroactivity of Lafler v Cooper, 566 US 156,
  164 (2012). However, other courts have predominantly concluded that Lafler
  creates a retroactive rule. See, e.g., In re Liddell, 722 F3d 737, 738 (CA 6, 2013). But
                                                                                          2

there are courts that have reached a contrary conclusion. See Winward v State, 355 P3d
1022, 1028 (Utah, 2015), cert den 136 S Ct 1495 (2016), reh den 136 S Ct 2480 (2016).
Without deciding at this time which of these conclusions is correct, I write separately to
discuss two issues relevant to the Court’s consideration of a Lafler claim on collateral
review more than two decades after a defendant’s direct appeal has concluded.

        First, this case should prompt a careful review of this Court’s procedural rules,
particularly as to whether there is merit in limiting the time within which a defendant
may bring a motion for relief from judgment. A reasonable time limitation would
alleviate the considerable problems that are associated with the review of long-delayed
claims and the current lack of finality in the judicial process. Consider, for example, that
under federal law such motions are not only time-limited, but cannot be brought more
than one year following the entry of judgment, 28 USC 2244(d), let alone 21 years after
judgment, as in the present case. A shortened time frame for the filing of a motion for
relief from judgment, while allowing exceptions from such a deadline for a defendant
who presents a colorable claim of innocence, would maintain fundamental protections for
the criminal offender while ensuring that any process of reconciliation and rehabilitation
to be derived from the finality of the criminal appeal can begin earlier rather than later.

        Second, the trial court in this case should carefully consider how defendant’s delay
in raising her claim affects its evaluation of the claim on remand. I believe it is this
Court’s responsibility to provide guidance to the lower courts regarding how to approach
claims of the present nature. There may be some alleged constitutional violations that are
easy to recreate and evaluate after significant passages of time, but, in my view, this is
not one of them.

        A defendant alleging ineffective assistance of counsel must show that counsel’s
performance was deficient and that the defendant was prejudiced by such performance.
People v Walker, 497 Mich 894, 895 (2014). More specifically, a defendant alleging
ineffective assistance of counsel within the context of plea negotiations “ ‘must show that
counsel’s representation fell below an objective standard of reasonableness,’ ” Hill v
Lockhart, 474 US 52, 57 (1985), quoting Strickland v Washington, 466 US 668, 687-688
(1984), and that “but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court (i.e., that the
defendant would have accepted the plea and the prosecution would not have withdrawn it
in light of intervening circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact were imposed,” Lafler, 566 US
at 164. Worthy of particular emphasis, the defendant bears the burden of proving these
elements by a reasonable probability. See Strickland, 466 US at 694; People v Hoag, 460
Mich 1, 6 (1999) (“[D]efendant has the burden of establishing the factual predicate for
his claim of ineffective assistance of counsel[.]”).
                                                                                                               3


       In assessing, on collateral review, the merits of a long-delayed claim of ineffective
assistance of counsel during plea bargaining, such as the claim alleged by defendant here,
the court should look closely at the prejudice requirement of an ineffective-assistance-of-
counsel claim. In weighing whether the defendant has met his or her burden to show
prejudice, the court should consider that the prosecutor and/or defense counsel may no
longer remember the plea discussions, they may no longer have written records of the
case, and they may not even be alive anymore. Given such facts, a defendant may be
unable to meet his or her burden to show that counsel provided ineffective advice, that
the defendant would have accepted the plea, that the prosecutor would not have
withdrawn the plea, and that the court would have accepted its terms. In other words, the
court should be cognizant that the defendant will often have a difficult time showing that
his or her counsel’s alleged deficient performance caused the defendant to suffer
prejudice when the defendant waits decades to raise, on collateral review, a claim of
ineffective assistance of counsel during plea bargaining. In such circumstances, it would
be proper for the court to deny the defendant relief for failure to meet his or her burden.

        That the burden to show prejudice must be borne by the defendant, and that the
effect of unnecessary delay or gamesmanship in bringing a claim must not be borne by
the prosecutor, are, in my judgment, critical premises of a long-delayed appellate process.
Consider, for example, a defendant convicted of two separate crimes who is serving
concurrent sentences of 7 years and 10 years. If that defendant has a claim of ineffective
assistance of counsel regarding the latter conviction, he should not be permitted to
advantage himself by waiting to bring the ineffective-assistance-of-counsel claim until
after the former sentence has expired. It cannot be that the defendant—who cannot be
released before the completion of his shorter sentence—can advantage himself by the
fading memory of the prosecutor, the passing of witnesses, or the loss or destruction of
court records by waiting to bring the claim until his shorter sentence has expired.

       WILDER, J., did not participate because he was on the Court of Appeals panel.




                         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.
                         June 2, 2017
       t0530p
                                                                             Clerk
