Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  March 9, 2012                                                                                        Robert P. Young, Jr.,
                                                                                                                 Chief Justice

  142384                                                                                               Michael F. Cavanagh
                                                                                                             Marilyn Kelly
                                                                                                       Stephen J. Markman
                                                                                                       Diane M. Hathaway
  PEOPLE OF THE STATE OF MICHIGAN,                                                                         Mary Beth Kelly
            Plaintiff-Appellee,                                                                            Brian K. Zahra,
                                                                                                                      Justices

  v                                                                 SC: 142384
                                                                    COA: 301150
  SAMBATH CHAN,                                                     Ottawa CC: 08-033005-FH
             Defendant-Appellant.
  _________________________________________/

          On order of the Court, the application for leave to appeal the December 28, 2010
  order of the Court of Appeals is considered, and it is DENIED, because the defendant has
  failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).

          MARKMAN, J. (concurring). I concur in the order denying leave to appeal. In
  2008, defendant, a noncitizen, pleaded guilty of breaking and entering and possession of
  an explosive device with malicious intent. Subsequently, the United States Supreme
  Court held that a criminal defense attorney must “advise a noncitizen client that pending
  criminal charges may carry a risk of adverse immigration consequences.” Padilla v
  Kentucky, 559 US ___; 130 S Ct 1473, 1483; 176 L Ed 2d 284 (2010). Later, in June
  2010, defendant filed a motion for relief from judgment, alleging that his trial counsel
  had provided ineffective assistance of counsel by failing to advise him of the immigration
  consequences of his guilty plea. The trial court denied this motion, and the Court of
  Appeals denied leave to appeal. In order to obtain relief, defendant must establish that he
  was actually prejudiced by his counsel’s failure to advise him about the risk of adverse
  immigration consequences. MCR 6.508(D)(3)(b); Padilla, 130 S Ct at 1483. Even
  assuming that Padilla applies retroactively to this case, defendant has failed to present
  any evidence that he was actually prejudiced by his trial counsel’s failure to advise him
  concerning the risk of adverse immigration consequences. Although defendant filed an
  affidavit with the trial court, he failed to include in the affidavit any averment that he
  would not have pleaded guilty but for the lack of advice about possible deportation. In
  addition, there is no evidence in the record concerning why the Department of Homeland
  Security is investigating defendant for possible deportation. Therefore, I cannot conclude
  that the trial court erred by denying defendant’s motion for relief from judgment.




                           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.
                           March 9, 2012                       _________________________________________
           h0306                                                               Clerk
