                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 23, 2016
                Plaintiff-Appellee,

v                                                                  No. 323199
                                                                   Macomb Circuit Court
MATTHEW JAMES BLUMKE,                                              LC No. 2013-004546-FC

                Defendant-Appellant.


Before: SERVITTO, P.J., and SAAD and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of assault by strangulation, MCL
750.84, unlawful imprisonment, MCL 750.349b, malicious destruction of property with a value
less than $200, MCL 750.377a(1)(d), and interfering with a crime report, MCL 750.483a. The
trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 19 to 40
years in prison for the assault and unlawful imprisonment convictions, and 274 days in jail for
the malicious destruction of property and interfering with a crime report convictions, to be
served concurrently. We affirm his convictions, but remand for reconsideration of his sentences
in accordance with Lockridge.1

                          I. EFFECTIVE ASSISTANCE OF COUNSEL

       Defendant first argues that he was denied the effective assistance of counsel at trial.
Because defendant did not raise this issue in a motion for a new trial and no Ginther2 hearing
occurred (defendant’s motion for remand was denied by this Court), our review is limited to
mistakes apparent on the record. People v Seals, 285 Mich App 1, 19-20; 776 NW2d 314
(2009). Whether defendant was denied his right to the effective assistance of counsel generally
presents a mixed question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). In People v Gaines, 306 Mich App 289, 300; 856 NW2d 222 (2014),
this Court stated:



1
    People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                               -1-
              Effective assistance of counsel is presumed, and defendant bears a heavy
       burden of proving otherwise. To demonstrate ineffective assistance, defendant
       must show: (1) that his attorney’s performance fell below an objective standard of
       reasonableness, and (2) that this performance so prejudiced him that he was
       deprived of a fair trial. “To demonstrate prejudice, the defendant must show the
       existence of a reasonable probability that, but for counsel’s error, the result of the
       proceeding would have been different.” [Citation omitted.]

                                 A. FAILURE TO INTERVIEW

        Defendant first argues that defense counsel was ineffective for failing to interview the
prosecution’s witnesses. “A defendant raising a claim of ineffective assistance of counsel bears
the burden of proving the factual predicate of his or her claim.” People v Stokes, ___ Mich App
___; ___ NW2d ___ (2015) (Docket No. 321303); slip op at 14. To support his assertions on this
issue, defendant relies only on a proposed, unsigned affidavit sent to defense counsel and a
responsive letter from defense counsel attached to his appellate brief. The only evidence in the
record regarding the investigation of witnesses is defense counsel’s statement that he did not
receive sufficient discovery about the other-acts witness, Caitlyn Thomas, but that he received an
opportunity to conduct voir dire before she testified at trial. Because there is no available record
that would establish that trial counsel failed to interview or investigate these witnesses,
defendant’s claim necessarily fails.

        Furthermore, even assuming that defense counsel did not interview the prosecution
witnesses, the failure to interview witnesses or investigate evidence does not alone establish
inadequate preparation. People v Caballero, 184 Mich App 636, 642; 459 NW2d 80 (1990).
“The failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the
defendant of a substantial defense. Similarly, the failure to make an adequate investigation is
ineffective assistance of counsel if it undermines confidence in the trial’s outcome.” People v
Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (internal quotations and citation
omitted). Defendant fails to explain how counsel’s alleged failure to interview witnesses
deprived him of either a substantial defense or evidence that could have been helpful to the
defense. Additionally, we reject defendant’s argument that the presumed prejudice test of United
States v Cronic, 466 US 648; 104 S Ct 2039, 80 L Ed 2d 657 (1984), applies. There is no basis
for concluding that defense counsel’s alleged failure was complete, or that counsel failed to
subject the prosecution’s case to meaningful adversarial testing. Even assuming that counsel did
not investigate and interview witnesses, the record discloses that he extensively cross-examined
the witnesses at trial, conducted voir dire of Thomas, and moved for a directed verdict, arguing
that the prosecutor failed to offer sufficient evidence to present certain charges to the jury.

                              B. SELF-DEFENSE INSTRUCTION

        Defendant next argues that defense counsel was ineffective for failing to request a jury
instruction on non-deadly force in self-defense. CJI2d 7.22 explains that the elements of that
defense are (1) that the defendant was not engaged in the commission of a crime at the time he
acted, (2) that the defendant honestly and reasonably believed that force was necessary for
protection of self, (3) that the defendant used only the amount of force that reasonably seemed
necessary to repel the apprehended harm, (4) that the defendant confined the use of force to the

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duration of the apprehended threat, and (5) that the defendant did not trigger the apprehended
assault through his or her own misconduct.

        Even assuming that defense counsel should have requested the self-defense instruction
based on defendant’s testimony that his girlfriend initiated their physical altercation by swinging
at him with a shower curtain rod, defendant cannot establish that defense counsel’s failure so
prejudiced him that he was deprived of a fair trial. Defendant testified that he took full
responsibility for his actions that followed. Based on defendant’s testimony scoffing that the
victim is “a girl” when asked if she outmatched him, his testimony that she could not beat him up
or knock him out, his lack of injuries, and his testimony that he had no desire to escape the
victim when given the opportunity when she went to the bathroom, no reasonable juror could
find that defendant honestly and reasonably believed that force was necessary for his protection.
Moreover, even if the jury believed that the victim attempted to hit defendant with a shower
curtain rod, the jury could not find that the amount of defendant’s force—strangling, biting, and
threatening to kill the victim—was reasonably necessary to repel her. Also, defendant wavered
between attributing his actions to the need to restrain the victim and his lack of control because
he had been drinking alcohol. Considering that defendant’s testimony failed to establish the
requisite threat to use non-deadly force, combined with the fact that the victim testified
completely differently that defendant was the initial aggressor throughout the evening, defendant
cannot establish a reasonable probability that, but for defense counsel’s failure to request an
instruction on non-deadly force, the result of the proceeding would have been different.

                            C. ASSAULT BY STRANGULATION

        Defendant makes a number of claims related to his decision to testify. First, he claims
that defense counsel did not advise him that his testimony could be interpreted as an admission
of guilt. Defendant has failed to establish a factual predicate for this claim. Stokes, ___ Mich
App at ___; slip op at 14. Instead, defendant stated on the record that he and defense counsel
had discussed the “pros and cons” of testifying. He also stated that he had an ample amount of
time to discuss the decision whether to testify with defense counsel. Absent any record evidence
that defense counsel’s advice fell below an objective standard of reasonableness, this portion of
defendant’s claim must fail.

        In a related claim, defendant argues that defense counsel was ineffective because he did
not know about the offense of assault by strangulation, and therefore did not advise defendant
that his testimony could result in amendment of the charges to include this offense. Even if we
were to conclude that defense counsel’s lack of knowledge of the offense of assault by
strangulation fell below an objective standard of reasonableness, defendant cannot establish that
the outcome of the trial would have been different. The evidentiary support for an instruction on
that offense did not depend on defendant’s testimony. The victim’s testimony regarding the
strangulation, alone, established the necessary elements of this offense. Therefore, even without
defendant’s testimony, the evidence supported the prosecutor’s request to instruct the jury on




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assault by strangulation. Absent the requisite prejudice, defendant was not denied the effective
assistance of counsel.3

                                        D. MCL 768.27b

        Defendant finally argues that defense counsel should have objected, during voir dire and
outside the presence of the jury, to information regarding defendant’s physical acts against
Thomas’s female friend and male friends during one of their conflicts. Instead, defense counsel
objected in the presence of the jury when Thomas first testified that defendant punched her
female friend, who had revealed his infidelity to Thomas. Following the objection, the trial court
instructed Thomas to confine her testimony to her own experiences with defendant. The jury did
not hear any testimony regarding the male friends. Defense counsel did not thereafter request a
cautionary instruction about defendant punching Thomas’s female friend.

        In domestic violence cases, MCL 768.27b allows for the admission of evidence of the
defendant’s commission of other acts of domestic violence for any purpose for which it is
relevant. The definition of domestic violence includes “[p]lacing a family or household member
in fear of physical or mental harm.” MCL 768.27b(5)(a)(ii). Assuming without deciding that
defendant’s conduct with Thomas’s friends was not domestic violence under MCL 768.27b, the
isolated mention of defendant’s punching Thomas’s female friend did not prejudice defendant in
light of the overwhelming evidence of his guilt. The victim testified that defendant was angry
and, throughout the night, he exhibited his anger by: blocking the victim’s airway; biting her;
grabbing her by her head, leg, hair, and arms; throwing furniture, bathroom fixtures, and a
lightbulb; repeatedly preventing her from leaving their apartment; forcing her to sit under hot
water in the tub, and; repeatedly threatening to kill her. Thomas confirmed that defendant had a
bad temper and, during their dating relationship, he had caused her physical and mental harm,
including placing her in a headlock, scratching her, punching her car headlight and window, and
dragging her from his car on several occasions while angry. Given the victim’s testimony about
the charged acts and Thomas’s testimony demonstrating defendant’s propensity to commit acts
of violence against women who were or had been romantically involved with him, defendant
cannot establish a reasonable probability that, but for defense counsel’s failure to object earlier
to, or to request a cautionary instruction about, a single reference to defendant’s treatment of
Thomas’s female friend, the outcome of the proceeding would have been different.

                                       II. SENTENCING

        Last, defendant argues that this Court should remand for resentencing because the trial
court improperly scored offense variables (OV) 3, 4, 7, and 8 based on facts that were not found
by the jury beyond a reasonable doubt. We agree. Because defendant did not object to the


3
  In an additional related claim, defendant claims that defense counsel should have questioned
him about the difference between a headlock (a body-control technique) and a stranglehold
(meant to cut off circulation). Defendant’s claim is inconsistent with the record. Defense
counsel, in fact, elicited testimony from defendant that, with the “headlock,” he was attempting
to restrain the victim.


                                                -4-
scoring of these OVs on this basis in the trial court, this issue is unpreserved and our review is
limited to plain error affecting substantial rights. People v Lockridge, 498 Mich 358, 392; 870
NW2d 502 (2015).

       In Lockridge, our Supreme Court held that Michigan’s sentencing guidelines are
unconstitutional to the extent that they require judicial fact-finding beyond facts admitted by the
defendant or found by the jury to score offense variables that mandatorily increase the floor of
the guidelines minimum sentence range. Id. at 364. The concern is that when a judge makes
findings of fact beyond facts admitted by the defendant or found by the jury in a sentencing
proceeding that mandatorily increases a defendant’s minimum sentence, this runs afoul of a
defendant’s Sixth Amendment right to a jury trial. Id. The Court held that in order to avoid any
Sixth Amendment violation, Michigan’s sentencing guidelines are to be deemed advisory,
instead of mandatory. Id. at 391. However, sentencing judges must continue to consult the
guidelines and “ ‘take them into account when sentencing.’ ” Id. (citation omitted).

         Defendant was sentenced before Lockridge was decided. In determining whether there is
any plain error entitling defendant to relief under Lockridge, the first inquiry is whether the facts
admitted by defendant and the facts necessarily found by the jury “were sufficient to assess the
minimum number of OV points necessary for the defendant’s score to fall in the cell of the
sentencing grid under which he or she was sentenced.” Id. at 394. If the answer is “yes,” then
defendant cannot establish any plain error. Id. If the answer is “no,” then a remand to the trial
court for a Crosby4 hearing is required to allow it to determine whether, now aware of the
advisory nature of the guidelines, it would have imposed a materially different sentence. Id. at
396-397. If the trial court determines that it would have imposed a materially different sentence,
then it shall order resentencing. Id.

         Defendant challenges the scoring of the following OVs: the score of 10 points for OV 3
(MCL 777.33(1)(d) requires the assessment of 10 points if “[b]odily injury requiring medical
treatment occurred to a victim”); the score of 10 points for OV 4 (MCL 777.34(1)(a) requires an
assessment of 10 points if “[s]erious psychological injury requiring professional treatment
occurred to a victim”); the score of 50 points for OV 7 (MCL 777.37(1)(a) provides for 50 points
if “[a] victim was treated with sadism, torture, excessive brutality or similarly egregious conduct
designed to substantially increase the fear and anxiety a victim suffered during the offense”); and
the score of 15 points for OV 8 (MCL 777.38(1)(a) requires the assessment of 15 points if “[a]
victim was asported to another place of greater danger or to a situation of greater danger or was
held captive beyond the time necessary to commit the offense”). The prosecutor concedes on
appeal, and we agree, that even if there is record support for the scoring of these variables, none
of defendant’s convictions—assault by strangulation, unlawful imprisonment, malicious
destruction of property, and interfering with a crime report—required the jury to make the
findings necessary to score them. Moreover, in his testimony at trial, defendant did not provide
any information about the victim’s medical or psychological treatment under OVs 3 and 4, or
specifically admit that he caused aggravated physical abuse or committed asportation or captivity



4
    United States v Crosby, 397 F3d 103, 117-118 (CA 2, 2005).


                                                -5-
according to OVs 7 and 8. Because the reduction in the scoring of OVs 3, 4, 7, and 8 that
defendant advocates would change defendant’s sentencing guidelines range, defendant has made
a sufficient showing of plain error to justify remanding this case to the trial court to allow it to
determine whether, now aware of the advisory nature of the guidelines, it would have imposed a
materially different sentence.

      Affirmed in part and remanded for further proceedings in accordance with this opinion.
We do not retain jurisdiction.



                                                             /s/ Deborah A. Servitto
                                                             /s/ Henry William Saad
                                                             /s/ Colleen A. O'Brien




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