                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 25, 2017
               Plaintiff-Appellee,

v                                                                  No. 332903
                                                                   Grand Traverse Circuit Court
ALAIN FRASER KLINGBAIL,                                            LC No. 15-012263-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and MURRAY and GLEICHER, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial conviction of first-degree home invasion,
MCL 750.110a(2). The court sentenced defendant as a third habitual offender, MCL 769.11, to
36 to 240 months’ imprisonment. We affirm.

                                           I. FACTS

        Defendant’s conviction stems from his entry into the home of Margaret Gregory. At
approximately midnight on October 14, 2015, defendant pounded on the door of Gregory’s
home. She dialed 911, and Traverse City Police Officer Ryan Taylor responded to the call. He
arrived to see defendant break open the door and enter the home. When Officer Taylor got
inside, he found defendant standing over Gregory in the living room, with his hands near her
neck. After repeated attempts, Officer Taylor and Traverse City Patrol Supervisor Kevin Gay
subdued and handcuffed defendant.

        Defendant was initially charged with first-degree home invasion and assaulting, resisting,
or obstructing a police officer, MCL 750.81d(1), and was subject to a third habitual offender
enhancement. The prosecution’s felony complaint, filed on October 16, 2015, set forth the
prosecution’s theory relative to the first-degree home invasion charge. Specifically, the
complaint stated that defendant “did break and enter, or did enter without permission a dwelling
located at 868 E. State Street, with the intent to commit an assault therein, and while entering,
present in, or exiting the dwelling Margaret Gregory, was lawfully present therein; contrary to
MCL 750.110a(2).” (Emphasis added.) Based on that complaint, defendant and his appointed
counsel, David Clark, appeared in the district court for a preliminary examination on November
6, 2015. Rather than participating in a preliminary examination, however, defendant entered into
a plea agreement where he pleaded no contest to third-degree home invasion, MCL 750.110a(4),

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subject to a five-year maximum sentence with all other charges being dismissed.             After a
colloquy with defendant and his counsel, the district court accepted defendant’s plea.

        Several days later, the prosecutor signed a felony information again charging defendant
with first-degree home invasion on the theory that he broke and entered Gregory’s house with
the intent to commit an assault therein. Then, less than a week after defendant pleaded no
contest to third-degree home invasion, he retained a new attorney, John Ferguson, and filed a
motion to withdraw his plea. Defendant set forth the following reasons for withdrawing his plea:
(1) he was under the misapprehension that pleading no contest did not have the same
consequences as a guilty plea; (2) he believed that there would be further proceedings in the
circuit court; (3) the proceedings occurred quickly and may have contributed to the unclear
nature of his understanding; and (4) nothing in the police report contained any evidence to show
that defendant had an intent to commit a crime once inside Gregory’s house, nor that once he
was inside the house, he assaulted, battered, wounded, resisted, obstructed, and endangered the
arresting officer who immediately Tasered defendant.

        The circuit court heard defendant’s motion to withdraw on December 11, 2015.
Consistent with the motion, Ferguson argued that defendant did not understand that a no-contest
plea meant he was entering into a guilty plea to the charge, and that defendant thought that there
would be further proceedings after his no-contest plea. Reiterating the lack of time to discuss the
matters with his prior counsel, defendant argued that his plea was not intelligently made. During
the course of the hearing, the court noted defendant’s above average high school grades and the
fact that the plea he had agreed to had very favorable terms. Nevertheless, after full disclosure of
the risks of withdrawing, the court granted the motion.

        After the circuit court granted defendant’s motion to withdraw the plea, the prosecutor
signed an amended felony information and changed the theory for first-degree home invasion.
Rather than positing that defendant entered the home with the intent to commit an assault, the
amended felony information set forth the theory that defendant committed a felony—assaulting,
resisting, or obstructing a police officer—while present in Gregory’s home. It was that amended
felony information that would be the basis for the prosecution’s theory at trial.

       Following trial and his conviction for first-degree home invasion, defendant moved for a
new trial on the basis that he received ineffective assistance of counsel during the plea
proceedings. The circuit court conducted an evidentiary hearing on the motion, during which
defendant (now utilizing his original appointed counsel, Clark), defendant’s girlfriend, Falon
Babineau, and Ferguson testified, and issued a thorough written opinion denying defendant’s
motion. After setting forth the controlling law governing ineffective assistance of counsel
arguments, the circuit court made the following findings relative to the circumstances
surrounding defendant’s request to withdraw the initial no-contest plea:

               There is no question that the decision to withdraw the plea was ill advised.
       The undisputed facts were that the intoxicated Defendant had forcibly entered the
       home of an elderly woman late at night. The admitted presence of the woman in
       her own home together with the forcible entry would not support a charge on a
       lesser offense. Further, it has never been this Court’s practice to routinely accept
       no-contest pleas and enable alcoholics or binge-drinking felons to obtain pleas

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without admitting responsibility for their behavior. It was made clear to the
Defendant at the time of his motion that if he withdrew his plea there would be no
further negotiations and we would proceed directly to trial.

                                    *   *     *

        Referring back to the standards for ineffective assistance of counsel, the
Court finds that Mr. Ferguson’s performance during the trial was consistent with
that of a lawyer of ordinary training and skill in the criminal law and that he
conscientiously protected his client’s interests and had no conflicting
considerations.

        The focus of the Defendant’s motion centers on the second prong, which
is whether defense counsel made a serious mistake during a court proceeding.
Here, the alleged mistake is counseling the Defendant to withdraw his plea in the
hopes of negotiating a misdemeanor plea which would allow him to pursue his
goal of opening a restaurant and establishing a bar. As previously indicated the
Defendant is not incompetent but has at least average intelligence. He had read
the police report and was well aware of the People’s opinion that he had
committed resisting and opposing a police officer while inside the home. He
knew he could not testify due to a claimed lack of memory. His Court-appointed
lawyer had obtained for him an extraordinarily favorable plea agreement on the
facts. While the Defendant hoped that he might obtain a plea to a misdemeanor,
the People were neither under an obligation to offer one nor had they ever
indicated any inclination to do so. The death of the victim seemed to only solidify
the People’s desire to move forward with the trial.

                                    *   *     *

        The Defendant has been calculating in his behavior throughout these
proceedings. He admitted his first contact with Mr. Ferguson preceded the plea
offer that was originally accepted in the District Court. The Defendant was happy
to have Mr. Clark as his attorney because he had been an attorney for his
girlfriend’s family for a number of years. He wanted to see what Mr. Clark could
do for him. Mr. Clark obtained a one-day-only offer which the Defendant
accepted. When the siren call of Mr. Ferguson came again, he chose to reject the
certainty of a 5-year plea and 0- to 17-months sentencing guidelines for the
uncertainty of a trial result and any further plea negotiations. His retained
attorney discussed with him the various risks associated with rejecting the plea
but admitted that he supported the Defendant’s decision to proceed to trial. Given
that the Defendant’s state of intoxication and intent were not defenses, this was a
highly risky choice but one made after a plea had already been entered and with
substantial time to think and reflect upon the choice.

       Effective assistance of counsel is presumed and the defendant bears the
“heavy burden” of proving otherwise. Here, the Defendant has failed to establish
the factual predicate for his claim of ineffective assistance of counsel. You

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       cannot simply roll the dice, proceed to trial, receive an adverse verdict and then
       suggest that it is your lawyer’s fault and you should be allowed to start anew. The
       Defendant was properly charged with Home Invasion – 1st Degree and properly
       convicted of doing so. The withdrawal of the plea and gamble on the hopes of a
       misdemeanor conviction proved to be a losing bet but not one which this Court
       choses [sic] to enable by laying culpable blame on his attorney. Mr. Ferguson’s
       support of the Defendant’s bad decision was foolish. But, as is so often the case,
       the Defendant is the author of his own misfortune.

       Defendant now appeals as of right.

                                          II. ANALYSIS

                                    A. JURY INSTRUCTION

        Defendant first argues that the court abused its discretion when it denied his request for a
jury instruction on breaking and entering without permission, MCL 750.115(1). “We review de
novo a claim of instructional error involving a question of law.” People v Jones, 497 Mich 155,
161; 860 NW2d 112 (2014). “However, a circuit court’s decision as to whether a requested
lesser-included-offense instruction is applicable under the facts of a particular case will only be
reversed upon a finding of an abuse of discretion.” Id. A court abuses its discretion when it
chooses an outcome outside the range of principled outcomes. Id.

        Generally, a criminal defendant is entitled to have the jury instructed on lesser included
offenses. MCL 768.32(1). To be a lesser included offense, the elements of the greater offense
must subsume the elements of the lesser offense. People v Wilder, 485 Mich 35, 41; 780 NW2d
265 (2010). “[A] requested instruction on a necessarily included lesser offense is proper if the
charged greater offense requires the jury to find a disputed factual element that is not part of the
lesser included offense and a rational view of the evidence would support it.” People v Cornell,
466 Mich 335, 357; 646 NW2d 127 (2002).

         Defendant asserts that he was entitled to an instruction on breaking and entering without
permission because he lacked the intent to commit a crime in Gregory’s home as a result of his
intoxication and mistaken belief that he was entering the home in which he was staying at the
time. Although breaking and entering without permission is a lesser included offense of first-
degree home invasion, People v Silver, 466 Mich 386, 392; 646 NW2d 150 (2002), a rational
view of the evidence would not have supported the instruction. At trial, the prosecution
introduced evidence that defendant resisted arrest while in Gregory’s home. Officer Taylor
testified that he repeatedly told defendant to get on the ground. Defendant failed to comply, and
at one point turned toward Officer Taylor in “fighting mode,” with his fists clenched. Fearing an
assault, Officer Taylor used his Taser to knock defendant to the floor. When defendant ignored
Officer Taylor’s order to get on the ground, and started getting up, he Tasered defendant a
second time. Further, Patrol Supervisor Gay testified that he had to force handcuffs on defendant
after defendant resisted several attempts. Given the evidence that defendant resisted arrest, and
the lack of evidence that defendant entered Gregory’s house by mistake, the court did not abuse



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its discretion by denying defendant’s request for a jury instruction on breaking and entering
without permission.

                        B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues that defense counsel Ferguson rendered ineffective assistance,
both at the plea withdrawal stage of the case and at trial, and that the circuit court erred when it
denied his motion for a new trial.

        “This Court reviews for an abuse of discretion a trial court’s decision to grant or deny a
motion for a new trial.” People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012). An abuse of
discretion occurs when a court’s decision “falls outside the range of reasonable and principled
outcomes.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). “The question
whether defense counsel performed ineffectively is a mixed question of law and fact[.]” People
v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review a trial court’s findings of
fact for clear error, and review questions of constitutional law de novo. Id.

        To evaluate ineffective assistance of counsel, we use the standard established in
Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). People v
Hoag, 460 Mich 1, 5-6; 594 NW2d 57 (1999). The defendant must show: “(1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s
deficient performance, there is a reasonable probability that the outcome would have been
different.” Trakhtenberg, 493 Mich at 51-52. The effective assistance of counsel is presumed.
People v Roscoe, 303 Mich App 633, 644; 846 NW2d 402 (2014).

        We hold that the circuit court did not abuse its discretion when it denied defendant’s
motion for a new trial on the basis of ineffective assistance of counsel. For his argument that
Ferguson rendered ineffective assistance at the plea withdrawal stage, defendant asserts that he
withdrew his plea based on Ferguson’s legally erroneous advice that home invasion requires
specific intent. This argument lacks merit because (1) the trial court determined that defendant
withdrew his plea in order to avoid a felony conviction and get a better plea deal, (2) defendant
posited numerous reasons why he wanted to withdraw his plea, only one of which dealt with
Ferguson’s advice, and (3) Ferguson’s advice was based upon the prosecution’s theory at the
time the plea was taken, which focused on defendant’s intent outside the house, not on what
occurred inside.

        First, defendant fails to overcome the presumption that Ferguson’s advice was the
product of sound trial strategy. See Trakhtenberg, 493 Mich at 52. A defendant may be
convicted of first or third-degree home invasion for either breaking and entering a dwelling with
the intent to commit a crime inside, or for breaking and entering a dwelling, and then committing
a crime once inside. MCL 750.110a(2) and (4).1 Thus, home invasion does not require specific
intent.


1
    MCL 750.110a provides, in pertinent part:


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        At the evidentiary hearing, defendant and Babineau testified that Ferguson insisted
defendant should never have been charged with home invasion because he lacked any intent to
commit a crime when he broke and entered Gregory’s house. Indeed, Ferguson included this
argument in defendant’s motion to withdraw the plea, stating: “The police report is devoid of any
fact that supports a conviction for home invasion because the crime of home invasion is
dependent upon an element of proof that the defendant had some intent to commit a crime once
inside.” However, this reflected the prosecution’s theory of the case at the time. The felony
warrant dated October 16, 2015, charged defendant with first-degree home invasion on the basis
that he entered Gregory’s home with the intent to commit an assault therein. It was not until
defendant had already withdrawn his plea that the prosecution filed an amended felony
information, charging defendant with first-degree home invasion on the basis that he resisted
arrest while inside Gregory’s home. This suggests that Ferguson made a strategic decision to
focus on defendant’s lack of intent when he filed the motion to withdraw the plea, as that was the
focus of the prosecution. “[T]his Court will not second-guess counsel regarding matters of trial
strategy, and even if defense counsel was ultimately mistaken, this Court will not assess
counsel’s competence with the benefit of hindsight.” People v Rice (On Remand), 235 Mich
App 429, 445; 597 NW2d 843 (1999).

       Second, the circuit court thoroughly considered and rejected defendant’s argument that he
withdrew his plea based on misinformation from Ferguson about the law, and the record supports
the court’s findings. For one thing, defendant’s motion outlined numerous reasons why he
sought withdrawal of the plea, including feeling rushed, not understanding the process, not

       (2) A person who breaks and enters a dwelling with intent to commit a felony,
       larceny, or assault in the dwelling, a person who enters a dwelling without
       permission with intent to commit a felony, larceny, or assault in the dwelling, or a
       person who breaks and enters a dwelling or enters a dwelling without permission
       and, at any time while he or she is entering, present in, or exiting the dwelling,
       commits a felony, larceny, or assault is guilty of home invasion in the first degree
       if at any time while the person is entering, present in, or exiting the dwelling
       either of the following circumstances exists:

       (a) The person is armed with a dangerous weapon.

       (b) Another person is lawfully present in the dwelling.

                                             * * *

       (4) A person is guilty of home invasion in the third degree if the person does
       either of the following:

       (a) Breaks and enters a dwelling with intent to commit a misdemeanor in the
       dwelling, enters a dwelling without permission with intent to commit a
       misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling
       without permission and, at any time while he or she is entering, present in, or
       exiting the dwelling, commits a misdemeanor.



                                               -6-
understanding the implications of pleading no contest, and that the evidence in the police report
did not demonstrate the necessary intent to support the charges. Thus, the legal advice was one
part of a multi-faceted attempt to get out of his plea, and the circuit court specifically found that
defendant’s primary motive was a desire to avoid a felony, and to game the system. Indeed,
defendant admitted that he spoke with Ferguson about withdrawal because a felony conviction
would prevent him from obtaining a liquor license for a restaurant he wanted to open. Because
facts in the record support these findings, we cannot overturn or ignore those facts.

       Third, the circuit court’s findings that defendant was well-informed of the risks involved
in withdrawing the plea, and was not rushed in that decision, are also not clearly erroneous.
Although “[a] claim of ineffective assistance of counsel may be based on counsel’s failure to
properly inform the defendant of the consequences of accepting or rejecting a plea offer, People
v Douglas, 296 Mich App 186, 205; 817 NW2d 640 (2012), rev’d in part on other grounds by
496 Mich 557 (2014), a “defendant must [still] show the outcome of the plea process would have
been different with competent advice,” People v Douglas, 496 Mich 557, 592; 852 NW2d 587
(2014) (citation and quotation marks omitted).

        The evidence on the record before us demonstrates, consistent with the circuit court’s
findings, that defendant fully understood the potential consequences of withdrawing his plea, but
chose to withdraw anyways in hopes of besting the favorable deal negotiated by his original
appointed counsel, Clark. Defendant admitted at the evidentiary hearing that Clark informed
him he could be convicted of first-degree home invasion if he rejected the opportunity to plead
no contest to third-degree home invasion and proceeded to trial. The district court made the
same observation when it accepted defendant’s plea at the preliminary examination, stating:
“I’ve reviewed the pertinent portions of the police report. I do find an adequate factual basis that
would support a conviction for Home Invasion 1st Degree; however, the conviction will enter on
Home Invasion 3rd Degree, a five-year maximum felony[.]” Further, Ferguson testified at the
evidentiary hearing that he spoke with defendant “early on” regarding the prosecution’s theory
that defendant committed home invasion by breaking and entering Gregory’s house, and
resisting arrest while inside. From this evidence, one could reasonably conclude that, despite
defendant’s argument to the contrary, he understood the circumstances of the break-in could
support a charge of first-degree home invasion at the time he withdrew his plea.

       For these reasons, the circuit court’s decision to deny defendant’s motion for a new trial
did not fall outside the range of reasonable and principled outcomes, because record evidence
supports the trial court’s conclusion that (1) defendant was made aware of the consequences of
withdrawing his plea by both courts and his attorneys, and (2) that defendant would have
withdrawn his plea despite any advice provided by Ferguson.

        The dissent ignores the record evidence that supports the circuit court’s denial of
defendant’s motion, as well as the deference with which we must consider the court’s findings
and ultimate decision. The dissent too quickly dispatches with the trial court’s findings of fact,
which cannot be done under the clearly erroneous standard of review. Trakhtenberg, 493 Mich
at 47. Indeed, the dissent ignores the circuit court’s finding that defendant chose to withdraw “in
the hopes of negotiating a misdemeanor plea which would allow him to pursue his goal of
opening a restaurant and establishing a bar.” The court found that defendant was gaming the
system. The dissent’s focus on Ferguson’s one piece of legal advice misses the mark, for as

                                                -7-
explained above, defendant’s motion argued many more factors than just the legal advice from
Ferguson, and the trial court found that defendant was motivated by avoidance of a felony so that
he could start up a bar and restaurant. And although the court found defendant’s decision to
withdraw his plea ill advised, it concluded that defendant had a substantial time to reflect upon
the decision, and discussed with Ferguson the risks associated. Further, neither the district court
nor the circuit court had any obligation, as the dissent suggests, to list the elements of home
invasion for defendant, or to advise defendant that he could be convicted of first-degree home
invasion if he withdrew his plea.2 The dissents view of the facts simply cannot supplant what the
circuit court found as fact, when those findings are supported by record evidence.

        Defendant’s additional ineffective assistance of counsel arguments also lack merit. He
asserts that Ferguson rendered ineffective assistance by failing to introduce any evidence at trial
that he was mistaken as to the residence he chose to enter. “An attorney's decision whether to
retain witnesses, including expert witnesses, is a matter of trial strategy,” and failing to call
witnesses only amounts to ineffective assistance if it deprives a defendant of a substantial
defense. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). “A substantial
defense is one that might have made a difference in the outcome of the trial.” People v Chapo,
283 Mich App 360, 371; 770 NW2d 68 (2009) (citation and quotation marks omitted).

        At trial, Ferguson did not introduce any evidence to support the assertion that defendant
mistakenly entered Gregory’s home. However, defendant’s argument is predicated on a
misunderstanding of the elements of first-degree home invasion. Under the theory that defendant
committed first-degree home invasion by breaking and entering Gregory’s home and resisting
arrest while inside, defendant’s knowledge is not at issue.

        Finally, defendant contends that Ferguson was ineffective for not calling him to testify.
A defendant has a constitutional right to testify in his or her own defense. People v Bonilla-
Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). Defense counsel must advise the
defendant about the consequences of that choice, but “the ultimate decision whether to testify at
trial remains with the defendant.” Id. Thus, regardless of what counsel advised, the decision and
its consequences rests with defendant.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Christopher M. Murray




2
  In contrast to Lafler v Cooper, 566 US 156; 132 S Ct 1376; 182 L Ed 2d 398 (2012), discussed
at length by the dissent, the parties did not agree that Ferguson performed ineffectively. Because
in Lafler the parties stipulated that counsel was ineffective, that decision has no bearing on our
case that addresses whether Ferguson provided ineffective assistance.


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