                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 31, 2016
               Plaintiff-Appellee,

v                                                                    No. 325346
                                                                     Kalamazoo Circuit Court
PERRY LENELL PIERCE,                                                 LC No. 2014-000288-FC

               Defendant-Appellant.


Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of assault with intent to do great
bodily harm less than murder, MCL 750.841, and resisting arrest, MCL 750.81d. Defendant was
sentenced as a habitual offender, second offense, MCL 769.10, to 71 months to 15 years’
imprisonment for assault with intent to do great bodily harm less than murder, and 18 months to
3 years’ imprisonment for resisting arrest. For the reasons set forth in this opinion, we affirm.

        This case arises out of an incident in which defendant stabbed the victim approximately
13 times in the back and once in the neck with a pair a scissors after the victim stole defendant’s
telephone. Multiple witnesses testified at trial that they saw defendant stab the victim at a bus
stop in Kalamazoo. At trial, defendant testified that he stabbed the victim 13 times. Defendant
admitted that he said “I hope you die” to the victim, but stated that he said it because he was “so
emotional” and the victim was saying “you going to prison, you going to prison, you going to die
in prison.” Defendant then testified that he bought the scissors earlier that day for his protection
because he had been told the victim was with other people. Defendant also stated that if he
intended to kill the victim he would have bought a big sharp knife instead of scissors.

       Before trial, defendant filed notice of his intent to claim an insanity defense. Defendant
underwent two psychological evaluations; he was first examined by Dr. Richard Rickman of the
Center for Forensic Psychiatry and he was later independently examined by Dr. Michael Wolff.



1
 Defendant was charged with the greater offense of assault with intent to murder, MCL 750.83,
but was found guilty of the lesser offense of AGBH.


                                                -1-
Dr. Rickman and Dr. Wolff both concluded in their respective reports that at the time of the
offenses, defendant was mentally ill, but did not meet the statutory criteria for legal insanity.

        On appeal, defendant argues that he received ineffective assistance of counsel at trial
because defense counsel did not properly investigate or document her investigation of potential
witnesses at a “Riverwood2” mental health center. Defendant argues defense counsel should
have called witnesses from Riverwood at trial to testify that defendant was mentally ill and
legally insane.

       “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo.” People v Lopez, 305 Mich App 686, 693; 854 NW2d 205
(2014). Because defendant did not preserve his claim by moving for a new trial or for a Ginther3
hearing, our review is limited to errors apparent on the record. Id.

        Criminal defendants are guaranteed the right to counsel under both the United States
Constitution and the Michigan Constitution. US Const, Am VI; Const 1963, art 1, § 20. “It has
long been recognized that the right to counsel is the right to the effective assistance of counsel.”
US v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984). For a claim of
ineffective assistance of counsel,

         The United States Supreme Court has set forth a two-prong test to determine
         whether counsel was ineffective in a given case. First, defendant must prove that
         his trial counsel failed to meet an objective standard of reasonableness based on
         “prevailing professional norms.” Second, defendant must establish prejudice,
         which is “a reasonable probability that, but for counsel’s unprofessional errors,
         the result of the proceeding would have been different.” [Lopez, 305 Mich App at
         694, quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80
         L Ed 2d 674 (1984).]

        When claiming ineffective assistance of counsel, the “defendant bears a heavy burden in
establishing that counsel’s performance was deficient and that [the defendant] was prejudiced by
the deficiency.” Lopez, 305 Mich App 693-694. In addition, the “defendant has the burden of
establishing the factual predicate for his claim of ineffective assistance of counsel.” People v
Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

       Having reviewed the record, we conclude that defendant has not established the factual
predicate that defense counsel failed to investigate Riverwood or that in fact, a therapist at
Riverwood ever treated him. At trial, defendant informed the trial court that he wanted a new



2
  On appeal, defendant and the state reference “Riverside” not “Riverwood,” but the trial record
is clear that the facility was “Riverwood.”
3
    People v Ginther, 390 Mich 436, 212 NW2d 922 (1973).


                                                -2-
attorney to be appointed for him because defense counsel was refusing to call witnesses that
defendant wanted her to call. Defendant told the trial court that his primary mental health
caregiver was Riverwood in Benton Harbor, and stated some names and a telephone number at
which these witnesses could be reached to give a more complete picture of defendant’s mental
health history and show that he did not intend to murder the victim.

        In response, defense counsel informed the trial court that “the whole thing is the
witnesses he wants are—don’t exist. They simply do not exist and this one from Riverside or
Riverwood there’s no record that he was ever a patient there and I can’t conjure up something
that doesn’t exist.”

       Defense counsel further informed the trial court that she pursued the Riverwood lead, the
forensic center examiner Dr. Rickman pursued the Riverwood lead, and the independent
examiner Dr. Wolff pursued the Riverwood lead, but all of them concluded that no one at
Riverwood treated defendant. Furthermore, Dr. Rickman’s report indicated as follows:

       Review of available records from Lakeland Regional Medical Center as well as
       Kalamazoo Community Mental Health Services. I also requested records from
       Riverwood Center, where Mr. Pierce said he had also received treatment. I
       received a letter back from the Berrien Mental Health Authority stating that they
       had no record of Mr. Pierce ever receiving services at Riverwood Center.

        Defendant’s argument that counsel failed to properly investigate is wholly unsupported
by the record and there is no factual predicate to support that counsel’s performance in this
respect fell below an objective standard of reasonableness. Hoag, 460 Mich at 6. Instead, the
record supports that defense counsel investigated defendant’s treatment history including
whether he was treated at Riverwood. There was nothing to support defendant’s claims that he
was treated at Riverwood and both Dr. Rickman and Dr. Wolff investigated whether defendant
was treated at Riverwood. Defendant fails to articulate what more counsel should have done to
investigate the Riverwood lead and he cannot show that counsel rendered performance that fell
below an objective standard of reasonableness. Lopez, 305 Mich App at 694.

        Defendant argues, however, that defense counsel failed to document her investigation
with a document showing he was not a patient at Riverwood and he contends that this shows that
counsel was ineffective. However, contrary to defendant’s argument, there was a document in
the record showing defendant was not a patient at Riverwood. Specifically, Dr. Rickman’s
evaluation stated that he requested records from the Riverwood Center and received a letter
stating there was no record of defendant ever receiving services. Defense counsel did not act
unreasonably when she did not prepare another document to repeat what was already contained
in the evaluation. In short, defendant was not denied the effective assistance of counsel. Id.

       Affirmed.



                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Karen M. Fort Hood
                                                           /s/ Stephen L. Borrello
                                              -3-
