                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      May 26, 2015
               Plaintiff-Appellee,

v                                                                     No. 320202
                                                                      Cass Circuit Court
DARIUS LAMAR WILSON,                                                  LC No. 13-010121-FH

               Defendant-Appellant.


Before: DONOFRIO, P.J., and O’CONNELL and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant appeals as of right his convictions for retaliation against a witness, MCL
750.122(8), assault with intent to do great bodily harm, MCL 750.84, and assault and battery,
MCL 750.81(1). Defendant was sentenced as a second-offense habitual offender, MCL 769.10.
Because defendant was properly sentenced as a second-offense habitual offender and because the
trial court did not err in how it conducted voir dire of the potential jurors, we affirm.

                              I. HABITUAL OFFENDER STATUS

        Defendant, who was sentenced as a second-offense habitual offender, MCL 769.10,
argues on appeal that he is entitled to have his habitual offender status vacated because the
sentence enhancement was improperly based on a misdemeanor conviction. Because defendant
never raised this issue at the trial court, the issue is unpreserved, and we review it for plain error
affecting a defendant’s substantial rights. People v Callon, 256 Mich App 312, 332; 662 NW2d
501 (2003).

        Defendant’s prior conviction was for attempted unlawful use of an automobile without
authority. Unlawful use of an automobile without authority is punishable for “not more than 2
years.” MCL 750.414. “Offenses punishable-by-more than one year of imprisonment are
‘felonies’ for purposes of the habitual-offender, probation, and consecutive sentencing statutes.”
People v Smith, 423 Mich 427, 445; 378 NW2d 384 (1985); see also MCL 761.1(g). Thus, with
unlawful use of an automobile without authority being punishable for up to two years, it is
properly classified as a “felony” for purposes of the habitual offender statutes. See Smith, 423
Mich at 445 (“Because misdemeanors punishable by two years of imprisonment fall under the
‘felony’ definition, they may be considered felonies for purposes of these statutes.”). Defendant
argues, however, that his crime—an attempt to commit that felony—cannot be relied on under
the habitual offender statute.
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       The second-offense habitual offender statute, MCL 769.10, states in relevant part:

       (1) If a person has been convicted of a felony or an attempt to commit a
       felony, . . . and that person commits a subsequent felony within this state, the
       person shall be punished upon conviction of the subsequent felony and sentencing
       under section 13 of this chapter as follows: [Emphasis added.]

Defendant ignores the plain language of the statute that allows for habitual offender
enhancement if the defendant previously attempted to commit a felony—regardless of what that
attempt crime actually is categorized as. See People v Slocum, 156 Mich App 198, 200-201; 401
NW2d 271 (1986). Accordingly, even though defendant’s attempt crime was a misdemeanor
because it was punishable by a maximum of one year imprisonment, it nonetheless was an
“attempt to commit a felony,” and the trial court did not plainly err when it relied on defendant’s
previous conviction in sentencing defendant as a second-offense habitual offender.

                                      II. JURY VOIR DIRE

        Defendant also argues on appeal that the lack of questioning by the trial court denied
defendant a thorough and conscientious voir dire that would allow him an opportunity to exercise
his peremptory and for cause challenges intelligently. We review this unpreserved issue for
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).

        “A defendant who chooses a jury trial has an absolute right to a fair and impartial jury.”
People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994). “The purpose of voir dire is to
elicit enough information for development of a rational basis for excluding those who are not
impartial from the jury.” Id. “Defendant does not have a right to have counsel conduct the voir
dire, nor does he have a right to individual, sequestered voir dire. Neither does he have a right in
every case to have the court ask questions submitted by counsel.” Id. at 619. There are no “hard
and fast rules” regarding what constitutes acceptable voir dire. People v Sawyer, 215 Mich App
183, 186; 545 NW2d 6 (1996). “Rather, trial courts must be allowed wide discretion in the
manner they employ to achieve the goal of an impartial jury.” Id. at 186-187 (quotation marks
omitted). In reviewing the trial court’s conduct, the test is whether the trial court conducted a
voir dire “sufficiently probing . . . to uncover potential juror bias.” Tyburski, 445 Mich at 609.

         In this case, the trial court conducted voir dire. It asked whether any of the potential
jurors knew defendant, the prosecutor, defense counsel, or any of the witnesses. If the jurors
indicated that they knew one of the aforementioned parties, the trial court would follow up by
questioning the individual juror about this knowledge and whether the relationship with the
perspective party would affect the person’s role as a juror. The trial court also asked the
potential jurors, generally, whether they knew anything about the case or had read or heard
anything about it; whether any of the jurors had a problem with the crimes charged, including
witness retaliation; and whether they had any close connection with law enforcement that would
affect their ability as a juror. If a juror responded affirmatively to any of the foregoing questions,
the trial court would ask the juror whether his connection with the case would affect his ability to
judge the case fairly. Additionally, the trial court covered the salient concepts of the
presumption of innocence, burden of proof, and reasonable doubt.

                                                 -2-
         On this record, we find the trial court’s questions provided defendant with a reasonable
opportunity to ascertain whether any of the potential jurors were subject to peremptory
challenges or challenges for cause. By way of the trial court’s questions, defendant gained
knowledge of the potential jurors, which allowed him to intelligently exercise his peremptory
challenges. See MCR 6.412(C)(1). The result of the voir dire process in this case was a panel
that, in fact, appeared entirely capable of impartial and fair deliberations. We conclude that the
trial court asked sufficiently probing questions to uncover potential juror bias and note that based
on the questioning, defendant was able to use all five of his peremptory challenges to exclude
jurors of his choice. Therefore, the trial court did not plainly err in how it conducted voir dire of
the potential jurors.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, defendant argues that his counsel was ineffective for (1) failing to object to the
trial court’s sentencing of him as a second-offense habitual offender and (2) failing to object to
the trial court questioning the potential jurors during voir dire. To demonstrate ineffective
assistance of counsel, a defendant must show that trial counsel’s performance was deficient (i.e.
objectively unreasonable), and that there exists “a reasonable probability that, but for counsel’s
error, the result of the proceeding would have been different.” People v Carbin, 463 Mich 590,
600; 623 NW2d 884 (2001); People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994).

        However, as previously discussed, we have concluded that the trial court did not err in
how it handled defendant’s habitual offender status or how it handled jury voir dire. Thus, any
failure to object on defense counsel’s part cannot constitute deficient performance. See People v
Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) (“Failing to advance a meritless
argument or raise a futile objection does not constitute ineffective assistance of counsel.”).
Accordingly, defendant’s claims of ineffective assistance necessarily fail.

       Affirmed.



                                                              /s/ Pat M. Donofrio
                                                              /s/ Peter D. O’Connell
                                                              /s/ Amy Ronayne Krause




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