                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re OCTAVIO SANCHEZ BAEZ, Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 17, 2018
              Petitioner-Appellee,

v                                                                  No. 336973
                                                                   Wayne Circuit Court
OCTAVIO SANCHEZ BAEZ,                                              Family Division
                                                                   LC No. 16-522826-DL
              Respondent-Appellant.


Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.

PER CURIAM.

        Respondent appeals the trial court’s dispositional order referring him to Wayne County
Children & Family Services for placement and care. Respondent was adjudicated pursuant to his
plea of no contest to one count of fourth-degree criminal sexual conduct, MCL 750.520e(1). We
affirm.

                                     I. PERTINENT FACTS

       This case arises from an incident in November 2016. Respondent, 13 years old at the
time, was at a playground around 5:00 p.m. when he approached another 13-year-old boy,
“punched” him in the genitals, and grabbed the boy on the buttock. A few moments later,
respondent chased a nine-year-old boy, pushed him to the ground, and grabbed the boy on the
buttock. This incident resulted in a delinquency petition charging respondent with two counts of
fourth-degree criminal sexual conduct, MCL 750.520e(1) (force or coercion). This was the
second delinquency petition alleging criminal sexual conduct filed against respondent within five
months. In June 2016, petitioner charged respondent with second-degree sexual conduct
involving a six-year-old girl. MCL 750.520c(1)(a). The trial court authorized both petitions.

       At the request of the trial court, a licensed psychologist with the Clinic for Child Study
performed a psychological evaluation to determine respondent’s competency to proceed. The
evaluation revealed, among other things, that respondent had been diagnosed with Autism
Spectrum Disorder, had a history of academic and behavioral issues, was receiving special
education services and counseling, that his intellectual capacity was assessed to be in the low

                                               -1-
average range, and that he exhibited impulsivity and inattentiveness. Despite his limitations, the
examiner opined that he was competent to proceed, concluding, among other findings, that “he
has the capacity to understand the nature of the charges against him, the basic legal process
related to the adjudication, and has both the willingness and the ability to assist in his defense.”1

        At the pretrial hearing, respondent’s counsel stipulated to respondent’s competency and
the trial court admitted the competency evaluation without objection. Counsel and the
prosecutor then informed the court that they had reached a plea agreement, wherein petitioner
agreed to dismiss the first petition alleging second-degree criminal sexual conduct in addition to
the one count of fourth-degree criminal sexual conduct contained in the second petition if
respondent entered a plea to one count of fourth-degree criminal sexual conduct, MCL
750.520e(1). The prosecutor and respondent’s counsel agreed that the plea would be a no-
contest plea. After satisfying itself that the plea was “knowingly, understanding, and voluntarily
made,” the trial court accepted respondent’s plea of no contest, MCR 3.941(A). Pursuant to the
agreement, the court dismissed the first petition and one count of fourth-degree criminal sexual
conduct contained in the second petition, and it entered an order adjudicating respondent a
delinquent pursuant to his plea, MCL 712A.2(a)(1).

        During the plea taking procedure, the court substantially complied with MCR 3.941, the
court rule governing pleas of admission or of no contest in juvenile proceedings. As required
under MCR 3.941(C)(1), which ensures that the plea is understanding, the court advised
respondent of, and confirmed that he understood, the charges against him, the possible
dispositions, as well as the litany of trial rights enumerated in the court rule that he would be
giving up if the court accepted the plea. As required under MCR 3.941(C)(2), which ensures that
the plea is voluntary, the court confirmed that no one promised respondent anything beyond the
plea bargain or forced or threatened him to enter a plea. As required under MCR 3.941(C)(3),
which ensures that the plea is accurate, the court established the factual basis for respondent’s
plea of no contest with the “JC01 police report,” which indicated that, on November 6, 2016, at
approximately 5:00 p.m., respondent was at an elementary school playground when “he
approached the victim . . . and punched him in the genitals and also grabbed his buttock,” and
found that these facts were sufficient to establish fourth-degree criminal sexual conduct, MCL
750.520e(1). Further, as required under MCR 3.941(C)(4), the court confirmed with
respondent’s adoptive mother (who was his biological grandmother) that there was no reason the
court should not accept the plea. The court also confirmed with respondent that he had enough
time to talk to his attorney and was satisfied with his services.

        At the subsequent dispositional hearing, the trial court admitted and considered a second
psychological evaluation performed by the Clinic for Child Study to aid in the dispositional
decision. The evaluation recommended Level 1 (in-home) probation, participation in a program
for juvenile sexual offenders, a medication review, individual counseling in conjunction with
family therapy, special education services, and an adult-sponsored social activity. The trial court



1
  Apparently, a “criminal responsibility” evaluation was also performed, which defense counsel
received, but it was not admitted at the plea hearing or included in the lower court record.


                                                 -2-
expressed concern with this recommendation, specifically whether Level 1 (in-home probation)
was appropriate considering respondent’s pattern of behavior indicated that his prognosis in the
community was “not very good.” Given this, the trial court also questioned whether the amount
of oversight under Level 1 was intense enough. Despite the Clinic’s recommendation, the court
ordered Level 2 out-of-home placement with the recommended services and referred respondent
to Wayne County Children & Family Services for placement and care.

       Respondent filed a motion with this Court seeking remand to permit him to withdraw his
plea and/or for a Ginther2 hearing regarding the ineffective assistance of counsel, which was
denied. In re Octavio Sanchez Baez, unpublished order of the Court of Appeals, issued June 27,
2017 (Docket No. 336973). He now appeals raising essentially the same issues.

                                     II. IMPROPER PLEA

        Respondent first argues that this Court should vacate his plea of no contest or remand to
allow him to withdraw his plea because (1) the trial court failed to ascertain why a plea of no
contest was appropriate in this case as required under MCR 3.941(C), (2) the factual basis
supporting respondent’s plea was insufficient because the police report provided no evidence that
he engaged in the requisite “sexual contact” necessary to establish fourth-degree criminal sexual
conduct, and (3) there was no evidence that respondent understood the nature of the offense in
violation of his right to due process. We disagree.

                                 A. STANDARD OF REVIEW

        Respondent did not move to withdraw his plea in the trial court or raise these arguments
before the trial court. Thus, his arguments relating to the plea taking procedure and that his plea
was not understandingly made are not preserved. MCR 3.941(D). See In re Zelzack, 180 Mich
App 117, 126; 446 NW2d 588 (1989). Additionally, this Court denied respondent’s motion to
remand.

        We review claims of unpreserved error for plain error that affected substantial rights.
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). “To avoid forfeiture under
the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Id. at 763.
“The third requirement generally requires a showing of prejudice, i.e., that the error affected the
outcome of the lower court proceedings.” Id. “Reversal is warranted only when the plain,
forfeited error resulted in the conviction of an actually innocent defendant or when an error
‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings’
independent of the defendant’s innocence.” Id. at 763-764, quoting United States v Olano, 507
US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

       Further, the “[i]nterpretation of court rules presents a question of law that [this Court]
review[s] de novo.” People v Blanton, 317 Mich App 107, 117; 894 NW2d 613 (2016) (citation


2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -3-
omitted). We also review issues of constitutional law de novo. In re Carey, 241 Mich App 222,
226; 615 NW2d 742 (2000).

                                     B. NO-CONTEST PLEA

        Respondent first argues that this Court should vacate his plea or remand to permit him to
withdraw his plea because the trial court failed to state why a plea of no contest was appropriate
as required under MCR 3.941(C)(3)(b). We disagree.

        Respondent is correct that neither the trial court, nor petitioner or defense counsel, stated
on the record why respondent’s no-contest plea was appropriate as required by MCR
3.941(C)(3)(b).3 Accordingly, an error occurred and, in light of the clear mandate of the court
rule, the error was plain, i.e., clear or obvious. People v Vaughn, 491 Mich 642, 664-665; 821
NW2d 288 (2012); Carines, 460 Mich at 763. However, while we believe it was necessary
under MCR 3.941(C)(3)(b) that the reasons for a no-contest plea be stated on the record, see
People v Byrd, 150 Mich App 624, 628; 389 NW2d 710 (1986), we will not consider a plain,
unpreserved error for the first time on appeal “ ‘unless the error could have been decisive of the
outcome or unless it falls under the category of cases, . . . where prejudice is presumed or
reversal is automatic.’ ” Vaughn, 491 Mich at 666, quoting People v Grant, 445 Mich 535, 553;
520 NW2d 123 (1994); Carines, 460 Mich at 763 (the plain error must affect substantial rights).
Here, contrary to respondent’s argument, the nature of the court’s noncompliance with MCR
3.941(C)(3), in and of itself, does not warrant automatic remand to permit withdrawal of the plea
because the court’s obligation to state why the no-contest plea was appropriate is not one of the
protected rights warranting automatic reversal of a plea. See People v Plumaj, 284 Mich App
645, 649-650; 773 NW2d 763 (2009), citing People v Saffold, 465 Mich 268, 281; 631 NW2d
320 (2001).

       Although some statement of why respondent’s plea of no contest was appropriate is
required under MCR 3.941(C)(3)(b), respondent has not established how the failure to do so
undermined the accuracy of the plea. The court cannot accept a plea unless it is accurate,
voluntary, and understanding. MCR 3.941(A). Respondent does not identify how he was
prejudiced by the plea, nor does he supply this Court with any reason or argument why the


3
    MCR 3.941(C)(3) provides:

                 The court may not accept a plea of admission or of no contest without
         establishing support for a finding that the juvenile committed the offense:

                 (a) either by questioning the juvenile or by other means when the plea is a
         plea of admission, or

                (b) by means other than questioning the juvenile when the juvenile pleads
         no contest. The court shall also state why a plea of no contest is appropriate.
         [Emphasis added.]



                                                 -4-
court’s acceptance of his no-contest plea was unjustified. Further, the record supports that there
was an appropriate reason for the plea of no contest. In fact, all parties agreed that the basis for
the plea was the submission of the JC01 police report. Our Courts have recognized that a no-
contest plea is generally allowed to avoid forcing the accused to make an admission in order to
minimize civil liability, or where he is reluctant to relate details due to the nature of the offense,
e.g., sexual assault. In re Guilty Plea Cases, 395 Mich 96, 133-134; 235 NW2d 132 (1975);
People v Hill, 86 Mich App 706, 713-715; 273 NW2d 532 (1979). These reasons exist here to
justify acceptance of respondent’s no-contest plea. Respondent has not established any
likelihood that the trial court improperly accepted his plea because respondent failed to make any
claim that the reason for his plea of no contest was not justified. Thus, respondent has failed to
state why the plea was not appropriate, and he cannot establish that the trial court’s lack of
compliance with MCR 3.941(C)(3)(b) was decisive of the outcome. Vaughn, 491 Mich at 666;
Carines, 460 Mich at 763. On this record, respondent has not established how the court’s plain
error affected his substantial rights, and thus, he has forfeited this unpreserved claim of error.
Carines, 460 Mich at 763-764.

                              C. INADEQUATE FACTUAL BASIS

       Respondent next argues that this Court should vacate his plea or remand to permit him to
withdraw his plea because the factual basis of the plea was insufficient to establish that he
committed the offense of fourth-degree criminal sexual conduct, MCL 750.520e(1). We
disagree.

        Initially, we reject petitioner’s argument that respondent waived appellate review of his
challenge to the sufficiency of the factual basis of the plea. Petitioner points to In re Tiemann,
297 Mich App 250, 265; 823 NW2d 440 (2012) in support of his argument, but we believe this
case is distinguishable. While respondent’s counsel did not challenge the factual basis for the
plea or bring a motion to withdraw his plea before the trial court, unlike in Tiemann, counsel did
not affirmatively express his satisfaction with the factual basis for the plea (although he did
affirmatively indicate satisfaction with the advice of rights). It is the intentional relinquishment
of a known right that constitutes a waiver that extinguishes an error. Vaughn, 491 Mich at 663
(citations omitted). Nevertheless, because this issue is unpreserved, our review is limited to
plain error that affected respondent’s substantial rights. Carines, 460 Mich at 763-764.4




4
  Petitioner also directs this Court to People v Baham, 321 Mich App 228, 235; 909 NW2d 836
(2017), to support the argument that a motion to withdraw a plea is a prerequisite for challenging
the accuracy of the plea, and thus, in the absence of such a motion, direct substantive review is
precluded under MCR 6.310(D). However, MCR 6.310(D) provides the procedure for
withdrawing a plea in a criminal case. This case is a juvenile proceeding in the family division
of the circuit court, which is governed by MCR 3.901-3.950 and 3.991-3.993. MCR 3.901(A)(2)
specifically provides, “Other Michigan Court Rules apply to juvenile cases in the family division
of the circuit court only when this subchapter specifically provides.” MCR 3.941(D) governs a
plea withdrawal in juvenile proceedings and does not reference MCR 6.310(D). Thus, MCR


                                                 -5-
         Respondent has failed to demonstrate plain error with respect to the sufficiency of the
factual basis of his plea. He argues that the police report used to form the factual basis for his
plea did not establish the requisite “sexual contact” necessary to find that he committed the
offense of fourth-degree criminal sexual conduct, MCL 750.520e(1). Under MCR 3.941(C)(3),
the trial court “may not accept a plea of admission or of no contest without establishing support
for a finding that the juvenile committed the offense[.]” Where, as in this case, a juvenile pleads
no contest, the court must establish factual support for the plea by means other than questioning
the juvenile. MCR 3.941(C)(3)(b). “A factual basis for acceptance of a plea exists if an
inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant
even if an exculpatory inference could also be drawn and defendant asserts the latter is the
correct inference.” Guilty Plea Cases, 395 Mich at 130; People v Fonville, 291 Mich App 363,
377; 804 NW2d 878 (2011) (citations omitted).

       Respondent was adjudicated, by his plea of no contest, for the offense of fourth-degree
criminal sexual conduct under MCL 750.520e(1), which provides, in pertinent part:

              (1) A person is guilty of criminal sexual conduct in the fourth degree if he
       or she engages in sexual contact with another person and if any of the following
       circumstances exist:

                                             * * *

              (b) Force or coercion is used to accomplish the sexual contact. Force or
       coercion includes, but is not limited to, the following circumstances:

              (i) When the actor overcomes the victim through the actual application of
       physical force or physical violence.

                                             * * *

              (v) When the actor achieves the sexual contact through concealment or by
       the element of surprise.

“Sexual contact” is statutorily defined under MCL 750.520a(q) as:

       “Sexual contact” includes the intentional touching of the victim’s or actor’s
       intimate parts or the intentional touching of the clothing covering the immediate
       area of the victim’s or actor’s intimate parts, if that intentional touching can
       reasonably be construed as being for the purpose of sexual arousal or
       gratification, done for a sexual purpose, or in a sexual manner for:

               (i) Revenge.



6.310(D) does not apply here. Instead, MCR 3.941(D) applies, which provides that “[a]fter the
court accepts the plea, the court has discretion to allow the juvenile to withdraw a plea.”


                                                -6-
               (ii) To inflict humiliation.

               (iii) Out of anger.

        The statute “requires proof that the defendant engaged in intentional touching of the
complainant’s intimate parts or the clothing immediately covering that area.” People v Piper,
223 Mich App 642, 646-647; 567 NW2d 483 (1997). However, “proof of intentional touching,
alone, is insufficient to establish guilt.” Id. at 647. “The statute further requires that the
prosecution prove that the intentional touch could ‘reasonably be construed as being for [a]
sexual purpose.’ ” Id. (emphasis in original). The conduct is evaluated under a reasonable
person standard and does not require that the defendant “specifically intended sexual
gratification when he touched the complainant.” Id. at 650. Under the statute, “sexual contact”
exists where the conduct, viewed objectively, “could reasonably be construed as being for a
sexual purpose.” Id. at 647.5

         At the plea hearing, the trial court, without objection, relied on the “JC01 police report,”
which the court found established that respondent forcefully touched the victim on the genitals
and buttock sufficient to establish fourth-degree criminal sexual conduct. The report indicated
that on November 6, 2016, at approximately 5:00 p.m., respondent was on an elementary school
playground when he approached the victim and punched him in the genitals and then grabbed his
buttock. Respondent asserts that these facts do not establish that his conduct was done for the
purpose of sexual arousal or gratification, for a sexual purpose, or in a sexual manner. MCL
750.520a(q). However, a reasonable person, viewing these facts objectively, could reasonably
infer that the touching was intentional—respondent approached and initiated contact with the
victim on the playground and “punched” him in the genitals and then grabbed the victim’s
buttock—and done for sexual arousal or gratification, for a sexual purpose, or in a sexual manner
(both contacts with the victim involved intimate parts of his body and resulted from respondent’s
initiation of contact with him).6 Guilty Plea Cases, 395 Mich at 129-132; Fonville, 291 Mich
App at 377-379; Piper, 223 Mich App at 646-647. And, even if an exculpatory inference could
also be drawn from respondent’s intentional touching of the victim, because an inculpatory
inference can be reasonably drawn from the police report, there exists a sufficient factual basis to
establish that respondent engaged in “sexual contact” with the victim as required under MCL
750.520e(1). Guilty Plea Cases, 395 Mich at 129-132; Fonville, 291 Mich App at 377-379. We


5
  In Piper, this Court construed a prior version of the definition of “sexual contact” then located
at MCL 750.520a(k), which defined sexual contact as “the intentional touching of the victim’s or
actor’s intimate parts or the intentional touching of the clothing covering the immediate area of
the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as
being for the purpose of sexual arousal or gratification.” MCL 750.520a was amended in 2001
to its current version to include intentional touching done for sexual arousal or gratification, for a
sexual purpose, or in a sexual manner for revenge, to inflict humiliation, or out of anger. 2000
PA 505, eff March 28, 2001; MCL 750.520a(q).
6
 “Intimate parts” is statutorily defined as including “the primary genital area, groin, inner thigh,
buttock, or breast of a human being.” MCL 750.520a(f).


                                                 -7-
further find that the circumstances support a finding that the sexual contact was accomplished by
force or coercion. MCL 750.520e(1)(b). From the facts, which indicate that respondent
approached the victim on a playground and “punched” the victim in the genitals and grabbed his
buttock, it could be reasonably inferred that respondent accomplished the sexual contact by
overcoming the victim with the “actual application of physical force or violence[]” or through
the “element of surprise.” MCL 750.520e(1)(b)(i),(v).

        Because the police report contained a sufficient factual basis from which the trial court
could reasonably conclude that respondent committed fourth-degree criminal sexual conduct,
MCL 750.520e(1)(b), the plea was accurate and he is not entitled to vacation of the plea or
remand to permit him to withdraw the plea. MCR 3.941(A); MCR 3.941(C)(3)(b). Respondent
has not shown error, let alone plain error affecting his substantial rights, regarding the
sufficiency of the factual basis for his plea. Carines, 460 Mich at 763.

                                 D. UNDERSTANDING PLEA

       Respondent finally argues that this Court should vacate his plea or remand to allow him
to withdraw his plea because there was “no evidence” that he understood the nature of the
charges against him in violation of his right to due process. We disagree.

        “A plea that is not voluntary and understanding ‘violates the state and federal Due
Process Clauses.’ ” Blanton, 317 Mich App at 119, quoting People v Brown, 492 Mich 684, 694;
822 NW2d 208 (2012), citing US Const Ams V and XIV, and Const 1963, art 1, § 17. In accord
with this due process requirement, MCR 3.941(A) prohibits the trial court from accepting “a plea
to an offense unless the court is satisfied that the plea is accurate, voluntary, and understanding.”
To ensure that the plea is understandingly made, MCR 3.941(C) mandates that the trial court tell
the juvenile the name of the offense charged, the possible dispositions, and that if the plea is
accepted, the juvenile will not have a trial and will be giving up his trial rights. MCR
3.941(C)(1)(a)-(c). This Court has also recognized that, because the requirements of the court
rule “ ‘are premised on the requirements of constitutional due process,’ a trial court may, in
certain circumstances, be required to inform a defendant about facts not explicitly required by”
the rule. Blanton, 317 Mich App 119, quoting People v Cole, 491 Mich 324, 332; 817 NW2d
497 (2012).

        Before accepting respondent’s plea, the trial court fully complied with the requirements
under MCR 3.941(C)(1) to ensure that the plea was understandingly made. The trial court
advised respondent of the name of the charges against him, the possible dispositions, and each of
the enumerated trial rights that he would be giving up if the plea was accepted, and confirmed
that he understood the advice. The trial court also confirmed respondent’s understanding of the
plea agreement and set forth a factual basis for the plea, MCR 3.941(C)(3), and confirmed that
the plea was voluntarily made, MCR 3.941(C)(2). Respondent asserts that, in light of his
emotional issues and intellectual limitations, the trial court should have provided additional
explanation regarding the nature of the criminal sexual conduct charge to assure that he
understood the difference between a mere assault and battery and the sexual contact necessary to
establish criminal sexual conduct.



                                                -8-
        However, such explanation is not required under the court rule governing juvenile pleas,
MCR 3.941(C)(1). And, while due process may necessitate that the trial court provide further
explanation or advice beyond the court rule’s requirements to ensure that the plea is
understandingly made, Blanton, 317 Mich App at 119, it is not clear or obvious on this record
that respondent lacked understanding of the nature of the criminal sexual conduct offense with
which he was charged. To the contrary, the court had the benefit of the competency evaluation,
which indicated that respondent understood the charge in relation to his conduct despite his
limitations. Notably, the evaluation concluded that, although respondent’s “intellectual capacity
was assessed to be in the Low Average Range,” he “has the capacity to understand the nature of
the charges against him” and “the basic legal process related to the adjudication”; he “presented
with a clear understanding of his actions related to the charge” and “understood the gravity of the
charge”; and he “presented with a fundamental understanding of the . . . possible outcomes of
[the] proceedings[.]” Additionally, the report indicated that the psychologist explained the
offense of criminal sexual conduct to respondent, after which respondent stated that criminal
sexual conduct means “doing something wrong to somebody like touching where you
shouldn’t,” indicating that he was aware that the offense involved more than a “mere assault and
battery.” This is clearly contrary to respondent’s argument. Further, although the trial court did
not explicitly find on the record that respondent’s touching was done for sexual gratification, for
a sexual purpose, or in a sexual manner, it reasonably follows from the court’s findings that the
contact was for a sexual purpose or in a sexual manner. MCL 750.520a(q); Piper, 223 Mich at
646-647.

        On this record, it is not clear or obvious that respondent did not understand the nature of
criminal sexual conduct. Therefore, respondent has not shown that the court plainly erred in
failing to provide additional explanation regarding the nature of the charge before accepting his
plea. Carines, 460 Mich at 763. Moreover, respondent does not point to any evidence indicating
that he actually did lack understanding of the nature of the charges at the time of the plea
sufficient to demonstrate that some further explanation of the charges by the trial court could
have changed the outcome of the plea proceedings. Id. On this record, respondent failed to
establish plain error that affected his substantial rights.7 Id.

       We conclude that respondent is not entitled to vacation of his plea or remand to permit
him to withdraw his plea on the basis that the trial court improperly accepted his plea.
Respondent has not shown that his unpreserved claims of error involving the plea taking
procedure amounted to plain, outcome determinative error.




7
  We note that respondent cites State v ANJ, 168 Wash 2d 91; 225 P 3d 956 (2010), to support
his argument. While this case is instructive on the issue, cases from other jurisdictions are not
precedentially binding on this Court. Auto Owners Ins Co v Seils, 310 Mich App 132, 147 n 5;
871 NW2d 530 (2015).



                                                -9-
                      III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Respondent raises several claims of ineffective assistance of counsel regarding defense
counsel’s alleged deficient performance in failing to investigate or challenge the competency
evaluation. He further argues that his counsel rendered ineffective assistance in failing to
advocate for in-home placement at the dispositional hearing. He requests remand for a Ginther
hearing on the issue of ineffective assistance of counsel. However, on the record before us,
respondent has not demonstrated a claim of ineffective assistance or the need for an evidentiary
hearing.

                                 A. STANDARD OF REVIEW

        Respondent did not raise his claim of ineffective assistance of counsel before the trial
court, and thus, this issue is not preserved for our review. People v Heft, 299 Mich App 69, 80;
829 NW2d 266 (2012) (citations omitted). Further, this Court previously denied respondent’s
motion for remand for a Ginther hearing concerning the alleged ineffectiveness of his counsel.
Accordingly, respondent’s claim of ineffective assistance is not preserved and this Court’s
review is limited to mistakes apparent on the existing record. Id.

        “Generally, whether a defendant had the effective assistance of counsel ‘is a mixed
question of fact and constitutional law.’ ” Id., quoting People v LeBlanc, 465 Mich 575, 579;
640 NW2d 246 (2002). “This Court reviews findings of fact for clear error and questions of law
de novo.” Heft, 299 Mich App at 80. “A criminal defendant has the fundamental right to
effective assistance of counsel.” Id., citing US Const, Am VI; Const 1963, art 1, § 20.
“However, it is the defendant’s burden to prove that counsel did not provide effective
assistance.” Heft, 299 Mich App at 80. “To prove that defense counsel was not effective, the
defendant must show that (1) defense counsel’s performance was so deficient that it fell below
an objective standard of reasonableness and (2) there is a reasonable probability that defense
counsel’s deficient performance prejudiced the defendant.” Heft, 299 Mich App at 80-81; see
also People v Pickens, 446 Mich 298, 302-303, 521 NW2d 797 (1994). “The defendant was
prejudiced if, but for defense counsel’s errors, the result of the proceeding would have been
different.” Heft, 299 Mich App at 81, citing Pickens, 446 Mich at 312. “To establish ineffective
assistance in the context of a guilty plea, courts must determine whether the defendant tendered a
plea voluntarily and understandingly.” People v Thew, 201 Mich App 78, 89; 506 NW2d 547
(1993) (citation omitted).

                           B. COMPETENCY DETERMINATION

        Respondent first claims that his counsel was ineffective because he failed to investigate
or challenge the sufficiency of the competency evaluation. We disagree.

        “[J]uveniles have a due process right not to be subjected to the adjudicative phase of
juvenile proceedings while incompetent[.]” Carey, 241 Mich App at 226. Under the statutory
scheme for determining competency in juvenile adjudications, “[a] juvenile 10 years of age or
older is presumed competent to proceed unless the issue of competency is raised by a party.”
MCL 712A.18n(1). A “juvenile,” a person under age 17 who is the subject of a delinquency
petition, is “incompetent to proceed” if “based on age-appropriate norms, [he] lacks a reasonable

                                              -10-
degree of rational and factual understanding of the proceeding or is unable to” “[c]onsult with
and assist his or her attorney in preparing his or her defense in a meaningful manner[]” or
“[s]ufficiently understand the charges against him or her.” MCL 712A.1(1)(h) & (i). A trial
court, as here, may order a competency evaluation directed to developing information relevant to
a determination of the juvenile’s competency to proceed in a court proceeding, which must be
conducted by a “qualified juvenile forensic mental health examiner” who will provide the court
with an opinion whether the juvenile is competent to proceed. MCL 712A.1(1)(b); MCL
712A.18o(1); MCL 712A.18n(2). The statutory scheme sets forth specific requirements of the
competency evaluation, several of which respondent alleges defense counsel failed to challenge
or investigate in violation of his right to the effective assistance of counsel.

       First, respondent asserts that his counsel was ineffective because he failed to ensure that
the examiner received and examined respondent’s school records, medical records, psychiatric
records, and child protective services records as required under MCL 712A.18p(2). We
disagree.

        Regarding respondent’s school records, the evaluation indicates that the examiner did, in
fact, receive and examine those records, and thus, respondent has not shown how he was
prejudiced by defense counsel’s alleged failure to ensure that the examiner received and
examined his school records. Heft, 299 Mich App at 80-81. The report specifically states that
the examiner received “a set of transcripts and discipline referral notices from Beacon Day
Treatment School,” and specifically refers to school records, including respondent’s latest report
card, his “IEPC,” and a progress report indicating that he has received warnings for
insubordination and that a teacher found him pushing and hitting another student. Respondent
does not assert that the school records, referred to in the evaluation, were incomplete or lacking
in any respect. This claim of ineffective assistance fails.

       Regarding any medical or psychiatric records, the report suggests that there most likely
existed medical records and, possibly psychiatric records, that might have been relevant to the
competency evaluation that defense counsel should have provided to the examiner under MCL
712A.18p(2). However, it is also evident that the examiner considered respondent’s emotional
and intellectual limitations in evaluating his competency8 and, moreover, respondent did not
present medical or psychiatric records to support his claim, nor did he assert how such records
might have otherwise impacted the competency evaluation. Respondent carries the burden to
prove his claim of ineffective assistance of counsel, Heft, 299 Mich App at 80, and he has not
shown that counsel’s alleged failure to ensure that the examiner received the records prejudiced
the outcome of the proceedings. Likewise, while the evaluation suggests that child protective



8
  The examiner performed an assessment of respondent’s intelligence, as required under MCL
712A.18p(5)(b)(iii), which assessed him in the “Low Average Range” of intellectual functioning,
recognized that he has been diagnosed with “Autism Spectrum Disorder,” identified behavioral
issues, participated in a special education program, and indicated that he receives counseling and
takes medications for sleep, dizziness, and restlessness, which significantly improved his
behavioral issues.


                                              -11-
services records likely existed, respondent again failed to present any records or assert how the
records would have created any doubt regarding his competency to proceed. Respondent has not
shown that defense counsel’s alleged failure to ensure that the examiner received medical,
psychiatric, or child protective services records prejudiced the proceedings. Therefore, his claim
of ineffective assistance on this ground fails.

       Respondent next asserts that his counsel was ineffective for failing to challenge whether
the examiner was a “qualified juvenile forensic mental health examiner” as required under MCL
712A.18o(1). We disagree.

        Respondent correctly asserts that counsel did not question whether the examiner was
qualified pursuant to the statutory requirements before stipulating to respondent’s competency.
However, respondent does not assert or present any offer of proof that the examiner was not a
“qualified forensic mental health examiner” within the meaning of the statute, nor is it evident
from the record that the examiner was not qualified. To the contrary, the report indicates that the
competency evaluation was performed by Amorie Robinson, Ph.D., a licensed psychologist of
the Clinic for Child Study, who assessed respondent using the Juvenile Adjudicative
Competency Interview and considered the appropriate factors outlined in MCL 712A.18p, which
governs juvenile competency evaluations. Thus, respondent has not shown that he was
prejudiced by counsel’s failure to inquire on the record regarding the examiner’s qualifications
and this claim of ineffectiveness fails.

        Respondent next asserts that his counsel was ineffective because he failed to challenge
the examiner’s lack of compliance with MCL 712A.18p(5)(b)(ii), which requires that the report
shall contain an assessment of respondent’s current medications on his mental state and behavior.
We disagree. The competency report indicates that the examiner did comply with the statutory
requirement by considering his current medications prescribed for “sleep, dizziness (vertigo),
and restlessness[]” and that the medications have positively impacted his mental state and
behavior. Respondent does not assert otherwise. As such, this claim is not supported by the
record.

         Respondent next asserts that his counsel’s performance was deficient because he failed to
generally challenge or investigate the competency evaluation’s assessment of respondent’s
ability to “both factually and rationally understand the nature and object of the proceedings and
his ability to extend thinking into the future and to render meaningful assistance to his attorney in
the preparation of the case” as required under MCL 712A.18p(5)(c)(i). We disagree. It is
evident from the report that the examiner thoroughly considered these factors in assessing
respondent’s competency. Further, respondent does not assert why, or provide any factual
support indicating that, the examiner’s assessment of these factors was somehow incorrect or
improper. Therefore, he cannot establish a reasonable probability that counsel’s failure to
challenge or further investigate these factors would have impacted the outcome of the
competency determination. Again, respondent has failed to satisfy his burden to prove his claim
of ineffective assistance.

      Respondent next argues that his counsel was ineffective because he failed to investigate
whether he suffered from any mental illness that could have affected his competency to proceed.
We disagree.

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        MCL 712A.18p(5)(b)(ii) provides that the clinical assessment must include “[t]he
diagnosis and functional impact of mental illness, developmental disability, or cognitive
impairment.” The examiner in this case identified respondent’s diagnosis of Autism Spectrum
Disorder and his intellectual and emotional limitations but did not indicate a mental illness.
Although a court-ordered neurology evaluation performed in June 2017 indicates that respondent
may possibly be suffering from a mental illness, this was several months after the August 2016
court-ordered competency evaluation and the November 2016 adjudication. At the time of the
adjudication, respondent’s counsel had the benefit of the competency evaluation, indicating that,
despite respondent’s emotional and intellectual limitations, he was competent to proceed.
Notably, the competency evaluation indicated that respondent denied any past hospitalizations
for mental health reasons, episodes of suicidal or homicidal ideation, and any past or current
experiences of hallucinations or delusions (and none were observed). Further, there is nothing
indicating that respondent’s conduct at the plea proceeding raised any concern regarding his
competence. To the contrary, it is apparent that he answered the trial court’s questions in an
appropriate manner and indicated his understanding during the plea taking proceeding. There is
no sign respondent suffered from a mental illness that impaired his competency at the time of the
plea-taking proceeding. Therefore, respondent has not shown that defense counsel’s alleged
failure to investigate the possibility of a mental illness fell below an objective standard of
reasonableness.

        Moreover, respondent sets forth no offer of proof that the possibility of a mental illness
impaired his competency to proceed at the time of the adjudication. Thus, respondent has also
failed to establish a reasonable probability that the outcome of these proceedings were prejudiced
by counsel’s lack of investigation into the possibility of a mental illness. Heft, 299 Mich App at
80-81. Again, respondent has failed to satisfy his burden of establishing his claim of ineffective
assistance.

                C. FAILURE TO ADVOCATE FOR IN-HOME PLACEMENT

        Respondent finally argues that his counsel was ineffective because he failed to advocate
at the dispositional hearing for an in-home placement. We disagree. While respondent’s counsel
certainly could have argued more vehemently for in-home placement, respondent cannot
establish a reasonable probability that, but for his failure to do so, the result of the proceeding
would have been different.

        Under MCL 712A.18(1), the trial court may enter an order of disposition “appropriate for
the welfare of the juvenile and society . . . .” Here, even though the Clinic for Child Study
recommended in-home placement, and the prosecutor expressed support of the Clinic’s
recommendations, the trial court articulated its belief that in-home placement would not provide
enough oversight or intensity of services and ordered out-of-home placement for respondent. On
this record, respondent has not shown a reasonable probability that defense counsel’s failure to
offer additional argument for in-home placement would have resulted in a different disposition.




                                               -13-
        We conclude that respondent has not established a claim of ineffective assistance of
counsel or that remand for Ginther hearing is warranted to further pursue his claims.

       Affirmed.



                                                        /s/ Thomas C. Cameron
                                                        /s/ Kathleen Jansen
                                                        /s/ Peter D. O'Connell




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