                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 14, 2016
                Plaintiff-Appellee,

v                                                                    No. 316879
                                                                     Macomb Circuit Court
SAAD AKRAM BAHODA,                                                   LC No. 2011-003631-FC

                Defendant-Appellant.


Before: TALBOT, C.J., and MURRAY and SERVITTO, JJ.

PER CURIAM.

        Defendant was charged with assault with intent to commit murder, MCL 750.83. A jury
convicted him of the lesser offense of assault with intent to do great bodily harm less than
murder, MCL 750.84, for which he was sentenced as a second-offense habitual offender, MCL
769.10, to 3 to 15 years in prison, to be served consecutive to a sentence defendant was serving
while on parole. The trial court denied defendant’s posttrial motions for a new trial due to
ineffective assistance of counsel and declined to conduct a Ginther1 hearing. We affirm.

                                      I. BACKGROUND FACTS

        Defendant’s conviction arose from an incident at a “hookah lounge” located next to a
restaurant where defendant was attending a family function. Defendant left the restaurant,
intervened in a fight between his nephew and Nadeem Edward, and ended up cutting Edward
with a pocketknife. Defendant testified at trial that he used his knife against Edward in self-
defense. Defendant filed two posttrial motions for a new trial based on ineffective assistance of
counsel. One motion was filed by counsel and alleged that trial counsel, Steven Kaplan, was
ineffective for failing to request a jury instruction on self-defense. The other motion was filed by
defendant and alleged additional claims against Kaplan, as well as claims against two other
attorneys, Robert Berg, who previously represented defendant,2 and Brian Legghio, who


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
 The offense occurred while defendant was on parole from a life sentence, thereby subjecting
him to consecutive sentencing. MCL 768.7a(2). In an apparent attempt to prevent defendant’s
return to prison, defendant’s sister, Ekbal “Kim” Attisha, and his girlfriend, Natalie Allie,
obtained affidavits from Edward and two witnesses in which they claimed to have misidentified

                                                -1-
allegedly consulted defendant, but never represented him. The trial court denied both motions
without conducting a Ginther hearing even though the parties had initially agreed to a Ginther
hearing on the issue raised in counsel’s motion.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Effective assistance of counsel is presumed and the defendant bears a heavy burden of
proving otherwise. People v Eloby (After Remand), 215 Mich App 472, 476; 547 NW2d 48
(1996). To establish that a defendant’s right to the effective assistance of counsel was so
undermined that it justifies reversal of an otherwise valid conviction, the defendant must show
that counsel’s representation fell below an objective standard of reasonableness and that the
representation so prejudiced the defendant as to deprive him of a fair trial. People v Pickens, 446
Mich 298, 302-303; 521 NW2d 797 (1994). To establish prejudice, the defendant must show
that there is a reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994).
Whether a defendant has been denied the effective assistance of counsel is a mixed question of
law and fact. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s
factual findings are reviewed for clear error, but this Court determines de novo whether the facts
properly found by the trial court establish ineffective assistance of counsel. Id.

                                     A. ATTORNEY BERG

        Berg, who represented defendant for a period of time but withdrew before trial, filed a
motion seeking to have Edward and two witnesses view a lineup to show that they were unable
to identify defendant. The motion was supported by the false affidavits.

         Defendant contends that Berg made a serious error by presenting the false affidavits
because he offered them to establish a defense of misidentification when the “real” defense was
self-defense. Defense counsel has a duty to investigate all potentially viable defenses and to
present all substantial defenses. People v Shahideh, 277 Mich App 111, 118; 743 NW2d 233
(2007), rev’d on other grounds 482 Mich 1156 (2008). Defense counsel can be ineffective if he
settles on a defense strategy without any prior investigation of the case. People v Trakhtenberg,
493 Mich 38, 43; 826 NW2d 136 (2012). Ineffective assistance of counsel can take the form of a
failure to investigate and present a particular defense if the defendant made a good-faith effort to
avail himself of a substantial defense. People v Kelly, 186 Mich App 524, 526; 465 NW2d 569
(1990). “A substantial defense is one that might have made a difference in the outcome of the
trial.” Id.

       The record shows that Berg argued that the witnesses had mistakenly identified defendant
as the person who cut Edward. By the time of trial, defendant testified that he struck Edward

defendant. Berg submitted these to the court. Further investigation showed that Edward’s
affidavit was executed under duress and the other two affidavits were forgeries. Apparently the
prosecutor considered charging defendant and Allie with witness tampering or obstruction of
justice. Defendant denied any involvement in the false affidavit scheme and moved to exclude
the affidavits from evidence at trial. Although defendant’s motion in limine was denied,
evidence of the false affidavit scheme was not presented at trial.

                                                -2-
with his knife, but did so in self-defense. There is nothing in the record to show that defendant
ever claimed that he acted in self-defense during the time he was represented by Berg and
counsel “cannot be found ineffective for failing to pursue information that his client neglected to
tell him.” People v McGhee, 268 Mich App 600, 626; 709 NW2d 595 (2005). Even assuming
Berg should have known that defendant intended to pursue a defense of self-defense rather than
mistaken identity, defendant was not prejudiced by the error because he was able to proceed with
his chosen defense at trial.

       Defendant also contends that Berg made a serious error by presenting the false affidavits
because the circumstances surrounding their production led to suspicion that defendant was
involved and that in turn led to the possibility that he could be charged with additional offenses.
Defendant contends that he was prejudiced because those possible charges prevented him “from
negotiating a favorable plea agreement” in that a “chance for a misdemeanor plea offer . . . was
taken off the table.” This claim is not supported by the record. The record indicates that Berg
and subsequent counsel pursued plea negotiations on behalf of defendant, who hoped for “a low
enough charge” that would allow him to “serve County Jail time,” but no agreement was ever
reached. The record does not indicate that a plea to a misdemeanor offense was offered and
revoked.

        Defendant also argues that Berg made a serious error by presenting the false affidavits
because it turned out that Allie was involved in their procurement. According to defendant, that
in turn led to the possibility that Allie could be criminally charged and it was only due to a grant
of immunity that she testified against defendant. Defendant has not shown that he was
prejudiced by the alleged error. There is nothing to indicate that Allie would not have testified
against defendant but for the alleged grant of immunity and the testimony she provided
established only that defendant was at the restaurant, that he went to the lounge after being
informed that his nephew needed his help, and that he later left and went home, which
corresponds with defendant’s own testimony. Allie had no information regarding what happened
when defendant went to the lounge and thus her testimony did not disprove or otherwise call into
question defendant’s testimony that he acted in self-defense, or Kaplan’s argument that
defendant lacked the requisite intent to commit murder or inflict great bodily harm.

         We also reject any suggestion that defendant was prejudiced, not by the fact that Allie
testified against him, but by the fact that her decision to testify “completely eliminated the
possibility of a ‘misidentification’ defense.” Apart from the fact that this contention is
completely contrary to defendant’s claim that self-defense, not misidentification, was the “real
defense,” defendant does not clearly explain how the prosecutor’s decision to call Allie
prevented him from claiming misidentification as a defense. Nor does defendant clearly explain
how this rendered Berg’s representation ineffective. While Berg revealed the existence of the
affidavits by using them to support his motion for a lineup, defendant does not contend and has
not shown that but for Berg’s action, the false affidavit scheme would not have been discovered.
Further, Berg had withdrawn from the case long before Allie obtained the alleged grant of
immunity and it was Kaplan who apparently decided against using the misidentification defense
that Berg had contemplated. Therefore, the record does not support defendant’s claim of
ineffective assistance of counsel against Berg.

                                   B. ATTORNEY KAPLAN

                                                -3-
        Defendant’s primary complaint against Kaplan is that he did not request an instruction on
self-defense after defendant testified that he acted in self-defense. “Failing to request a particular
jury instruction can be a matter of trial strategy.” People v Dunigan, 299 Mich App 579, 584;
831 NW2d 243 (2013). “This Court will not substitute its judgment for that of counsel regarding
matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.”
People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999). However, the trial strategy
must be sound, and “a court cannot insulate the review of counsel’s performance by [simply]
calling it trial strategy.” Trakhtenberg, 493 Mich at 52. Therefore, counsel may be found
ineffective with regard to a strategic decision if the strategy employed was not a sound or
reasonable one. People v Dalessandro, 165 Mich App 569, 577-578; 419 NW2d 609 (1988).
Counsel can be ineffective for failing to request an instruction if the instruction pertains to a
basic and controlling issue in the case. People v Ortiz, 249 Mich App 297, 311-312; 642 NW2d
417 (2001).

        Although defendant testified that he acted in self-defense, the law did not support a claim
of self-defense at the time of trial. Defendant apparently does not dispute that he used deadly
force. He contends that he was “justified in possessing and using” his knife in self-defense
because Edward and his friends presented a threat of serious harm. Under the common law,
“[t]he necessity element of self-defense normally requires that the actor try to avoid the use of
deadly force if he can safely and reasonably do so, for example by applying nondeadly force or
by utilizing an obvious and safe avenue of retreat.” People v Riddle, 467 Mich 116, 119; 649
NW2d 30 (2002) (footnote omitted). This is because if an attack can be safely avoided, the use
of deadly force is not necessary. Id. at 129. Because defendant was in a public place and could
have retreated back inside the lounge, he could not have utilized the common-law defense of
self-defense.

        The Self-Defense Act (SDA), MCL 780.971 et seq., modified the common-law duty to
retreat. Under the SDA, a person may use deadly force “with no duty to retreat” if he (a) is not
engaged in the commission of a crime, (b) is in a place he has the legal right to be, and (c)
“honestly and reasonably believes that the use of deadly force is necessary to prevent the
imminent death of or imminent great bodily harm to himself . . . .” MCL 780.972(1)(a).

       While the SDA does not impose any duty to retreat, it does require that the defendant not
be engaged in the commission of a crime. Here, defendant was engaged in the commission of a
crime: he had a pocketknife concealed on or about his person, which was used as a dangerous
weapon (CCW), MCL 750.227(1). While the SDA “does not diminish an individual’s right to
use deadly force . . . in self-defense . . . as provided by the common law of this state in existence
on October 1, 2006,” MCL 780.974, this Court had long ago rejected self-defense as a defense to
CCW. People v Townsel, 13 Mich App 600, 601; 164 NW2d 776 (1968).

       When the crime was committed, the common-law defense of self-defense had been
recognized as a legitimate defense to the charge of felon in possession of a firearm, People v
Dupree, 486 Mich 693, 712; 788 NW2d 399 (2010), and as of the time of trial, Dupree had been
extended to a claim of self-defense under the SDA, People v Guajardo, 300 Mich App 26, 40;
832 NW2d 409 (2013), but those cases had not been extended to other possessory offenses such



                                                 -4-
as CCW.3 Because defendant did not have a legally viable claim of self-defense, Kaplan was not
ineffective for failing to request an instruction thereon. “Trial counsel’s failure to request an
instruction inapplicable to the facts at bar does not constitute ineffective assistance of counsel.”
People v Truong (After Remand), 218 Mich App 325, 341; 553 NW2d 692 (1996). Further,
while Kaplan could have argued for an extension of the law to CCW, which would in turn
warrant an instruction on self-defense, “defense counsel’s performance cannot be deemed
deficient for failing to advance a novel legal argument.” People v Reed, 453 Mich 685, 695; 556
NW2d 858 (1996) (footnote omitted). Therefore, Kaplan was not ineffective for failing to
request a self-defense instruction that was not available at the time of trial.

       Defendant also argues that Kaplan was ineffective because he failed to raise the fact that
Legghio had a conflict of interest, and failed to move to preclude Allie from testifying or to
disqualify the prosecutor due to that conflict of interest. The record shows that defendant
consulted Legghio on one occasion several months before trial, but did not retain him.
Defendant contends that Legghio later represented Allie and secured a grant of immunity for her
in exchange for her testimony, and that the rules against conflicts of interest prevented Legghio
from representing Allie after having consulted with defendant and this fact should have been
brought to the trial court’s attention.

        An issue of counsel’s conflict of interest implicates a defendant’s right to the effective
assistance of counsel. Cuyler v Sullivan, 446 US 335, 349-350; 100 S Ct 1708; 64 L Ed 2d 333
(1980). “In order to establish a violation of his Sixth Amendment rights, a defendant must
establish that an actual conflict of interest adversely affected his lawyer’s performance.” If such
a showing is made, the defendant “need not demonstrate prejudice in order to obtain relief.” Id.
at 349-350.

        At the time Legghio consulted with defendant, he did not have a conflict of interest.
Legghio allegedly had a conflict of interest at the time he represented Allie, but he did not
represent defendant at that time; defendant was represented by Kaplan. In fact, Legghio never
represented defendant. Even a case suggesting that a conflict of interest could arise from the fact
that defense counsel was consulted but not retained by a witness involved a situation in which
the defendant was represented by the lawyer who had been consulted by the witness. Freund v
Butterworth, 165 F3d 839, 856 (CA 11, 1999) (alleged conflict of interest where defense
counsel’s firm was previously consulted by a res gestae witness regarding an unrelated matter).
Further, defendant has not shown that Legghio’s alleged conflict of interest adversely affected
Kaplan’s performance such that Kaplan was rendered ineffective.

        Defendant contends that Kaplan was ineffective for failing to raise Legghio’s conflict of
interest because Legghio arranged for Allie to testify against defendant regarding “suspected
witness tampering,” i.e., the phony-affidavit scheme, in exchange for immunity, which “had


3
  In fact, as recently as last year, this Court declined to extend Dupree to a charge of CCW,
People v Triplett, 309 Mich App 252, 254-255; 870 NW2d 333 (2015), and it was not until this
year that the Supreme Court recognized the common-law defense of self-defense as a defense to
CCW. People v Triplett, ___ Mich ___; ___ NW2d ___ (2016) (Docket No. 151434).

                                                -5-
devastating consequences for Mr. Bahoda’s defense” such that Kaplan should have moved to
exclude “Allie’s harmful testimony.” The only harmful testimony Allie could have offered is
that defendant was involved in the false affidavit scheme. But Allie never offered such
testimony at trial and her actual testimony was consistent with defendant’s own testimony that he
was at the restaurant, went to the lounge, and later went home. Therefore, the alleged conflict of
interest that resulted in Allie testifying for the prosecution did not prejudice defendant.

        Defendant contends that through investigation of the false affidavit scheme, the
prosecutor secured Allie’s cooperation and threatened to reveal the scheme at trial and file
additional charges against defendant “unless he limited his trial defense.” This claim is not
supported by the record. When the affidavits were first presented, the trial court and Berg both
agreed that they would be admissible at trial for impeachment purposes, while the prosecutor
argued that they were admissible as substantive evidence as well. Later, both defendant and his
attorney moved to exclude the evidence. Counsel’s motion was denied before trial. At trial,
Kaplan advised the court that “in light of our defense,” the evidentiary hearing was not
necessary. He later stated that “in light of our defense in this case, the prosecution will not be
introducing evidence regarding the alleged witness tampering and intimidation.” The prosecutor
added, “I think we had made a record last Thursday at the final pretrial and that the statements by
the defense are still accurate today, and it’s going to be . . . yes, I did it. It’s just the level of
intent that they’re attacking rather than who did.” At best, this suggests that the parties may have
had an agreement that the prosecution would not introduce evidence regarding the false affidavit
scheme and implicate defendant in that scheme if defendant did not use the affidavits to impeach
the prosecution’s witnesses regarding their identification of defendant, not that the prosecution
somehow forced defendant to give up his defense of misidentification.

        Further, defendant was not precluded from presenting a misidentification defense. It
appears, however, that the only evidence of misidentification was the false affidavits. Apart
from the fact that it was defendant himself who sought to exclude the affidavits because he
denied any complicity in the scheme, Kaplan could not have used them to support a
misidentification defense because it was undisputed that they were false. Counsel’s “duty to
advocate the defendant’s cause . . . is limited to legitimate, lawful conduct”; counsel may not
assist the defendant “in presenting false evidence or otherwise violating the law.” Nix v
Whiteside, 475 US 157, 166: 106 S Ct 988; 89 L Ed 2d 123 (1986).

        To the extent defendant contends that Kaplan was ineffective for failing to present a
misidentification defense, that argument also fails. As noted, defense counsel’s duty is to
investigate all potentially viable defenses and to present all substantial defenses, Shahideh, 277
Mich App at 118, and although a defendant “may advance inconsistent claims and defenses,”
People v Cross, 187 Mich App 204, 205-206; 466 NW2d 368 (1991), the decision to argue one
defense over another is considered a matter of trial strategy. People v Hedelsky, 162 Mich App
382, 387; 412 NW2d 746 (1987). Thus, counsel’s decision to present one defense rather than
two inconsistent defenses constitutes reasonable trial strategy. People v Vaughn, 128 Mich App
270, 274; 340 NW2d 310 (1983). While the gist of the misidentification defense is not clear,
defendant ultimately testified that he was at the lounge and fought with Edward, which
contradicts any claim that he was not there or was there but was not involved in the fight. Thus,
it was not unreasonable for counsel to argue the single defense that defendant did assault
Edward, but lacked the requisite intent to commit murder or inflict great bodily harm. Id.

                                                 -6-
        Finally, defendant contends that Kaplan was ineffective for failing to move to disqualify
the assistant prosecutor, if not the prosecutor’s office as a whole, based on Legghio’s alleged
conflict of interest. As discussed earlier, Legghio did not have a conflict of interest that
implicated defendant’s right to the effective assistance of counsel because there was no conflict
of interest when he consulted with defendant, and he did not represent defendant when the
alleged conflict of interest arose. Further, it is the prosecutor or the prosecutor’s office that must
have a conflict of interest to warrant disqualification, as where the defendant is a former client of
the prosecutor, People v Doyle, 159 Mich App 632, 641; 406 NW2d 893 (1987), mod on
rehearing 161 Mich App 743; 411 NW2d 730 (1987), or where the “defendant’s former defense
counsel joins the prosecutor’s office that is pursuing the case against the defendant.” People v
Davenport, 483 Mich 906, 906; 762 NW2d 163 (2009). Because that is not what happened here,
Kaplan had no basis for moving to disqualify the prosecutor or his office. “[D]efense counsel is
not ineffective for failing to pursue a futile motion.” People v Brown, 279 Mich App 116, 142;
755 NW2d 664 (2008).

                                   C. APPELLATE COUNSEL

        As noted, the parties had initially agreed to a Ginther hearing on counsel’s motion for a
new trial. The hearing was delayed for more than a year because several attorneys appointed to
represent defendant on appeal were allowed to withdraw. By the time the matter came before the
trial court, appellate counsel asked that the court rule on the basis of the briefs alone. The parties
ultimately agreed to have the trial court determine whether a hearing was necessary to resolve
the issues raised in the motions, and the trial court determined that they lacked merit, and tacitly
concluded that a Ginther hearing was not necessary. And, because defendant’s claims of
ineffective assistance of counsel lack merit, further factual development of the record was
unnecessary. Therefore, the trial court did not abuse its discretion in declining to hold an
evidentiary hearing, People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008), and
appellate counsel was not ineffective for failing to demand a hearing.

                                   III. SENTENCING ISSUES

        Defendant raises two sentencing issues. First, he argues that he was sentenced on the
basis of inaccurate information, or the trial court misapprehended the law, because the trial court
erroneously believed that defendant would be required to serve a lesser sentence, of
approximately two to four years, on his prior conviction. We reject this argument because there
is nothing in the record to suggest that the trial court considered how much time defendant would
serve on his prior conviction when passing sentence. Instead, that issue was only discussed in
the context of a possible plea before trial. Additionally, both defendant and his attorney advised
the court that defendant may not be required to complete his life sentence and “error requiring
reversal cannot be error to which the aggrieved party contributed by plan or negligence.” People
v Griffin, 235 Mich App 27, 46; 597 NW2d 176 (1999). Most significantly, defendant and his
attorney disagreed on how much time defendant would have to serve on his life sentence and, at
the end of the discussion, the trial court recognized that defendant was going back to prison for
the parole violation even though it did not know how long defendant would serve for that
violation. At sentencing, the court sentenced defendant for assault with intent to do great bodily
harm conviction, without any comment on how much time defendant would be required to serve
for his parole sentence. Therefore, defendant has not shown a right to relief on this ground.

                                                 -7-
       Second, defendant argues that his sentence was based on impermissible judicial fact-
finding, contrary to People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). The trial court
addressed and decided this issue when considering defendant’s post-sentencing motion.
Therefore, we consider this issue preserved. People v Stokes, 312 Mich App 181, 192, 198; 877
NW2d 752 (2015).

        The core holding of Lockridge is that the 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[.]” Lockridge, 498 Mich at 364. To remedy this constitutional
violation, the Court severed MCL 769.34(2) to the extent that it makes the guidelines mandatory.
Id. at 391. Although the guidelines are no longer mandatory, “they remain a highly relevant
consideration in a trial court’s exercise of sentencing discretion” and thus the trial court must still
score the guidelines and “consult the applicable guidelines range and take it into account when
imposing a sentence.” Id. at 391-392.

        We agree that defendant’s 10-point score for OV 3, “bodily injury requiring medical
treatment occurred to a victim,” MCL 777.33(1)(d), was based on judicial fact-finding because
defendant’s conviction of assault with intent to do great bodily harm less than murder did not
require the jury to find either that defendant actually caused bodily injury, see People v Dillard,
303 Mich App 372, 378; 845 NW2d 518 (2013), or that any injury sustained by the victim
necessitated medical treatment, and these facts also were not admitted by defendant. Further, but
for judicial fact-finding in scoring OV 3, defendant would be in OV Level III (25 to 35 points),
instead of OV Level IV (35 - 49 points), and his sentencing guidelines range would be 10 to 23
months (or 10 to 28 months as a second-offense habitual offender), instead of 19 to 38 months
(or 19 to 47 months as a second-offense habitual offender). MCL 777.21(3)(a); MCL 777.65.
Because the trial court sentenced defendant before Lockridge was decided, when application of
the guidelines was mandatory, and judicial fact-finding in the scoring of OV 3 increased the floor
of defendant’s sentencing guidelines range, defendant has shown a Sixth Amendment violation.
However, we conclude that defendant is not entitled to appellate relief.

        The remedy for a Lockridge violation is to remand the case to the trial court to determine
whether it would have imposed a materially different sentence but for the constitutional error
(i.e., whether the court would have imposed a different sentence knowing that the guidelines are
advisory, and not mandatory). Lockridge, 498 Mich at 395-398; Stokes, 312 Mich App at 198-
199. In this case, that determination has already been made. The trial court had the opportunity
to reconsider its sentence when deciding defendant’s post-sentencing motion, which was heard
after Lockridge was decided. The court noted that “defendant’s sentence in this matter was
calculated on the basis of offense variables calculated in violation of the Sixth Amendment
pursuant to the holding in Lockridge.” It concluded, however, that “[n]otwithstanding the fact
that the guidelines were advisory, the Court finds that the sentence suggested by the guidelines
was reasonable,” and it stated that “even if the Court had recognized the guidelines as advisory
only at the time it imposed defendant’s sentence, the Court would nevertheless have rendered the
same sentence in this case.” Because the trial court has already re-evaluated defendant’s
sentence in light of Lockridge and determined that it would not have imposed a different
sentence if it had known that the guidelines were only advisory, and not mandatory, defendant is
not entitled to any additional relief.

                                                 -8-
Affirmed.



                  /s/ Michael J. Talbot
                  /s/ Christopher M. Murray
                  /s/ Deborah A. Servitto




            -9-
