                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 5, 2017
               Plaintiff-Appellee,

v                                                                   No. 331457
                                                                    Eaton Circuit Court
JAMES EVERETT FRISON,                                               LC No. 15-020116-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        Defendant appeals by right his conviction, after a jury trial, of embezzlement of property
worth between $50,000 and $100,000, MCL 750.174. The trial court sentenced defendant as an
habitual offender, fourth offense, to 9 to 25 years’ imprisonment, MCL 769.12. The property in
question is a Komatsu brand excavator owned by a company owned by the complainants,
Barbara and Kees Vandervelden. The complainants had hired defendant to move seven pieces of
equipment, including the Komatsu, in a specified order. During the transport, problems arose,
the exact nature of which is disputed between defendant and the complainants. The Komatsu did
not arrive at its intended destination and was instead found, after the complainants had already
reported it stolen and collected on an insurance claim, somewhere in Lansing. We remand this
matter to the trial court for a Ginther hearing. People v Ginther, 390 Mich 436; 212 NW2d 922
(1973).

       Defendant raises a number of issues on appeal, most of which we decline to address
because we are persuaded that a Ginther hearing is in order.

        Although defendant’s trial counsel suggested (in a letter to defendant’s appellate counsel)
that defendant pursue an “ineffective assistance of trial counsel” argument on appeal, based on
his failure to obtain certain telephone and repair records, it is for the trial court to determine
whether those records would have made any difference at trial.

        Reviewing courts generally presume that counsel has provided effective assistance, and
the defendant has the burden to overcome this presumption. People v Davis, 250 Mich App 357,
368-369; 649 NW2d 94 (2002).

              A defendant must meet two requirements to warrant a new trial because of
       the ineffective assistance of trial counsel. First, the defendant must show that

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       counsel’s performance fell below an objective standard of reasonableness. In
       doing so, the defendant must overcome the strong presumption that counsel’s
       assistance constituted sound trial strategy. Second, the defendant must show that,
       but for counsel’s deficient performance, a different result would have been
       reasonably probable. [People v Armstrong, 490 Mich 281, 289-290; 806 NW2d
       676 (2011); see also Strickland v Washington, 466 US 668, 687; 104 S Ct 2052;
       80 L Ed 2d 674 (1984).]

        “ ‘A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ It is not enough ‘to show that the errors had some conceivable effect on the outcome
of the proceeding.’ ” Harrington v Richter, 562 US 86, 104; 131 S Ct 770; 178 L Ed 2d 624
(2011), quoting Strickland, 466 US 668 at 693-694.

        The reviewing court must make every effort “to eliminate the distorting effects of
hindsight,” Strickland, 466 US at 689, including being mindful that no expectation should exist
“that competent counsel will be a flawless strategist or tactician,” Harrington, 562 US at 110.
“[A]n attorney may not be faulted for a reasonable miscalculation or lack of foresight or for
failing to prepare for what appear to be remote possibilities.” Id. A reviewing court should
“affirmatively entertain the range of possible reasons . . . counsel may have had for proceeding
as they did.” Cullen v Pinholster, 563 US 170, 196; 131 S Ct 1388; 179 L Ed 2d 557 (2011)
(internal quotation marks and citation omitted).

        Furthermore, defense counsel’s decision regarding the choice of legal theories to present
is presumed to be an exercise of trial strategy—and “a particular strategy does not constitute
ineffective assistance of counsel simply because it does not work.” People v Davis, 250 Mich
App 357, 368; 649 NW2d 94 (2002); see also People v Matuszak, 263 Mich App 42, 61; 687
NW2d 342 (2004).

         While the failure to present evidence can be deemed ineffective assistance of counsel if it
deprives defendant of a substantial defense, People v Hyland, 212 Mich App 701, 710; 538
NW2d 465 (1995), vacated in part on other grounds, 453 Mich 902 (1996), the trial court should
determine whether the threshold has been met in this case. Defendant and his trial counsel state
that if the jury had been presented with certain records, they would have corroborated his version
of events, and the jury would have believed him, over complainants. Therefore, the trial court
needs to make a determination if the failure to present this evidence deprived defendant of a
substantial defense, as his trial counsel believes it has.

        This case is essentially a “he said, she said” case, with defendant claiming that the
complainants knew of the location of their property and that he did not allow anyone to use it,
and with the complainants claiming to the contrary that defendant professed to having delivered
the Komatsu excavator as instructed. It is therefore unclear whether defendant can show that “a
different result would have been reasonably probable” if trial counsel had obtained the records in
question. Armstrong, 490 Mich at 290. We note that defendant’s trial counsel actually admitted
that he was ineffective. Ordinarily, this Court defers to trial counsel’s judgment and avoids
“second guessing” tactical decisions and strategies, particularly with the benefit of hindsight.
Harrington, 562 US at 105-111. Here, however, trial counsel himself obviated such concerns.
Specifically, trial counsel made no attempt to secure telephone records that would have


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supported defendant’s testimony and contradicted the complainants’ testimony; and he also
failed to secure evidence that defendant had a trailer repaired, again consistent with defendant’s
testimony and contrary to the complainants’ testimony. Additionally, defense counsel admits
that the owner of the repair shop had an actual memory of defendant and the trailer but defense
counsel did not subpoena him.

        On this record, we hold that defendant has not at this juncture established the “factual
substantiality” of his ineffective assistance of counsel claim, see Ginther, 390 Mich at 443.
However, we also conclude that defendant has sufficiently demonstrated the potential merit of
that claim to warrant a remand for an evidentiary hearing in the trial court to aid appellate review
of his claim. See People v Hernandez, 443 Mich 1, 14-15; 503 NW2d 629 (1993), abrogated on
other grounds by People v Mitchell, 454 Mich 145; 560 NW2d 600 (1997); see also MCR
7.211(C)(1)(a)(ii). We therefore are providing defendant an opportunity to demonstrate at a
Ginther hearing that trial counsel’s failure to present the evidence in question deprived him of a
substantial defense, and that, if that evidence had been presented to the jury, it would have
corroborated defendant’s version of events such that there is a reasonable probability that the
jury would have concluded that the prosecution had not proved its case beyond a reasonable
doubt. See Armstrong, 490 Mich at 290.

       Remanded for a Ginther hearing. We retain jurisdiction.

                                                             /s/ Jane E. Markey
                                                             /s/ Amy Ronayne Krause
                                                             /s/ Mark T. Boonstra




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                              Court of Appeals, State of Michigan

                                                ORDER
                                                                              Jane E. Markey
People of MI v James Everett Frison                                               Presiding Judge

Docket No.     331457                                                         Amy Ronayne Krause

LC No.         15-020116-FH                                                   Mark T. Boonstra
                                                                                  Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

                Proceedings on remand in this matter shall commence within 21 days of the Clerk’s
certification of this order, and they shall be given priority on remand until they are concluded. The
proceedings on remand are limited to the matters indicated in this Court’s opinion.

              The parties shall promptly file with this Court a copy of all papers filed on remand.
Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand.

               The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completion of the proceedings.



                                                             /s/ Jane E. Markey




                                December 5, 2017
