            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  June 4, 2019
              Plaintiff-Appellee,

v                                                                 No. 342280
                                                                  Wayne Circuit Court
KIZZY NICKERSON,                                                  LC No. 17-004206-01-FH

              Defendant-Appellant.


Before: SAWYER, P.J., and CAVANAGH and SERVITTO, JJ.

PER CURIAM.

        Defendant, Kizzy Nickerson, appeals as of right her jury trial convictions for
Explosives—Placing Offensive Substance with Intent to Injure, Causing Property Damage, MCL
750.209(1)(b); Explosives—Possession of Bombs with Unlawful Intent, MCL 750.210(2)(a);
Arson—Preparation to Burn a Dwelling, MCL 750.79(1)(d)(vi); and Fourth-Degree Arson, MCL
750.75(1). The trial court sentenced defendant as a fourth habitual offender, MCL 769.12, to 10
to 20 years’ imprisonment for each count, to be served concurrently. We affirm.

        A Detroit police officer witnessed defendant throwing a lit Molotov cocktail toward the
house of a local celebrity while on patrol. He and his partner extinguished the device on the
front lawn and arrested defendant. She was wearing a backpack that contained two bricks
similar to ones that had previously been thrown at the victim’s home, and had a book of matches
in her pocket. Defendant’s DNA was later found on the Molotov cocktail materials, along with
that of other individuals. Defendant’s statements to the officers revealed that she knew who
lived in the house.

       Defendant first argues that her trial counsel was ineffective because he failed to
adequately inform her of a plea offer. We disagree.

        Because defendant did not move for a new trial or an evidentiary hearing in the trial
court, our review is limited to mistakes apparent on the record. People v Heft, 299 Mich App 69,




                                              -1-
80; 829 NW2d 266 (2012).1 Ineffective assistance of counsel claims present mixed questions of
law and fact. People v Douglas, 496 Mich 557, 566; 852 NW2d 587 (2014). We review factual
findings for clear error, and review questions of constitutional law de novo. Id.

        In order to prevail on a claim of ineffective assistance of counsel, a defendant must
satisfy the two-part test set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L
Ed 2d 674 (1984). People v Dendel, 481 Mich 114, 124-125; 748 NW2d 859 (2008), amended
on other grounds 481 Mich 1201 (2008), People v Carbin, 463 Mich 590, 599-600; 623 NW2d
884 (2001). First, a defendant must establish deficient performance by counsel. Dendel, 481
Mich at 125. An attorney’s performance is deficient when counsel’s representation “fell below
an objective standard of reasonableness under prevailing professional norms.” People v Riley,
468 Mich 135, 140; 659 NW2d 611 (2003). Second, a defendant must establish that he was so
prejudiced by the deficient performance that, but for counsel’s errors, the result of the proceeding
would have been different. Dendel, 481 Mich at 125; Strickland, 466 US at 687, Carbin, 463
Mich at 600.

         Because a defendant has the burden of proving both deficient performance and prejudice,
it is also part of his or her burden to establish the factual predicate for the claim. Dendel, 481
Mich at 125. Additionally, the defendant also bears the heavy burden of rebutting the
presumption that his counsel’s assistance was effective, as well as that the action challenged was
a product of sound trial strategy. People v Plummer, 229 Mich App 293, 308; 581 NW2d 753
(1998).

        A defendant is entitled to the effective assistance of counsel during the plea-bargaining
process. Douglas, 496 Mich at 591-592 citing Lafler v Cooper, 566 US 156, 162; 132 S Ct
1376; 182 L Ed 2d 398 (2012).2 Defendant alleges that she was prejudiced because the defense
counsel’s ineffectiveness caused her to reject the plea offer. Therefore, she has the burden to
show that, “but for the ineffective advice of counsel there is a reasonable probability” that she
would have accepted the offer, that there were no intervening circumstances that would have
caused the prosecution to withdraw the offer, that the court would have accepted the terms of the
offer, and that either the conviction or the sentence under the offer would have been less severe
than the actual conviction and sentence were after trial. Douglas, 496 Mich at 592, citing Lafler,
566 US at 163-164.

        Defendant has provided no affidavit or offer of proof that would establish the factual
predicate of her claim—that her attorney did not advise her adequately of the consequences of
rejecting the plea deal. And, the record contains nothing that would show that counsel failed to
inform her of the consequences of accepting the plea deal.


1
 Following defendant’s conviction, she moved for remand for a Ginther1 hearing, but this Court
denied the motion.
2
  Claims that a defense counsel failed to inform a defendant of the consequences inherent in
accepting or rejecting a plea offer are subject to the same analysis as other claims of ineffective
counsel. Hill v Lockhart, 474 US 52, 58; 106 S Ct 366; 88 L Ed 2 203 (1985).


                                                -2-
        Defendant was present for all proceedings throughout the case. During a competency
hearing prior to trial, the prosecutor brought up the plea agreement she had previously discussed
with defense counsel. The specific plea offer was repeated on the record, in defendant’s
presence, and defense counsel informed the court that he and defendant had discussed the offer,
and she was “still rejecting” the offer. Although defendant had the opportunity to speak up if she
wanted more information or to accept the offer, she said nothing. Thereafter, defendant had
additional opportunities to voice concerns about the plea agreement or to assert that she wished
to accept the plea offer. During a final conference, for example, the trial court was again told
that an offer had previously been made, and it had been placed on the record. Defendant voiced
no concerns or objections. On the first day of trial, before a jury was selected, defense counsel
told the court that defendant did not wish to plead to anything, but that she requested that she
have a bench trial rather than a jury trial. Defendant again remained silent during the discussion
(during which the trial court denied her request to have a bench trial).

        A claim that counsel was ineffective necessarily fails when the defendant cannot establish
the factual predicate of his or her claim. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Because defendant failed to do so here, she has failed to establish that defense counsel was
ineffective on the basis of an allegedly uninformed plea offer or related consequences.

       Defendant next asserts that counsel was ineffective for failing to pursue an insanity
defense or make a claim that defendant was guilty but mentally ill. We disagree.

        The failure to call witnesses or present evidence can constitute ineffective assistance of
counsel only when it deprives the defendant of a substantial defense. People v Daniel, 207 Mich
App 47, 58; 523 NW2d 830 (1994). A substantial defense is one that might have made a
difference in the outcome of the trial. Id. A defense attorney is not, however, required to pursue
a meritless defense. See, e.g., People v Lloyd, 459 Mich 433, 449-451; 590 NW2d 738 (1999).

       A legal insanity affirmative defense requires proof that, “as a result of mental illness or
being mentally retarded as defined in the mental health code, the defendant lacked ‘substantial
capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or
conform his or her conduct to the requirements of the law.’ ” People v Carpenter, 464 Mich
223, 231; 627 NW2d 276, 280 (2001), quoting MCL 768.21a(1). By definition, legal insanity is
such an “extreme of mental illness” that “criminal responsibility does not attach.” People v
Ramsey, 422 Mich 500, 513–14; 375 NW2d 297 (1985).

        The defendant has the burden to establish insanity by a preponderance of the evidence.
Carpenter, 464 Mich at 231, citing MCL 768.21a(3). In order to present evidence related to
insanity at trial, a defendant must provide at least 30 days’ written notice and submit to a court-
ordered examination by a qualified professional. Id., citing People v Toma, 462 Mich 281, 292 n
6; 613 NW2d 694 (2000); MCL 768.20a(1), (2), (4). Either the defendant or the plaintiff may
also obtain an independent psychiatric examination. Carpenter, 464 Mich at 231.

         Here, defendant’s attorney requested the court to appoint an independent forensic
psychologist. The trial court issued an order appointing Dr. Michele Leno and specified that Dr.
Leno was to address the issues of defendant’s criminal responsibility and competency to stand
trial. In her amended report, Dr. Leno concluded that defendant has a “severe mental illness that

                                                -3-
could affect her judgment and lead her to act out antisocially and impulsively especially in the
absence of proper treatment.” However, she also stated that there was no record of defendant’s
treatment status around the time of the events that led to the charges in this case, and that the
doctor was, therefore, “unable to speak with certainty to [defendant’s] mental state in 2017” at
the time of the offense.

        In the absence of any evidence that she was legally insane at the time of the incident
underlying this matter, defendant could not have met her burden to prove this affirmative defense
by a preponderance of the evidence. Carpenter, 464 Mich at 230-231. Defense counsel’s
performance in not pleading an affirmative defense for which there was no evidence was not
deficient; rather, it was objectively reasonable under the circumstances. Ineffective assistance of
counsel cannot be predicated on the failure to make a frivolous or meritless motion or pursue a
meritless defense. Riley, 468 Mich at 142.

        With respect to pursuing a claim that defendant was guilty but mentally ill, defense
counsel was precluded by the trial court from presenting defendant’s history of psychiatric
illness or Dr. Leno’s statement at trial. While a defendant who does not meet the legal definition
of insanity may not “present evidence of some mental abnormality to negate the specific intent
required to commit a particular crime,” a defendant may introduce evidence of mental
abnormality if it is offered for a relevant purpose other than to establish lack of specific intent,
subject to a limiting instruction. People v Yost, 278 Mich App 341, 354-355; 749 NW2d 753
(2008), citing Carpenter, 464 Mich at 232 and MRE 105.

        First and foremost, a defendant may be found “guilty but mentally ill” only if the
defendant first asserts a defense of insanity under the requirements set forth in MCL 768.20a.
MCL 768.36. No defense of insanity consistent with the statutory requirements was provided
due to a lack of a specific finding that defendant was legally insane at the time of the charged
crimes. Second, as previously indicated, defense counsel made it clear that defendant advised
that she did not wish to plead to anything, indicating that a plea of guilty but mentally ill, if
offered, would have been rejected by defendant. Third, even if defendant had instructed defense
counsel to enter that plea and the trial court accepted the plea (or if defendant had presented
evidence at trial that she was mentally ill and the jury found her “guilty but mentally ill”)
defendant would still have been subject to the same sentence of 10 to 20 years in prison. MCL
768.36(3). This forecloses her ability to show the second element of her claim of ineffective
assistance—prejudice. See, e.g., Lloyd, 459 Mich 433 at 451 (failure to obtain a verdict of guilty
but mentally ill “would scarcely constitute prejudice” to a person convicted of first-degree
murder, who would still serve life in prison). In sum, defendant has not met her burden of
rebutting the presumption that her counsel’s assistance was effective, nor has she established that
counsel’s decisions were anything less than a product of sound trial strategy. Plummer, 229
Mich App at 308.

        Finally, defendant argues that the trial court denied defendant her constitutional right to
raise her mental health as a defense. Again, we disagree.

       Decisions to admit evidence, such as the mental health evidence in this case, are reviewed
for an abuse of discretion, though preliminary questions of law regarding admissibility are
reviewed de novo. People v Jackson, 498 Mich 246, 257; 869 NW2d 253 (2015). An abuse of

                                                -4-
discretion occurs when a trial court “makes an error of law.” Id. It is also an abuse of discretion
when an outcome chosen by the court “falls outside the range of principled outcomes.” People v
Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).

        “A criminal defendant has both state and federal constitutional rights to present a defense
. . . .” People v Steele, 283 Mich App 472, 488; 769 NW2d 256 (2009). It is an abuse of
discretion for a judge to exclude evidence that tends to prove a defense. Id., 283 Mich App at
488-489. However, the right to present a defense, although a “fundamental element of due
process,” is not absolute. People v Kowalski, 492 Mich 106, 139; 821 NW2d 14 (2012), citing
People v Hayes, 421 Mich 271, 279; 364 NW2d 635 (1984). “The accused must still comply
with ‘established rules of procedure and evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.’ ” Id. (citation omitted).

        Here, after hearing argument from both counsel, the trial court held, pursuant to
Carpenter, supra, that the psychological evaluation was inadmissible because legal insanity was
not a defense in this case. The court did not err in so holding, given that the primary argument
for admission of the evaluation was to prove a lack of intent. Absent a legal insanity defense, a
defendant may not “present evidence of some mental abnormality to negate the specific intent
required to commit a particular crime.” Yost, 278 Mich App at 354, citing Carpenter, 464 Mich
at 232. In explaining its ruling, the court specifically stated that defendant could certainly bring
the report to the jury “if you have a defense of insanity,” and asked the prosecutor to have
plaintiff’s expert on hand for rebuttal “just in case he does bring forth that defense.” Clearly, the
trial court did not preclude defendant from presenting any defense allowed under the laws of this
state and defendant did not argue below, and does not argue here, that there was any other proper
purpose for which this evidence could be admitted, absent an insanity claim. There is thus no
factual or legal basis for defendant’s argument that the trial court prevented her from presenting
a viable defense.

       Affirmed.



                                                              /s/ David H. Sawyer
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Deborah A. Servitto




                                                -5-
