                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 18, 2017
               Plaintiff-Appellee,

v                                                                   No. 324893
                                                                    Ionia Circuit Court
STEVEN BRADLEY MACKENZIE,                                           LC No. 2013-015962-FC

               Defendant-Appellant.



                                         ON REMAND


Before: SAAD, P.J., and BORRELLO and GADOLA, JJ.

PER CURIAM.

        On October 22, 2014, a jury convicted defendant of attempted murder, MCL 750.91, and
aggravated domestic assault, MCL 750.81a(2). The trial court sentenced defendant to 11 to 40
years’ imprisonment for attempted murder and 351 days in jail for aggravated domestic assault
with credit for 351 days served. Defendant appealed his convictions and sentences to this Court,
raising several issues including a claim of ineffective assistance of counsel. On April 26, 2016,
this Court affirmed defendant’s convictions and sentences, rejecting all of his claims on appeal. 1
Defendant applied for leave to appeal in our Supreme Court and on November 17, 2016, in lieu
of granting leave to appeal, our Supreme Court vacated the part of this Court’s judgment
addressing defendant’s claim of ineffective assistance of trial counsel with regard to trial
counsel’s handling of the withdrawal of defendant’s pre-trial nolo contendere plea. People v
MacKenzie, 500 Mich 889; 886 NW2d 709 (2016). Our Supreme Court remanded the matter to
this Court and directed this Court to remand the case to the Ionia Circuit Court to conduct an
evidentiary hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). Our
Supreme Court also directed this Court, at the conclusion of the Ginther hearing, to address
defendant’s ineffective assistance of counsel argument. Pursuant to that order, on December 19,




1
 People v MacKenzie, unpublished opinion per curiam of the Court of Appeals, issued April 26,
2016 (Docket No. 324893).


                                               -1-
2016, this Court remanded the case to the Ionia Circuit Court for a Ginther hearing.2 Following
the Ginther hearing, the circuit court denied defendant’s motion for a new trial, finding that
defendant was not denied the effective assistance of counsel. For the reasons set forth in this
opinion, we affirm.

                                              I. FACTS

       This case arises from defendant’s attack on his wife during the course of their divorce
proceedings. Defendant initially entered a Killebrew3 plea agreement on April 22, 2014, in
which he agreed to plead nolo contendere to assault with intent to do great bodily harm less than
murder (AWIGBH) in exchange for the prosecution dismissing the charges of attempted murder
and aggravated domestic assault, and recommending that the trial court sentence defendant to
time served.

       After the plea was accepted and entered in the record, the victim made a statement at
sentencing in which she requested that the trial court reject defendant’s plea and sentence him to
prison. She stated that she had read defendant’s psychological evaluation and “it sent chills
down [her] spine.” The victim informed the trial court that she wanted defendant to receive
mental health treatment because he was “a dangerous man.”

       Following the victim’s statement, the trial court acknowledged the Killebrew agreement
and stated, “[d]o the People have a position in this matter?” The prosecution responded as
follows:

         When we fashioned this plea agreement entered we did receive the psychological
         evaluation that was presented from the defense. It clearly painted a different
         picture and some concerns which I concur are big concerns for this victim. So
         that did change her position. We totally understand where she’s coming from
         with that. We do think there is a risk for him, so we completely understand what
         she’s stating. We also understand since the time of the plea agreement, they are
         indicating he had another suicidal threat at the jail, just one week prior to the PSI
         investigation interview. These are all big red flags and big concerns for the
         Prosecution. These things were not in the picture at the time we made the plea
         agreement. We are okay with letting him withdraw his plea and going back.

Defense counsel responded:

         [ ] I’m very concerned now that the Prosecutor wants to withdraw this and I’m
         very concerned that [the victim] is trying to make sure that my client is punished.

                                                ***


2
 People v MacKenzie, unpublished order of the Court of Appeals, entered December 19, 2016
(Docket No. 324893).
3
    People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982).


                                                 -2-
       A lot of people here are doing things that are just simply not right and if you think
       this report might influence you, I would suggest that you get all the psych reports
       that we have before deciding to take away this deal that we worked so hard to get.
       Indeed if your Honor does not follow the Killebrew, my client will seek to have a
       full trial on this matter. [Emphasis added.]

                                               ***

       I do not believe my client is a danger to anyone. If he is released today as the
       agreement with the People was, he will assist me as an accountant in trying to get
       everything organized for the divorce trial next week ... and that’s what I’m
       requesting your Honor to do, stick to the deal.

       The trial court and defense counsel then engaged in the following exchange:

       Trial Court. In this matter, having had an opportunity to review and reflect on the
       presentence investigation report as well as the comments of the victim here today
       and Counsel ... this Court has to be concerned about safety and in light of—just
       studies show that risk escalates in the midst of a divorce proceeding—in light of
       the circumstances of this offense, I can’t in good conscience, proceed with the
       agreement that had been reached. So I do afford Mr. MacKenzie the opportunity
       to withdraw his plea and will certainly afford him the right to a full trial in this
       matter. You’ve indicated he will exercise that right.

       Def. Counsel. Okay. Your Honor ... when my client put his plea on the record
       and your Honor stated on the record that if for any reason, my client was not
       going to be released on the 17th that he would be afforded a P.R. bond. So we are
       requesting that ...

        The case proceeded to trial and defendant was convicted and sentenced as set forth
above. Thereafter, as explained above, this Court affirmed defendant’s convictions and
sentences; then, pursuant to our Supreme Court’s order, this Court remanded the case to the trial
court for a Ginther hearing. At the Ginther hearing, defendant argued that, after he entered the
Killebrew agreement and was at the sentencing hearing, there should have been a direct inquiry
on the record regarding whether he wished to withdraw his plea and go to trial. Defendant called
Gregory Crockett, defendant’s attorney at the sentencing hearing, to testify as a witness.

         Crockett testified that he did not attempt to stop the sentencing hearing and ask defendant
if he wanted to go to trial because he and defendant had previously discussed in great detail
defendant accepting the plea. On June 12, 2014, defendant had told Crockett’s associate, James
Keathley, that he wished to withdraw his plea and go to trial. A motion was drafted, but was
never filed. The next day, Crockett and defendant’s former attorney, Steve Howard, went to the
jail to talk to defendant. They described to him the hurdles that he would face at trial and what
would happen if he was found guilty. Defendant eventually said that if he was going to get out
of jail, he would accept the plea deal.

      Crockett gave further reasons for not stopping the sentencing hearing to ask defendant if
he wanted to go to trial or explain the sentencing ramifications of either accepting or
                                                -3-
withdrawing the plea. Crockett had spoken with defendant in the back room before sentencing
and at the jail a few days earlier, and Crockett believed that defendant was “just a hair away”
from rejecting the plea. Defendant had said that his “gut” was telling him to go to trial. Based
on Crockett’s conversations with defendant, Crockett surmised that getting out of jail was most
important to defendant, so Crockett knew that if defendant was not going to get out of jail that
day, then he would not accept the trial court’s sentence. Crockett had previously explained the
sentencing guidelines to defendant. Defendant was hesitant to accept any plea and repeatedly
said that he wanted to go to trial despite the possible prison exposure, which Crockett had
communicated to him.

        Crockett testified that he received the presentence investigation report (PSIR) before the
sentencing hearing and reviewed it in detail with defendant. Defendant was aware that the
sentencing guidelines were 10 to 23 months for AWIGBH, and defendant was outraged that the
probation agent had recommended that the trial court exceed the Killebrew agreement and
impose a sentence of 23 to 120 months. Defendant talked about withdrawing his plea at that
point. Crockett believed that it was possible that the deal would fall through at the sentencing
hearing because of numerous comments in the PSIR. Crockett discussed the possibility of the
trial court exceeding the Killebrew agreement with defendant and defendant said that he would
go to trial if the trial court exceeded the agreement. This discussion occurred either on June 13,
2014, or when Crockett visited defendant another time before the June 17, 2014 sentencing
hearing. Just before the sentencing hearing, Crockett talked with defendant in the holding area to
make sure he was going to go through with the sentencing and not demand a trial. Crockett did
not ask the trial court what sentence it would impose because defendant was adamant that if he
did not get the deal, then he wanted a trial. In August 2014, the prosecution offered defendant
the same plea agreement, except with prison time, and defendant rejected it. Crockett did not
know if he could say that defendant would have withdrawn his plea if the trial court exceeded the
Killebrew agreement by one day or one week, but he believed defendant would have
“[d]efinitely” withdrawn his plea if the agreement had been exceeded by one month.

        Howard, defendant’s attorney at the time the plea was entered, testified that on the day of
the sentencing hearing, they discussed whether defendant wanted to take the deal and accept
prison, and defendant rejected the deal outright. Howard did not recall if this occurred before or
during the hearing. Howard testified that the deciding factor in defendant accepting the plea was
that the sentence would be time served.

        Lori Bonn, the probation/parole officer who prepared defendant’s PSIR, testified that she
recommended incarceration after her interview with defendant on May 22, 2014. During the
interview, defendant was fixated on the victim and repeatedly stated that she was out to get him.
He also stated that he should not have accepted the plea and that he regretted “being forced into a
bad decision.”

       However, defendant argued that the trial court violated MCR 6.310(B)(2) and that he
would have continued with the plea agreement if he had known the potential sentence. His
attorney’s failure to stop the trial court and make an inquiry was ineffective assistance of
counsel. Defendant would have taken the plea if the sentence would have been within a
reasonable range, but the range was unknown because there was no discussion. Defendant did
not accept the later plea offers because of how the first one “fell apart so horribly.”

                                                -4-
        The prosecution agreed that MCR 6.310(B)(2) was not strictly followed, but it argued
that the judge and lawyers who failed to notice were not acting unreasonably. Defendant never
wanted to accept a plea agreement and, according to his attorneys, the tipping point was that the
agreement would allow him to get out of jail. The prosecution argued that defendant was aware
that the probation agent was recommending that the agreement be exceeded and that a sentence
at the top of the guidelines be imposed. Trial counsel’s failure to stop the proceedings was
reasonable and did not prejudice defendant because they knew what the trial court’s sentence
would be. The prosecution maintained that there was no indication that defendant never wanted
to change his mind and he never took responsibility. Therefore, defendant was not prejudiced by
trial counsel’s conduct.

        The trial court held that defendant was not denied the effective assistance of counsel.
The court held that although the court rule was not strictly adhered to, Crockett “seemed to be
very much in touch with his client.” The trial court reasoned that defense counsel and defendant
were not surprised that the Department of Corrections recommended that the Killebrew
agreement not be followed. The trial court did not state a sentence on the record because it was
considering something more than what had been recommended. The trial court did not articulate
that on the record before Crockett made clear that defendant would not accept anything short of
being able to leave the courthouse that day. It appeared to the trial court that they had conferred
in advance and trial counsel knew his client’s wishes. Based on Crockett’s testimony that
defendant had said several times that his “gut feeling” was to withdraw the plea and go to trial,
and that Crockett had met with defendant before the sentencing hearing and another time, the
trial court found that trial counsel’s performance was not deficient. The trial court denied
defendant’s motion for a new trial.

                                          II. ANALYSIS

       Defendant argued that trial counsel was ineffective by failing to ask defendant whether he
wished to withdraw his plea and go to trial after being informed of the sentence the trial court
intended to impose.

       A defendant’s ineffective assistance of counsel claim is a mixed question of fact
       and constitutional law. When reviewing an ineffective assistance of counsel
       claim, this Court reviews for clear error the trial court’s findings of fact and
       reviews de novo questions of law. The trial court’s findings are clearly erroneous
       if this Court is definitely and firmly convinced that the trial court made a mistake.
       [People v Shaw, 315 Mich App 668, 671-672; 892 NW2d 15 (2016) (citations and
       quotation marks omitted).]

         “To establish ineffective assistance of counsel, a defendant must show (1) that counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms and (2) that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different.” Shaw, 315 Mich App at 672. “Effective assistance of
counsel is presumed, and [a] defendant bears a heavy burden of proving otherwise. A defendant
must also overcome a strong presumption that his counsel’s decisions were the result of sound
trial strategy.” People v Johnson, 315 Mich App 163, 174; 889 NW2d 513 (2016) (citations and
quotation marks omitted). “In demonstrating prejudice, the defendant must show the outcome of

                                                -5-
the plea process would have been different with competent advice.” People v Douglas, 496
Mich 557, 592; 852 NW2d 587 (2014) (citation and quotation marks omitted).

       MCR 6.310(B)(2) governs the withdrawal of a plea before sentencing and provides as
follows:

       (2) the defendant is entitled to withdraw the plea if

       (a) the plea involves an agreement for a sentence for a specified term or within a
       specified range, and the court states that it is unable to follow the agreement; the
       trial court shall then state the sentence it intends to impose, and provide the
       defendant the opportunity to affirm or withdraw the plea; or [Emphasis added.]

        There is no dispute that the trial court did not strictly follow MCR 6.310(B)(2) at the
sentencing hearing. The trial court indicated that it would not follow the sentence agreed to in
the plea agreement (time served), stating “I can’t in good conscience, proceed with the
agreement that had been reached.” The trial court failed to “state the sentence it intend[ed] to
impose” and “provide the defendant the opportunity to affirm or withdraw the plea.” MCR
6.310(B)(2)(a). This amounted to error. See People v Franklin, 491 Mich 916; 813 NW2d 285
(2012). Counsel should have been aware of the requirements of the court rule and requested that
the court adhere to the rule. Nevertheless, even assuming that counsel’s performance in this
respect amounted to deficient performance on an objective standard of reasonableness, defendant
cannot show that the deficient performance resulted in prejudice.

      In Franklin, 491 Mich at 916, our Supreme Court held that a trial court’s failure to adhere
to MCR 6.310(B)(2) did not warrant reversal under People v Carines, 460 Mich 750, 763; 597
NW2d 130 (1999), explaining:

       even if the error here was plain and resulted in outcome determinative prejudice,
       this Court still “must exercise its discretion in deciding whether to reverse.” []
       Under these circumstances, where the defendant did not just fail to object at
       sentencing, but also failed to object during the subsequent trial and waived his
       right to a jury trial, this Court is exercising its discretion in favor of not reversing
       the defendant’s convictions. Any other conclusion would be contrary to the rule
       that defendants cannot harbor error as an appellate parachute. [Franklin, 491
       Mich at 916 (quotations and citations omitted).]

         We find our Supreme Court’s holding in Franklin both instructive and controlling. Here,
like in Franklin, the unique facts and circumstances in this case show that, but for counsel’s
deficiency in failing to raise an objection, the outcome of the plea proceeding would not have
been different. Shaw, 315 Mich App at 672. Specifically, trial counsel had previously consulted
with defendant and was aware that defendant would not accept anything but the original
agreement, under which he would serve no further jail time. At the Ginther hearing, Crockett
testified that based on his prior discussions with defendant, he knew that if defendant was not
going to get out of jail that day, he would not accept the trial court’s sentence. Crockett testified
that defendant had said that if the trial court exceeded the agreement, then he would go to trial.
Crockett could not say that defendant would not have accepted one day or one week of jail time,

                                                 -6-
but he testified that defendant would have definitely withdrawn his plea if the sentence was for
one month and the probation agent’s recommendation was for a minimum sentence of 23
months. There is no indication that the trial court would have sentenced defendant to only one
day or one week of jail time. Thus, even if Crockett had asked the trial court to state the
sentence that it intended to impose and consulted with defendant, the record shows that the
outcome would have been the same—defendant would have rejected the plea and gone to trial.
See Douglas, 496 Mich at 592. Furthermore, while defendant’s attorney argued at the Ginther
hearing that defendant would have accepted a reasonable sentence, the trial court found
Crockett’s testimony to be more credible. Crockett testified that defendant was adamant that he
would not accept a prison sentence. Moreover, defendant subsequently rejected offers for the
same plea, except with prison time. Thus, under the facts and circumstances of this case,
defendant has not shown that, but for counsel’s failure to request the trial court state its intended
sentence on the record, the result of the plea process would have been different. Id.

        The record further reveals that after informing trial counsel of his decision not to accept
the plea, defendant never made an inquiry about the possibility of a plea. Thus, as was the case
in Franklin, defendant waited until after his trial and after he was sentenced to claim ineffective
assistance of counsel. Review of the facts and findings in this case coupled with our review of
relevant case law, leads this Court to conclude, in accordance with our Supreme Court’s holding
in Franklin, that we cannot condone the harboring of error as an appellate parachute. Franklin,
491 Mich at 916.

        Additionally, we view the holding in Franklin to be in accord with the Supreme Court’s
decision in Lafler v Cooper, 566 US 156; 132 S Ct 1376; 182 L Ed2d 398 (2012). In Lafler, the
Supreme Court stated, in relevant part, that while “[d]efendants have a Sixth Amendment right to
counsel…that extends to the plea-bargaining process,” “[t]he question for this Court is how to
apply Strickland’s prejudice test where ineffective assistance of counsel results in a rejection of
the plea offer and the defendant is convicted at the ensuing trial. Lafler, 566 US at 162-163. To
prevail on a claim of ineffective assistance of counsel, a defendant must meet two criteria: first,
he must “show that counsel’s performance was deficient. This requires showing that counsel
made errors so serious that he was not performing as the “ ‘Counsel’ guaranteed by the Sixth
Amendment.” Strickland, 466 US at 687. Second, the defendant must show that deficient
performance was prejudicial. Id. Determinations of prejudice in the context of plea negotiations
was set forth in Hill v Lockhart, 474 US 52, 59; 106 S Ct 366; 88 L Ed2d 203 (1985) wherein the
Court stated: “The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea process. In
other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is
a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Here, defendant has failed to make a showing that
counsel’s performance affected the outcome of the plea process. The testimony revealed, and the
trial court found that defendant would not accept any plea which required him to serve any
additional jail time. Our review of the record leads us to also conclude that defendant would not
have accepted any plea which required him to serve additional jail time. Therefore, even
presuming that counsel was ineffective by failing to inquire of the trial court what sentence it
would have given defendant, we cannot find that defendant suffered prejudice under the facts
specific to this case. Accordingly, defendant is not entitled to relief.


                                                -7-
Affirmed.



                  /s/ Henry William Saad
                  /s/ Stephen L. Borrello
                  /s/ Michael F. Gadola




            -8-
