                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 14, 2015
                Plaintiff-Appellee,

v                                                                   No. 320783
                                                                    Tuscola Circuit Court
NATHAN LLOYD HEMINGWAY,                                             LC No. 11-012121-FH

                Defendant-Appellant.


Before: RIORDAN, P.J., and JANSEN and FORT HOOD, JJ.

PER CURIAM.

         Defendant was convicted following a jury trial of possession of burglary tools, MCL
750.116, conspiracy to possess burglar tools, MCL 750.157a and MCL 750.116, malicious
destruction of property greater than $1,000 but less than $20,000, MCL 750.377a(1)(b)(i),
conspiracy to commit malicious destruction of property greater than $1,000 but less than
$20,000, MCL 750.157a and MCL 750.377a (1)(b)(i), attempted larceny of property worth at
least $1,000 but less than $20,000, MCL 750.356(3)(a), and conspiracy to commit larceny of
property worth at least $1,000 but less than $20,000, MCL 750.157a and MCL 750.356(3)(a).
Defendant was resentenced as a fourth habitual offender, MCL 769.12, to serve 48 months’ to 30
years’ incarceration for the possession of burglary tools conviction, for the conspiracy to possess
burglary tools conviction, for the malicious destruction of property conviction, and for the
conspiracy to commit malicious destruction of property conviction. He was also sentenced to 48
months’ to 15 years’ incarceration for the attempt to commit larceny of property worth at least
$1,000 but less than $20,000 conviction and for the associated conspiracy conviction.

        Following an appeal as of right, this Court affirmed his convictions and sentences.
People v Hemingway, unpublished opinion per curiam of the Court of Appeals, issued March 12,
2013 (Docket No 308775). Subsequently, in an order denying leave, the Michigan Supreme
Court remanded to the trial court with orders to conduct a Ginther1 hearing on defendant’s “new
claim of ineffective assistance of counsel, which is premised on his first trial counsel’s alleged
conflict of interest.” People v Hemingway, 495 Mich 860; 836 NW2d 691 (2013). The Court
stated:


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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       [A] presumption of prejudice exists when a defendant’s former defense counsel
       joins the prosecutor’s office that is pursuing the case against the defendant.
       MRPC 1.9(b), 1.10(b). Such a presumption may be overcome, however, if the
       prosecutor shows that the attorney who had a conflict of interest was properly
       “screened from any participation in the matter . . . .” MRPC 1.10(b)(1). The
       circuit court on remand shall determine when the defendant’s former counsel’s
       employment with the Tuscola County Prosecutor’s office began and whether the
       prosecution rebutted the presumption of prejudice by showing that the former
       defense counsel was properly screened from any participation in the matter. [Id.]

On remand, the trial court conducted a Ginther hearing, and concluded that the prosecution had
rebutted the presumption of prejudice by showing that defendant’s former trial counsel, Michael
Hodges, was properly screened from participation in defendant’s case. Defendant now appeals
that holding as of right. We affirm.

       The sole issue on appeal is whether defendant was denied effective assistance of counsel
when Hodges accepted a position with the prosecutor’s office that was pursuing the case against
defendant. Defendant argues that the prosecution failed to overcome the presumption of
prejudice because the facts established at the Ginther hearing showed that Hodges was not
properly screened from participation. We disagree.

        The determination whether a defendant has been deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law. People v Trakhtenberg, 493
Mich 38, 47; 826 NW2d 136 (2012). The court must first find the facts and then decide whether
those facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel. People v Dendel, 481 Mich 114, 124; 748 NW2d 859, amended 481 Mich 1201 (2008).
The trial court’s factual findings are reviewed for clear error, while its constitutional
determinations are reviewed de novo. Id.           Regard should be given to the trial court’s
opportunity to assess the credibility of the witnesses who appeared before it. MCR 2.613(C);
Dendel, 481 Mich at 130. A finding is clearly erroneous when, although there is evidence to
support it, this Court, on the whole record, is left with a definite and firm conviction that a
mistake was made. Dendel, 481 Mich at 130.

        Both the United States Constitution and the Michigan Constitution guarantee criminal
defendants the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, §
20. “To demonstrate ineffective assistance of counsel, a defendant must show that his or her
attorney’s performance fell below an objective standard of reasonableness under prevailing
professional norms and that this performance caused him or her prejudice.” People v Nix, 301
Mich App 195, 207; 836 NW2d 224 (2013), citing People v Armstrong, 490 Mich at 289-290.
“To demonstrate prejudice, a defendant must show the probability that, but for counsel’s errors,
the result of the proceedings would have been different.” Nix, 301 Mich App at 207.

       When claiming ineffective assistance due to defense counsel’s conflict of interest, a
defendant must show that “an actual conflict of interest adversely affected his lawyer’s
performance.” People v Smith, 456 Mich 543, 556; 581 NW2d 654 (1998) (citation omitted).



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       A presumption of prejudice exists when a defendant’s former defense counsel joins the
       prosecutor’s office that is pursuing the case against the defendant. MRPC 1.9(b), 1.10(b).
       Such a presumption may be overcome, however, if the prosecutor shows that the attorney
       who has a conflict of interest was properly screened out from “any participation in the
       matter.” MRPC 1.10(b)(1). [People v Davenport, 483 Mich 906, 906; 762 NW2d 163
       (2009).]

In People v Davenport (After Remand), 286 Mich App 191, 195-197; 779 NW2d 257 (2009), this
Court affirmed the trial court’s finding that the prosecutor’s office properly screened the matter
when: both the attorneys and staff were notified about the conflict before trial; the attorneys and
staff understood that the conflicted attorney was to have no contact with the defendant’s file and
that he would not participate in any discussion, interviews, or meetings about the case; and the
conflicted attorney did not actually have any contact with the case file and did not participate in
discussions about the case. This Court concluded that defendant was not entitled to relief on the
ground that his defense counsel joined the prosecutor’s office

       because [defendant] failed to show that he was prejudiced by defense counsel’s
       error [in failing to raise the conflict issue at trial] and, after the trial court
       explored the matter on remand, the record does not indicate that he was
       prejudiced by [defense counsel’s] move to the prosecutor’s office. Again, the
       prosecution met its burden to show that the prosecutor’s office took adequate
       steps to prevent improper communications and consistently followed through with
       those steps, and no evidence showed that there were any improper
       communications about the case. [Id. at 196-197.]

        Here, a review of the facts shows that the trial court did not err in finding that the
prosecution overcame the presumption of prejudice. Dendel, 481 Mich at 124. Hodges began
representing defendant in 2011. At the time, Hodges worked for a law firm commonly known as
Kohl Harris. While Hodges’s representation of defendant was ongoing, he entered into
employment negotiations with the Tuscola County Prosecutor’s office and eventually accepted a
position sometime in late December 2011 or early January 2012. After accepting the position,
Hodges continued to represent defendant. The testimony showed that on January 3, 2012, he met
with defendant at the jail along with attorney Denis McCarthy, another attorney at Kohl Harris.
McCarthy testified that he attended the January 3, 2012 meeting with defendant because he was
going to represent defendant at trial instead of Hodges. Defendant, Hodges, and McCarthy
discussed defendant’s case during the meeting, including issues pertaining to trial strategy.
However, defendant was not informed that Hodges had accepted a position at the prosecutor’s
office. After the January 3, 2012 meeting, Hodges had no further communications with
defendant, but did continue to assist McCarthy in an advisory capacity. Defendant’s trial began
on January 10, 2012, and a verdict was delivered on January 12, 2012. McCarthy represented
defendant at trial. Hodges did not begin working for the prosecutor until January 17, 2012.

       At the Ginther hearing, Tuscola County Prosecuting Attorney Mark Reene explained
although the Tuscola County prosecutor’s office did not have a written policy to address the
potential conflict of interest that arose, there was a “blanket policy” that, no matter how minor
the previous involvement, Hodges would have “no involvement whatsoever” in any cases that he
had represented a criminal defendant. This policy was communicated to the staff at the

                                                -3-
prosecutor’s office before Hodges’s employment started. Reene also testified that he directed
Hodges not to discuss any of his former cases with the staff and Hodges testified that he never
disclosed any confidential information to the prosecution. Eric Wanink, the assistant prosecuting
attorney assigned to defendant’s case, noted that Hodges was delegated to district court matters
for several months after his employment began because, as a defense attorney for Kohl Harris,
Hodges had handled felony matters, and the prosecutor’s office had wanted to ensure that
Hodges had no contact with the felony files that he had previously worked on.

        Based on these facts, we conclude that the trial court did not clearly err in its finding that
the prosecution overcame the presumption of prejudice. Defendant claims that Hodges was
never told not to discuss his former cases with anyone or to withdraw from his former cases.
Contrary to defendant’s claim, Reene testified that Hodges was instructed not to discuss his prior
cases with staff at the prosecutor’s office. Further, while Hodges may not have technically
withdrawn from all his former cases, it was clear that he was not permitted to work on any of his
former cases.2 Defendant also asserts that the prosecution’s position fails because after accepting
the position at the prosecuting attorney’s office, Hodges was still secondarily involved in
defendant’s defense. While the testimony did reveal that Hodges remained involved in
defendant’s case, it was clear that he had no communications with the prosecutor’s office
regarding the case. Wanink, the assistant prosecutor trying defendant’s case, testified that
Hodges did not provide him with any confidential information about defendant’s case. Further,
Hodges did not begin working for the prosecutor’s office until after defendant’s trial. There is
nothing to show that, after accepting the position but still working for Kohl Harris, Hodges was
unable to assist in defendant’s case. Further, Hodges testified that he was not involved in any
post-conviction matters on either side of the case. While, Hodges did state that he may have
answered a question about sentencing posed to him by defense counsel, he did not discuss
sentencing or the case generally with the prosecution. Wanink similarly testified that Hodges did
not participate in defendant’s sentencing and that he did not discuss the sentencing with Hodges.

       Overall, defendant seems to assert that Hodges’s actions created a “strong indication” of
impropriety. However, the evidence does not support defendant’s claims of “divided loyalty” or
improper screening. Rather, the evidence showed that, upon starting his employment with the
prosecutor’s office, defendant was properly screened from participation in his former cases, and
no confidential information was exchanged regarding defendant’s case between Hodges and the
prosecution. Accordingly, the trial court did not err in finding that the prosecutor overcame the
presumption of prejudice.




2
  Defendant also relies on the fact that Wanink testified that several pleadings and documents
continued to list Hodges as the defense attorney even after Hodges began his position at the
prosecutor’s office. However, Wanink further testified the documents did not go to Hodges;
instead, they were mailed to Kohl Harris. We do not agree that this technical claim of error
establishes improper screening, especially in light of Wanink’s testimony that the documents
were not delivered to Hodges.


                                                 -4-
Affirmed.

                  /s/ Michael J. Riordan
                  /s/Kathleen Jansen
                  /s/ Karen M. Fort Hood




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