                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 12, 2017
               Plaintiff-Appellee,

v                                                                  No. 332968
                                                                   Wayne Circuit Court
MICHAEL MARKO KATRANIS,                                            LC No. 15-009800-01-FH

               Defendant-Appellant.


Before: GLEICHER, P.J., and FORT HOOD and SWARTZLE, JJ.

PER CURIAM.

        Following a bench trial, defendant was convicted of placing an offensive or injurious
substance on personal property with intent to injure, MCL 750.209(1)(a), and fourth-degree
arson, MCL 750.75(1)(a)(i). The trial court sentenced defendant to serve concurrent prison
terms of 3 to 15 years for the placing an injurious substance on personal property conviction and
1 to 5 years for the arson conviction. Defendant appeals by right and we affirm.

        At 4:45 a.m. on November 4, 2015, defendant’s brother-in-law, Danny Whited, witnessed
someone dousing the truck belonging to defendant’s sister, Nicole Katranis, with gasoline and
lighting it on fire. The truck was parked outside Whited and Katranis’s home. Whited identified
defendant as the person he saw lighting the truck on fire. The defense theory at trial was that
defendant, who was recovering from ankle surgery, was not involved, and could not have been
moving around in the manner Whited described the person committing the arson.

       Defendant first argues that his trial counsel provided ineffective assistance by failing to
introduce medical evidence of his physical limitations resulting from his ankle surgery. We
disagree.

        Where defendant did not raise his claim of ineffective assistance of counsel in the trial
court,1 our review of defendant’s claim is limited to errors apparent on the record. People v


1
  This Court denied defendant’s motion seeking remand to the trial court on the basis of
ineffective assistance of counsel. People v Katranis, unpublished order of the Court of Appeals,
entered December 21, 2016 (Docket No. 332968).


                                               -1-
Unger, 278 Mich App 210, 253; 749 NW2d 272 (2008). The constitutional question whether
defendant was deprived of his right to counsel is reviewed de novo. Id. at 242.

       A defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963 art 1, § 20. As defendant points out, the “right to
counsel encompasses the right to the ‘effective’ assistance of counsel.” People v Cline, 276
Mich App 634, 637; 741 NW2d 563 (2007) (citations omitted).

               To establish a claim of ineffective assistance of counsel, a defendant must
       demonstrate that counsel’s performance was deficient in that it fell below an
       objective standard of professional reasonableness, and that it is reasonably
       probable that, but for counsel’s ineffective assistance, the result of the proceeding
       would have been different. [People v Jordan, 275 Mich App 659, 667; 739
       NW2d 706 (2007) (citation omitted.)]

The “[e]ffective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001) (citation
omitted). “This Court does not second-guess counsel on matters of trial strategy, nor does it
assess counsel’s competence with the benefit of hindsight.” People v Russell, 297 Mich App
707, 716; 825 NW2d 623 (2012).

        Defendant argues that trial counsel’s performance was deficient where medical evidence
of defendant’s ankle surgery and recovery was not introduced at trial. Katranis testified at trial
that defendant had been evicted from their home in the beginning of September 2015. She noted
that defendant broke his heel in August 2015, but she claimed that defendant was in a “cast or a
boot” and could “get around pretty good,” not “us[ing] the crutches all the time[ ]” when he left
their home. However, defendant’s brother, Jon Serda, testified that defendant broke his ankle
two weeks before defendant moved in with him, which he recalled to be in late September or
early October 2015. Serda testified that he transported defendant to an appointment at which
defendant’s hard cast was removed for a boot, and that this appointment took place after
November 4, 2015. Serda further testified that while defendant was living at his home, he could
only walk with the aid of crutches and that defendant “absolutely [could] not [ ]” run.2

       Defendant now argues that medical evidence would have impeached Katranis’s testimony
and demonstrated that defendant was physically impaired at the time of the arson. Defendant has
submitted medical documentation in support of his argument. A progress note dated October 23,
2015 confirms that defendant had surgery for a “calcaneal fracture[ ]” on September 5, 2015.
According to the progress note, defendant had been using crutches for ambulation and “ha[d]
been nonweightbearing to the left lower extremity[.]” The October 23 progress note indicated
that defendant’s fracture was healing without complications, and that he should “continue


2
  While we acknowledge that Katranis and Serda had differing recollections of when defendant
underwent surgery, and his level of physical movement following surgery, contrary to
defendant’s unsubstantiated assertion on appeal there is nothing in the record to suggest that
either witness was testifying falsely.


                                                -2-
nonweightbearing in a Cam boot.”3 Defendant was also instructed to increase his ankle joint’s
range of motion and follow up in two weeks. An orthopaedic technician progress note confirmed
that defendant’s cast had been removed on October 2, 2015. Thus, evidence that defendant had
surgery in early September and was ambulating with crutches as late as October 23, 2015 would
have conflicted with Katranis’s testimony that defendant had surgery in August, was in a boot in
early September and moving around with ease. Further, this evidence could have bolstered
defendant’s defense by supporting his assertion that he was physically incapable of running away
from the fire. According to defendant, the admission of this evidence would have confirmed
who was testifying truthfully, Katranis or Serda.

        However, “ ‘[d]ecisions regarding what evidence to present and whether to call or
question witnesses are presumed to be matters of trial strategy,’ which we will not second-guess
with the benefit of hindsight. Furthermore, the failure to call witnesses only constitutes
ineffective assistance of counsel if it deprives the defendant of a substantial defense.” People v
Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (opinion of COOPER, J.) (footnotes and
citations omitted; alteration in original). A review of the record confirms that trial counsel
presented the defense that defendant could not have committed the arson because he was
physically unable to do so. For example, trial counsel argued in closing that defendant was in a
hard cast as of November 4, 2015, and was physically unable to (1) run in the manner that
Whited testified to, or (2) participate in the arson at all. Therefore, trial counsel may have
reasonably surmised that it was best, as a matter of trial strategy, to avoid admission of the
medical evidence, particularly where the evidence would have suggested that defendant’s
mobility may not have been as significantly impaired as trial counsel asserted during trial.
Accordingly, where the medical records at issue did not support the defense strategy pursued at
trial, we are also not persuaded that trial counsel’s “strategic choices [were] made after less than
complete investigation[.]” People v Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012).

       As an aside, defendant’s citation to People v Armstrong, 490 Mich 290-291; 806 NW2d
676 (2011), is not persuasive. In Armstrong, defense counsel unsuccessfully attempted to
introduce the defendant’s cellular telephone records to rebut the complainant’s testimony that she
had never contacted the defendant by telephone, and counsel acknowledged that he had not made
the proper attempts to secure the custodian of the records to lay the proper foundation. Id. at
287-288. The cellular telephone records demonstrated that the complainant had contacted the
defendant on “hundreds” of occasions, id. at 286-287, and defense counsel conceded that he did
not have a strategic reason for his failure to introduce the cellular telephone records. The
Michigan Supreme Court acknowledged that “[a]dmission of the records would have caught the
complainant in a lie[,] . . . [and] [a]ny attorney acting reasonably would have moved for the
records’ admission, particularly when, as here, attacking the complainant’s credibility offered the
most promising defense strategy.” Id. at 290-291. In this appeal, as noted earlier in this opinion,
while Katranis and Serda gave differing accounts of when defendant had surgery and his




3
 A prescription dated October 23, 2015 from physician Brian G. Kissel, D.P.M. confirms that
defendant was prescribed the boot with a “[d]uration of [n]eed for 6 months.”


                                                -3-
mobility following surgery, the instant case does not present one where it was abundantly clear
from the record that a witness was giving false testimony.

        Even if we were to accept defendant’s argument that trial counsel’s performance fell
below an objective standard of reasonableness, Jordan, 275 Mich App at 667, defendant has not
met the second prong of an ineffective assistance of counsel claim. Counsel’s performance will
be deemed to have prejudiced the defense if it is reasonably probable that, but for counsel’s
error, “the result of the proceeding would have been different.” Id. (Citation omitted.) Put
simply, the medical evidence at issue would not have contradicted the evidence at trial clearly
identifying defendant as the individual who set his sister’s truck on fire. Here, Whited, rather
than Katranis, provided the testimony that identified defendant as the individual who set fire to
the truck. Whited testified that as he looked out a north window of his house from which he
could see Katranis’s truck, he observed defendant with a gas can walking from a vehicle in an
alley through a vacant lot to the truck, which he crouched behind, and then the truck ignited.
Whited had known defendant for over 20 years, he was his brother-in-law, defendant had resided
with him, and he was also familiar with the coat defendant was wearing at the time the arson was
committed. Whited further testified that defendant fell backwards when the fire ignited and then
ran off in the direction of the alley from which he came. Whited was also with Katranis when
she located a gas can in a dumpster in the same alley. On this record, we are not persuaded that
the result of defendant’s trial would have been different had the medical evidence been admitted.
Id.4

         Defendant next argues that the trial court erred in scoring Offense Variable (OV) 1, and
that trial counsel was deficient in failing to object to the scoring. We disagree.

       This Court reviews the trial court’s factual determinations at sentencing for clear error,
and the findings must be supported by a preponderance of the evidence. People v Hardy, 494
Mich 430, 438; 835 NW2d 340 (2013). “The interpretation and application of the legislative
sentencing guidelines . . . involve legal questions . . . review[ed] de novo.” People v McGraw,
484 Mich 120, 123; 771 NW2d 655 (2009) (footnote and citation omitted).

       Defendant argues that OV 1 should not have been scored at 20 points because he did not
use gasoline as a weapon against a victim.5 MCL 777.31(1) provides for the scoring of OV 1,
the aggravated use of a weapon, at 20 points where:



4
 To the extent that defendant claims in his brief on appeal that remand to the trial court for an
evidentiary hearing is necessary for us to consider defendant’s claim of ineffective assistance of
counsel, we conclude that no further “development of a factual record is required for appellate
consideration of the issue.” MCR 7.211(C)(1)(a)(ii).
5
   “A defendant is entitled to be sentenced by a trial court on the basis of accurate information.”
People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). A trial court relies on inaccurate
information when it sentences a defendant by consulting an inaccurate sentencing guidelines
range. Id. at 89 n 7.


                                                -4-
              (b) The victim was subjected or exposed to a harmful biological substance,
       harmful biological device, harmful chemical substance, harmful chemical device,
       harmful radioactive material, harmful radioactive device, incendiary device, or
       explosive device.

MCL 777.31(3)(b) provides that, “ ‘[i]ncendiary device’ includes gasoline or any other
flammable substance, a blowtorch, fire bomb, Molotov cocktail, or other similar device.” In
People v Ball, 297 Mich App 121, 125; 823 NW2d 150 (2012), this Court, turning to a
dictionary, stated that the definition of a weapon in MCL 777.31 included “anything used against
an opponent, adversary, or victim[.]” A victim is “each person who was placed in danger of
injury or loss of life . . . .” MCL 777.31(2)(a). Thus, the trial court properly scored OV 1 at 20
points if a victim was subjected or exposed to the gasoline that defendant used to burn the truck.

        The record reflects that defendant intentionally ignited gasoline on a vehicle likely
containing gasoline that was right next to Whited and Katranis’s house, approximately 10 feet
from the area in which they and their two children were asleep. The ignition of the flames woke
Katranis, and Whited could see defendant from the light of the flames. Thus, the record
evidence supports the trial court’s conclusion that Katranis and Whited were “subjected or
exposed to[,]” MCL 777.31(1)(b), the flames from the gasoline that defendant used to commit
the arson. Other victims exposed to the flames from the attack were Katranis and Whited’s two
children and the firefighters that responded to extinguish the fire. Whited and Katranis were
further subjected to serious danger when they attempted to douse the flames before the fire
department arrived. In fact, Whited reported that he injured his hand as a result of attempting to
subdue the flames with a garden hose. Thus, we are satisfied that the trial court properly scored
OV 1 at 20 points. Because any objection to scoring OV 1 at 20 points would not be
meritorious, defendant’s trial counsel was not deficient in declining to object. Counsel is not
ineffective for declining to advance a futile objection. People v Fike, 228 Mich App 178, 182-
183; 577 NW2d 903 (1998).

        Finally, defendant argues that the trial court violated his Sixth Amendment rights when it
ordered restitution on the basis of facts that he did not admit and were not proved by a jury
beyond a reasonable doubt. In Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L
Ed 2d 435 (2000), the United States Supreme Court held that under the Sixth Amendment,
“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” In Alleyne v United States, 570 US ___, ___; 133 S Ct 2151, 2155; 186 L Ed 2d 314
(2013), the United States Supreme Court found that “any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury and found beyond a reasonable
doubt.” Id., citing Apprendi, 530 US at 483 n 10, 490. In Southern Union Co v United States,
567 US 343, 360; 132 S Ct 2344; 183 L Ed 2d 318 (2012), the United States Supreme Court
concluded that “the rule of Apprendi applies to the imposition of criminal fines[,]” and
recognized “that juries must determine facts that set a fine’s maximum amount . . . [.]”
Defendant argues that criminal fines are analogous to an order for restitution because they are
both a punishment.




                                                -5-
        However, this Court considered a similar argument in People v Corbin, 312 Mich App
352, 372; 880 NW2d 2 (2015), and concluded that a “criminal fine and restitution are not
synonymous[.]” This Court noted that a “plethora of federal circuit courts of appeal have held
that ‘judicial factfinding to determine the appropriate amount of restitution under a statute that
does not prescribe a maximum does not implicate a defendant’s Sixth Amendment rights.’” Id.
(citation omitted). This Court further noted that other jurisdictions have found that “restitution is
a civil rather than a criminal penalty,” while others “consider restitution a criminal penalty but
have nonetheless concluded that the Sixth Amendment erects no obstacle to judicial fact-finding
as to the amount owed[.]” Id. The Corbin Court quoted reasoning from United States v Leahy,
438 F3d 328, 338 (CA 3, 2006), stating that restitution is a criminal punishment, but as a
“restorative remedy that compensates victims for economic losses suffered as a result of a
defendant’s criminal conduct[,]” “it does not transform a defendant’s punishment into something
more severe than that authorized by pleading to, or being convicted of, the crime charged.”
Corbin, 312 Mich App at 372-373. Relying on the above precedent and reasoning, this Court
concluded: “[w]e are unaware of any state or federal courts that have adopted defendant’s
constitutional argument and find it unavailing.” Id. at 373. Subsequently, this Court in People v
Foster, 319 Mich App 365, 389; ___ NW2d ___ (2017), recognized that “because a restitution
order is not a penalty, the Sixth Amendment protections recognized in Apprendi do not apply.”
This Court reasoned that the remedial purpose of restitution is to reimburse the losses of crime
victims as a result of a defendant’s crime, as opposed to punishing criminal defendants. Id. This
Court is bound to follow Foster and Corbin. See MCR 7.215(J)(1). Thus, defendant’s
arguments concerning his order of restitution are unavailing.

       Affirmed.



                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Brock A. Swartzle




                                                -6-
