                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    May 23, 2017
               Plaintiff-Appellee,

v                                                                   No. 330580
                                                                    Wayne Circuit Court
JOHNNY EARL MARION,                                                 LC No. 15-006014-01-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right his bench trial convictions of possession of a firearm during
the commission of a felony (“felony-firearm”), second offense, MCL 750.227b, felon in
possession of a firearm (“felon-in-possession”), MCL 750.224f, felonious assault, MCL 750.82,
and assault and battery, MCL 750.81. The trial court sentenced defendant, as a fourth habitual
offender, MCL 769.12, to five years’ imprisonment for his felony-firearm conviction, 1 to 15
years’ imprisonment for his felon-in-possession conviction, 1 to 15 years’ imprisonment for his
felonious assault conviction, and 93 days in jail for his assault and battery conviction. We
affirm.

               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        This case arises from the assault of Candace Walker on July 4, 2015. Walker was at the
home of defendant’s sister that evening, and an argument erupted between her and defendant.
After the argument escalated, Walker went inside a bathroom, anticipating that her absence
would defuse the situation and decrease defendant’s hostility toward her. However, when she
came out, defendant was blocking the doorway and “trying to intimidate [her] . . . .” Walker
pushed defendant in the chest, and defendant slapped her face. Walker then grabbed her keys
and left the house. Defendant followed her as she walked toward her car and entered the vehicle.
When defendant was about two steps away from the car’s door handle, Walker pepper-sprayed
him through the passenger-side window. After that, she saw defendant insert his hand into his
pocket and then hold up an object. She heard “a loud pop,” testifying at trial that there was “a
shot in the air.” Walker drove away from the house and called 911. Eventually, defendant was
arrested by police.




                                                -1-
       At trial, defendant acknowledged the altercation between himself and Walker, but denied
taking a weapon out of his pocket and shooting it in the air. Additionally, he testified that
fireworks were going off in the neighborhood before and after his altercation with Walker.

       During defendant’s arraignment, the trial court asked him if he understood that he would
be subject to “a mandatory five year penalty” if he were found guilty of felony-firearm, second
offense. Defendant responded, “Yes, ma’am.” Near the end of the hearing, the trial court
provided an overview of the process for submitting a letter to the Wayne County Gun Board
(“Gun Board”) in light of the fact that this case involved a gun. The trial court informed
defendant that submitting a letter to the Gun Board would result in a determination of whether
his gun-related charges could be “altered[] or reduced in any way,” or whether a plea agreement
could be “offered with regard to the gun charge.” The trial court also asked whether the
prosecution had offered a plea agreement to defendant. The prosecutor responded that if
defendant pleaded guilty to felony-firearm, second offense, and felonious assault, the prosecution
would dismiss the remaining charges as well as the habitual offender notice. Defense counsel
confirmed that defendant was not interested in accepting the prosecution’s offered plea
agreement at that time.

       During a final conference held before trial, the court asked the prosecution once again if a
plea agreement had been offered to defendant. The prosecutor answered affirmatively and
explained that defense counsel had written a letter to the Gun Board requesting relief for
defendant. The prosecutor then stated the terms of a revised plea agreement: if defendant
pleaded guilty to felonious assault and felon-in-possession, the prosecution would (1) dismiss the
remaining charges of felony-firearm and assault and battery and (2) request a “sentence
agreement of [3] to 15 years[’] ” imprisonment. The trial court asked defense counsel if that was
the offer defendant had received from the Gun Board. Defense counsel confirmed that the
prosecution’s statement of the offer was correct, and that he had conveyed the offer to defendant.
Defense counsel then stated that he believed that defendant had rejected the offer and asked
defendant if that was correct. Defendant replied, “Yes.” The trial court then asked defendant,
“You do not wish to accept that offer; is that correct, sir?” Defendant again replied, “Yes,
ma’am.”

         After a bench trial, the trial court found defendant guilty on all counts. During
sentencing, defense counsel noted that defendant was first convicted of felony-firearm when he
was 16 years old and was sentenced as a juvenile even though he was charged as an adult.
Accordingly, defense counsel contended that defendant should not have been charged with
felony-firearm, second offense. The trial court ruled that it would sentence defendant for felony-
firearm, second offense, because the language of the applicable statute, MCL 750.227b, required
the trial court to render an enhanced sentence for a defendant “[u]pon a second conviction under
[the] subsection . . . .”

       After filing a claim of appeal in this Court, defendant filed a motion to remand this case
for a Ginther1 hearing on his ineffective assistance of counsel claim. We granted defendant’s


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


                                                -2-
motion to remand.2 Following the posttrial evidentiary hearing, the trial court found that
defendant had not been denied the effective assistance of counsel.

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

        On appeal, defendant argues that he was denied the effective assistance of counsel
because (1) defense counsel failed to investigate defendant’s juvenile felony-firearm conviction,
and (2) defense counsel erroneously informed defendant before trial that he would not be
sentenced to a mandatory term of five years’ imprisonment if he were convicted of felony-
firearm, second offense. Defendant contends that he was prejudiced by defense counsel’s errors,
as they resulted in him rejecting the prosecution’s offered plea agreement, and he claims that we
should order the prosecution to reinstate the offered plea agreement. We disagree.

                                  A. STANDARD OF REVIEW

        Ineffective assistance of counsel claims are mixed questions of law and fact. People v
Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). “A judge must first find the facts, then must
decide whether those facts establish a violation of the defendant’s constitutional right to the
effective assistance of counsel.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676
(2011) (quotation marks and citation omitted). We review the trial court’s findings of fact for
clear error and review questions of constitutional law de novo. People v Trakhtenberg, 493 Mich
38, 47; 826 NW2d 136 (2012). “Clear error exists if the reviewing court is left with a definite
and firm conviction that the trial court made a mistake.” Armstrong, 490 Mich at 289.

                                          B. ANALYSIS

        “As at trial, a defendant is entitled to the effective assistance of counsel in the plea-
bargaining process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014), citing
Lafler v Cooper, 566 US 156, 162; 132 S Ct 1376; 182 L Ed 2d 398 (2012).

         “A defendant seeking relief for ineffective assistance in this context must meet
         Strickland’s[3] familiar two-pronged standard by showing (1) ‘that counsel’s
         representation fell below an objective standard of reasonableness,’ and (2) ‘that
         there is a reasonable probability that, but for counsel’s unprofessional errors, the
         result of the proceeding would have been different.’ ” [Douglas, 496 Mich at
         592, quoting Lafler, 566 US at 163.]

When a defendant contends that trial counsel’s ineffectiveness resulted in prejudice because the
defendant rejected a plea offer and stood trial,




2
  People v Marion, unpublished order of the Court of Appeals, entered September 1, 2016
(Docket No. 330580).
3
    Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984).


                                                 -3-
       a defendant must show that but for the ineffective advice of counsel there is a
       reasonable probability that the plea offer would have been presented to the court
       (i.e., that the defendant would have accepted the plea and the prosecution would
       not have withdrawn it in light of intervening circumstances), that the court would
       have accepted its terms, and that the conviction or sentence, or both, under the
       offer’s terms would have been less severe than under the judgment and sentence
       that in fact were imposed. [Douglas, 496 Mich at 592, quoting Lafler, 566 US at
       164 (quotation marks omitted).]

        “The defendant has the burden of establishing the factual predicate of his ineffective
assistance claim.” Douglas, 496 Mich at 592. “ ‘[R]egard shall be given to the special
opportunity of the trial court to judge the credibility of the witnesses who appeared before it.’ ”
People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008), amended on other grounds 481
Mich 1201 (2008), quoting MCR 2.613(C) (alteration in original).

         During the Ginther hearing, defendant testified that he had rejected the prosecution’s
offered plea agreement of 3 to 15 years’ imprisonment because defense counsel indicated that
defendant could not receive a mandatory term of five years’ imprisonment if he were convicted
of felony-firearm, second offense, because his first felony-firearm conviction resulted in a
juvenile sentence and not incarceration. Defendant stated that he discussed the prospect of a
five-year mandatory sentence with defense counsel at least two or three times. Based on their
conversations, he rejected the prosecution’s offer because the prosecution “was offering me the
same thing that [defense counsel] was telling me that I can only get anyway.” However, later in
his testimony, defendant stated that defense counsel never told him that the five-year mandatory
sentence does not apply to him. Defendant also acknowledged that he did not mention the
advice that he had received from defense counsel in the letter that he wrote to the trial court prior
to sentencing, in which he asked the court not to apply the mandatory five-year sentence to him.
He explained that he “really didn’t even think about it at the time when [he] was writing the
letter.”

         On the other hand, defense counsel repeatedly testified during the Ginther hearing that he
first learned on the day of defendant’s sentencing that defendant was a juvenile when he was
initially convicted of felony-firearm. As a result, defense counsel argued at sentencing that
defendant may not be eligible for an enhanced five-year sentence for his felony-firearm, second
offense, conviction. Defense counsel testified that it was clear to him before trial that defendant
would serve a mandatory five-year sentence if he were convicted of felony-firearm and that he
expressly informed defendant of that fact. Defense counsel also stated that defendant only
expressed doubt or confusion about whether he was eligible for the mandatory five-year sentence
on the day of his sentencing, and counsel confirmed that defendant never asked him any
questions regarding whether he was eligible for the enhancement before that point in the
proceedings.

       Ultimately, the trial court found that defendant was not denied the effective assistance of
counsel because defense counsel’s performance was not unreasonable. The court credited
defense counsel’s testimony and found incredible defendant’s testimony that he discussed this
issue with defense counsel early in the case. Likewise, the court found credible defense
counsel’s testimony that this issue did not come up until defendant’s sentencing. The court

                                                -4-
reasoned, “If this was an issue at the time that the letter was going to the Gun Board, then
[defense counsel] would have raised that in his Gun Board letter.” The court also stated, “I think
if it was an issue . . . at the [arraignment on the information], . . . defense counsel would have
been saying, well, this was an issue, you know, [j]udge, we’re not sure this felony firearm –
second applies.” In addition, the trial court noted that defendant did not state in his letter to the
court that defense counsel told him that he only could receive a sentence of two years’
imprisonment for his felony-firearm conviction. In sum, the trial court found that defense
counsel’s advice was not objectively unreasonable, explaining, “I don’t believe that [defense
counsel] had notice or knowledge of this at the time that [defendant] was deciding to reject the
plea offer and go forward.”

        The trial court’s factual findings are not clearly erroneous, especially given its credibility
determinations, and its findings plainly support its conclusion that defense counsel’s plea-related
advice did not fall below an objective standard of reasonableness. See Douglas, 496 Mich at
592; Trakhtenberg, 493 Mich at 47 Again, we must give regard “ ‘to the special opportunity of
the trial court to judge the credibility of the witnesses who appeared before it.’ ” Dendel, 481
Mich at 130, quoting MCR 2.613(C). Crediting defense counsel’s testimony, it is clear that
defense counsel informed defendant during the pretrial stage of the proceedings that he would
face a mandatory five-year sentence if he were convicted of felony-firearm.4

        Nevertheless, even if we assume, arguendo, that defense counsel’s performance fell
below an objective standard of reasonableness, defendant failed to demonstrate the requisite
prejudice. See Douglas, 496 Mich at 592. Again, in order to show that he was prejudiced by
defense counsel’s ineffective assistance concerning the plea offer, defendant must show a
reasonable probability that he “would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances . . . .” Id., quoting Lafler, 566 US at 164
(quotation marks omitted).

       Most significantly, defendant continuously claimed that he was innocent throughout the
pendency of this case. During the Ginther hearing, defendant repeatedly asserted that he was
innocent, confirming that he did not have a gun on the night of the incident, stating that he
“[does]n’t mess with guns anyway,” and confirming his earlier belief that he was falsely accused.



4
  As previously mentioned, defendant contends on appeal that defense counsel was ineffective
for failing to investigate his prior juvenile conviction of felony-firearm, as such an investigation
could have cured defendant’s misperception that he only faced a mandatory term of two years’
imprisonment upon conviction of felony-firearm. Defense counsel acknowledged at the Ginther
hearing that he performed no investigation into defendant’s prior felony-firearm conviction,
assuming that it was an adult conviction based “on the CCH.” Nevertheless, for the reasons
previously discussed, there is no indication that further investigation would have altered
defendant’s understanding of the prison time that he would face following a felony-firearm
conviction given the trial court’s crediting of defense counsel’s unequivocal testimony that he
informed defendant that he would serve a mandatory five-year sentence if he were convicted of
felony-firearm.


                                                 -5-
Notably, defendant replied, “Yeah, I went to trial because I felt I wasn’t guilty, yes,” after the
trial court said the following: “In this letter, you state: ‘When I’m guilty, plead the case and
when I try to fight for my freedom.’ So does that mean that - - I mean, take that to mean you
went trial because you felt you weren’t guilty.” Defendant similarly asserted his innocence
during trial, testifying that he asked the police to “swab” his hands after the alleged shooting
because he was “being falsely accused of something.” Defendant’s recurring assertions of
innocence are consistent with defense counsel’s testimony that defendant “categorically
reject[ed]” the prosecution’s offered plea agreement before trial.

        Furthermore, defendant testified equivocally at the Ginther hearing when asked whether
he would have accepted the prosecution’s plea offer if defense counsel had provided accurate
advice regarding the mandatory five-year sentence, and he provided alternative reasons for
rejecting the plea agreement, some of which were consistent with defense counsel’s testimony.
According to defense counsel, defendant “wanted to go to trial, and I agreed with him.” Defense
counsel explained that defendant had a reasonable chance of acquittal given the fact that the
prosecution had no physical evidence against defendant, and the trial court judge was “a very fair
judge.” Similarly, defendant testified that he and defense counsel “both [were] feeling that
[defendant] can win at trial . . . .” But defendant also provided contrary testimony, stating that
“[n]ine times out ten, I probably would have took the [plea],” but he decided not to accept the
plea offer because defense counsel told him that “actually it wasn’t a deal” based on the potential
sentences that he faced upon conviction. Additionally, he testified that he would have taken the
plea offer with accurate information, even though he believed that he was innocent of the charges
and did not have a gun on the night of the incident, because he “wouldn’t have gambled on it.”
Defendant acknowledged that he would have lied to the trial court so he could enter a guilty plea
in order to “get the time[.]”5 Considered as a whole, this testimony raises significant doubt that
defendant rejected the plea solely based on defense counsel’s purported advice regarding the
mandatory sentence that defendant could face for a felony-firearm conviction.

         Further, while defendant testified that defense counsel never told him that he could
receive a five-year sentence for a felony-firearm conviction, he expressly acknowledged that
“[t]he judge said it” during his arraignment. He also confirmed at the Ginther hearing that he
understood the trial court’s statements about a possible five-year sentence for a felony-firearm
conviction, but disregarded those statements because he believed that the paperwork on which
the trial court was relying was incorrect. While defendant testified at the Ginther hearing that he
still “had questions” during his arraignment, he failed to raise those questions at that time,
reasoning that his questions were not for the court.

        In light of this evidence, even if we assume, arguendo, that defense counsel’s advice was
deficient, defendant has failed to establish that he was prejudiced by defense counsel’s
performance. Defendant’s ambivalent testimony does not provide a basis for concluding that



5
 Interestingly, defendant testified that he told defense counsel that he did not have a gun on him
during the incident, yet, according to defendant, defense counsel never mentioned the possibility
of entering a no contest plea rather than a guilty plea.


                                                -6-
there is a reasonable probability that he would have accepted the plea offer if defense counsel
had informed him that he was subject to a mandatory five-year sentence if he was convicted of
felony-firearm at trial. See Douglas, 496 Mich at 592; see also id. at 595-599 (concluding that
the trial court properly found that the defendant failed to establish the requisite prejudice to
support an ineffective assistance of counsel claim when he (1) provided confusing testimony at
the Ginther hearing regarding the circumstances, if any, under which he would have accepted the
prosecution’s plea offer and (2) maintained that he was innocent throughout the proceedings).

                                       III. CONCLUSION

        Defendant is not entitled to reinstatement of the prosecution’s plea offer, as he has failed
to establish that he received ineffective assistance of counsel.

       Affirmed.

                                                             /s/ Michael J. Riordan
                                                             /s/ Amy Ronayne Krause
                                                             /s/ Brock A. Swartzle




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