            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    PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                      February 6, 2020
                Plaintiff-Appellee,

    v                                                                 No. 342071
                                                                      Marquette Circuit Court
    GARY LEE O’CONNELL,                                               LC No. 17-055529-FC

                Defendant-Appellant.


Before: STEPHENS, P.J., and SERVITTO and KRAUSE, JJ.

PER CURIAM.

        Defendant appeals by delayed leave granted1 the judgment entered following his guilty
plea to one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a). He was
sentenced to life in prison without the possibility of parole as required under MCL 750.520b(2)(c)2.
We affirm.

                                        I. BASIC FACTS

        This case arises from defendant’s sexual contact with a 10-year-old girl during the summer
of 2016. The victim disclosed that defendant touched her vagina and breasts, that she had touched
defendant’s penis with her hands and mouth, and that defendant rubbed his penis against her
vagina. At the time of this offense, defendant’s criminal history included a prior conviction of
CSC-I involving sexual intercourse with a 12-year-old female. During the course of the
investigation, defendant admitted the crimes to the investigating officer and wrote two letters to



1
 People v O’Connell, unpublished order of the Court of Appeals, entered April 13, 2018 (Docket
No. 342071).
2
  “For a violation that is committed by an individual 18 years of age or older against an individual
less than 13 years of age, by imprisonment for life without the possibility of parole if the person
was previously convicted of a violation of this section or section 520c, 520d, 520e, or 520g
committed against an individual less than 13 years of age . . . .”


                                                -1-
the victim and her parents expressing his remorse. Accordingly, defendant was charged, as a
second habitual offender, with three counts of CSC-I.

        In February 2017, defendant was arraigned by the district court, where he was advised of
the charges against him, the maximum penalties, and his right to an attorney. Defendant declined
the appointment of an attorney; however, the district court appointed an attorney to serve as his
legal advisor to provide defendant with guidance even if defendant maintained that he wished to
represent himself. In March 2017, defendant entered into a plea agreement where he agreed to
plead guilty to one count of CSC-I, second offense, in exchange for dismissal of all other charges
arising out of the same incident. At that time, his legal advisor confirmed that defendant was
making this decision after being advised of the consequences and without any concerns related to
competency, and the trial court once again confirmed that defendant wished to proceed without
counsel.

        While entering his plea, defendant asserted that he was “guilty with confusion,” and
clarified that he was confused about why he committed the crime. However, he confirmed that he
had committed the charged crime and that he was not confused about his desire to plead guilty.
Defendant agreed that he understood that the minimum sentence was life in prison without the
possibility of parole, and expressed that he wanted to be “locked up.” Defendant explained to his
legal advisor that this was the only way to keep him from re-offending.

       Nonetheless, at his first sentencing hearing, defendant appeared to express some doubt
about whether he should proceed without counsel, and the circuit court appointed defendant’s legal
advisor as his counsel going forward. However, when defendant returned before the circuit court
for sentencing, counsel confirmed that defendant still wished to proceed with sentencing, and
defendant reaffirmed his guilty plea. Defendant then made the following statement:

       Well, um, I just want to let the victims know that I’m sorry. And, you know, it’s
       —it’s kind of hard for me to discuss what’s going through my mind and the way I
       feel. And I tried to seek help before I did this, but the mental health service and the
       psychiatrist and the counselors that I was trying to talk to said I wasn’t—I didn’t
       meet the criteria or the quota, whatever. And I’ve been diagnosed with depression,
       posttraumatic stress disorder, anxiety, learning disability. You name it, I have it. I
       know that what I did was wrong, but at the time I was looking for love, and I found
       it for five minutes. After that, I beat the shit out of myself, mentally. And I feel
       that this sentencing will give me peace of mind, not only from myself to hurt
       somebody else, but from society.

Thereafter, the circuit court sentenced defendant to the mandatory sentence of life in prison.

        Several months later, defendant filed an application for delayed leave to appeal with this
Court. Once granted, defendant filed a motion for withdrawal of his plea and a request for an
evidentiary hearing in the trial court to address whether appointed trial counsel was ineffective for
failing to seek a competency evaluation and a withdrawal of defendant’s plea. The trial court




                                                -2-
granted the request for an evidentiary hearing and a Ginther3 hearing was held in October 2018.
The circuit court denied defendant’s motion to withdraw his guilty plea and concluded that trial
counsel did not have a basis for filing a motion for a competency hearing or a motion to withdraw
the plea.

                             II. WAIVER OF RIGHT TO COUNSEL

        Defendant argues that the circuit court erred when it accepted defendant’s waiver of
counsel because his decision to waive counsel was not voluntary or understanding. Defendant
posits that although defendant’s mental illness was not readily apparent at the time of his waiver
of counsel, it was clear during defendant’s plea that defendant was not making rational decisions
and the circuit court should not have allowed defendant to proceed without counsel. We disagree.

       When assessing the validity of a defendant’s waiver of the right to counsel, this Court
reviews de novo the entire record to determine whether the circuit court’s factual findings
regarding the waiver were clearly erroneous. People v Williams, 470 Mich 634, 640; 683 NW2d
597 (2004). 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.
People v Lee, 314 Mich App 266, 272; 886 NW2d 185 (2016).

       Defendants in criminal cases are guaranteed the right to have the assistance of counsel. See
Const 1963, art 1, § 20. This includes the right to have counsel appointed at public expense for
indigent defendants. See People v Russell, 471 Mich 182, 187-188; 684 NW2d 745 (2004).
Further, criminal defendants also have the right to self-representation. See Const 1963, art 1, § 13;
Russell, 471 Mich at 190-192. In Russell, our Supreme Court clarified that in order to allow a
defendant’s request for self-representation,

         a court must determine that (1) the defendant’s request is unequivocal, (2) the
         defendant is asserting his right knowingly, intelligently, and voluntarily through a
         colloquy advising the defendant of the dangers and disadvantages of self-
         representation, and (3) the defendant’s self-representation will not disrupt, unduly
         inconvenience, and burden the court and the administration of the court’s business.

                In addition, a circuit court must satisfy the requirements of MCR 6.005(D),
         which provides in pertinent part as follows:

                       The court may not permit the defendant to make an initial
                waiver of the right to be represented by a lawyer without first

                       (1) advising the defendant of the charge, the maximum
                possible prison sentence for the offense, any mandatory minimum
                sentence required by law, and the risk involved in self-
                representation, and



3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                                 -3-
                       (2) offering the defendant the opportunity to consult with a
               retained lawyer or, if the defendant is indigent, the opportunity to
               consult with an appointed lawyer. [Id. at 190-191.]

Further, our Supreme Court has recognized that a defendant has the free choice to refuse the
services of appointed counsel and represent himself so long as the waiver is knowing and
intelligent, and the defendant “knows what he is doing and his choice is made with eyes open.”
Williams, 470 Mich at 641-642 (quotation marks and citation omitted).

         Aside from claiming that he was incompetent at the time of his waiver, defendant does not
present any facts to support a conclusion that his waiver of counsel was not intelligent, knowing,
and voluntary, and we find no evidence in the record to support such a claim. Rather, both the
district court and circuit court carefully imparted the information encompassed by MCR 6.005(D)
by informing defendant of the charges against him and the maximum penalties, and, despite
defendant’s position that he did not want an attorney, the district court appointed counsel to serve
as a legal advisor to defendant and consult with defendant about the charges. Defendant expressly
acknowledged his right to counsel and continued to decline representation at both his arraignments
despite being reminded of his right to counsel and the mandatory penalty of life in prison without
the possibility of parole. Defendant verified that he could read and write and had received his
GED. Further, defendant’s legal advisor confirmed that defendant’s decisions were made “after
being fully advised of the consequences.”

        Accordingly, the record supports a conclusion that the court went to great lengths to ensure
that defendant’s waiver of counsel was knowingly, intelligently, and voluntarily made. Further,
as defendant concedes, there was no evidence of incompetence during defendant’s waiver of
counsel. In sum, defendant had the free choice to refuse the services of appointed counsel, and the
circuit court did not err in accepting defendant’s waiver of counsel.

                                         II. GUILTY PLEA

        Defendant argues that because he was incompetent to stand trial, he was also incompetent
to enter a plea and as a result, the trial court should have allowed him to withdraw his guilty plea.
Further, defendant argues that the circuit court erred in accepting his plea because it was not
understanding, accurate, and voluntary. We disagree.

         When a motion to withdraw a guilty plea is made after sentencing, the decision whether to
grant it rests within the sound discretion of the circuit court, and it will not be disturbed on appeal
unless there is a clear abuse of discretion resulting in a miscarriage of justice. People v Effinger,
212 Mich App 67, 69; 536 NW2d 809 (1995). Further, the determination of a defendant’s
competence is within the circuit court’s discretion, and will only be reversed where there is an
abuse of discretion. People v Kammeraad, 307 Mich App 98, 138; 858 NW2d 490 (2014). An
abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and
principled outcomes. Id. at 140.

       An incompetent defendant “shall not be proceeded against while he is incompetent.” MCL
330.2022(1). “[A] defendant is presumed competent to stand trial unless his mental condition
prevents him from understanding the nature and object of the proceedings against him or the court

                                                 -4-
determines he is unable to assist in his defense.” People v Mette, 243 Mich App 318, 331; 621
NW2d 713 (2000), citing MCL 330.2020. Either the court or any party may raise the issue of a
defendant’s competence to stand trial. MCL 330.2024. Further, the determination of a defendant’s
competence is within the lower court’s discretion. Kammeraad, 307 Mich App at 138. The trial
court has an obligation to raise the issue of incompetence where facts raise a “bona fide doubt” as
to the defendant’s competence. Id. “The test for such a bona fide doubt is whether a reasonable
judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being
reviewed, should have experienced doubt with respect to competency to stand trial.” Id. at 138-
139 (citation and quotation marks omitted). We are aware that a significant portion of this state’s
prison population suffers from some form of mental illness. Often the mental illness was either
undiagnosed or untreated prior to commitment to the Department of Corrections. Defendant’s
irrational behavior, demeanor, and prior medical record are relevant to the inquiry as to the
defendant’s competency. Id. at 139. “However, the decision as to the existence of a ‘bona fide
doubt’ will only be reversed where there is an abuse of discretion.” Id. at 138 (citation omitted).

       Defendant argues that the circuit court should have raised the issue of competency when
defendant accepted an unfavorable plea. However, during defendant’s exchange with the circuit
court, defendant assured the circuit court that he understood the nature of the charges and,
understood the penalty for entering a guilty plea. Defendant’s understanding of the nature of his
crimes was further buttressed by the letters that he wrote to the victim and her parents. We
appreciate the argument that assisting counsel’s understanding of when a competency hearing
should be requested was simplistic and revealed little understanding of the complicated issue of
mental illness. Like the general public, most members of the bench and bar have a very limited
understanding of the myriad issues surrounding mental illness. A more robust education regarding
mental illness would benefit us all.

        Defendant’s claim of incompetence is based on statements that he was diagnosed with
depression, anxiety, and post-traumatic stress disorder, prior to entry of his plea. No
documentation was ever provided to the court or counsel to substantiate those claims. Moreover,
even if documentation had been provided, a history of mental illness is not alone sufficient to
establish incompetency, but rather there must be some indicia of a need for a competency hearing.
See Mette, 243 Mich App at 331-332. In this case, defendant’s behavior did not raise a bona fide
doubt that he was incompetent at the time he entered his plea. He did not exhibit any inappropriate
physical behavior. He gave responsive answers to the court’s extensive questioning. Further, the
record does not contain evidence that he could not or did not communicate with his counsel.

        On the basis of the facts in the record, the circuit court’s conclusion that defendant was
capable of understanding the nature of the charges brought against him and capable of rationally
assisting in his defense did not fall outside the range of reasonable and principled outcomes. A
reasonable judge, situated as the circuit court judge here, could logically have rejected the
proposition that defendant was “incapable because of his mental condition of understanding the
nature and object of the proceedings against him or of assisting in his defense in a rational manner.”
MCL 330.2020(1). The range of reasonable and principled decisions included a finding that
defendant intentionally and purposefully entered a guilty plea to avoid circumstances in which he
might re-offend, and not because of a mental condition or illness. The circuit court was able to
personally observe defendant’s behavior and conduct, hear defendant’s remarks in person,
including the tone and inflections in his voice, and directly assess defendant’s demeanor, attitude,

                                                 -5-
and comments. This Court generally defers to the trial court’s findings on such matters. See MCR
2.613(C) (“regard shall be given to the special opportunity of the trial court to judge the credibility
of the witnesses who appeared before it”).

        Further, as noted above, the record reflected that defendant could read and write and had
obtained his GED while in prison. This information further suggests that defendant had the
capacity to understand the nature of the charges and to rationally assist in his defense. MCL
330.2020(1). However, despite this capacity and ability, defendant chose not to proceed with trial.
To the extent that defendant made occasional statements about confusion and his mental state, this
Court defers to the circuit court’s determination following its personal observation of defendant
and conclusion that defendant was confused about why he continued to commit offenses against
children. In short, defendant has failed to overcome the presumption that he was competent to
stand trial, and the circuit court did not err by not ordering a competency examination or by
accepting defendant’s guilty plea.

       Defendant also argues that the circuit court erred in accepting his plea because it was not
understanding, accurate, and voluntary. Again, we disagree.

        Indeed, a court may not accept a plea of guilty unless it “is understanding, voluntary, and
accurate.” MCR 6.302(A). For a plea to be understanding, the defendant must be informed of the
maximum possible prison sentence, as well as any mandatory minimum sentence required by law.
MCR 6.302(B)(2); People v Brown, 492 Mich 684, 689; 822 NW2d 208 (2012). For a plea to be
voluntary, the terms of the plea agreement must be disclosed, and the plea must be the “defendant’s
own choice.” MCR 6.302(C)(4)(c). For a plea to be accurate, the court must establish support for
a finding that defendant is guilty of the offense to which defendant is pleading. MCR 6.302(D)(1).

         As stated above, defendant has provided no evidence that he was incompetent at the time
he entered his plea. Again, the court made numerous statements about the mandatory penalty of
life in prison without parole, and defendant stated that he understood the consequences of his guilty
plea and was aware of the mandatory life sentence he would receive as a result. A defendant is
not permitted to claim that he or she was confused about the consequences of a plea after stating
on the record that he or she understood the same. People v Everard, 225 Mich App 455, 460-461;
571 NW2d 536 (1997). Further, defendant also confirmed that it was his choice to enter the plea
and that the plea was not the result of any promises, inducements, or threats. Furthermore,
defendant admitted that he committed the crime to which he was pleading. Accordingly, because
defendant’s plea was voluntary, understanding, and accurate, the circuit court did not err in
accepting defendant’s plea.

       In sum, defendant’s argument that he was incompetent at the time he entered his plea fails
because the record contains numerous statements showing that defendant entered the guilty plea
understandingly and voluntarily, and defendant has failed to provide any evidence to the contrary.

                        III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Lastly, defendant posits that trial counsel was ineffective by failing to request a
competency evaluation and failing to request withdrawal of defendant’s guilty plea once he was
appointed. We disagree.

                                                 -6-
        Generally, the determination of whether a defendant has been deprived of the effective
assistance of counsel presents a mixed question of fact and constitutional law. See People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). When the circuit court has held a Ginther
hearing, the circuit 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
LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Thereafter, this Court reviews the circuit
court’s factual findings for clear error, while its constitutional determinations are reviewed de
novo. Trakhtenberg, 493 Mich at 47. Regard should be given to the circuit court’s opportunity to
assess the credibility of the witnesses who appeared before it. MCR 2.613(C). 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. Lee, 314 Mich App at 272.

        A defendant has the right to the effective assistance of counsel. US Const, Ams VI and
XIV; Const 1963, art 1, § 20; People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012).
Generally, to establish ineffective assistance of counsel, a defendant must show (1) that counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms; (2) that there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different; and (3) that the resultant proceedings were fundamentally
unfair or unreliable. People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland v Washington, 466 US 668, 684; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “Effective
assistance of counsel is presumed, and a defendant bears a heavy burden of proving otherwise.”
People v Mack, 265 Mich App 122, 129; 695 NW2d 342 (2005). When ineffective assistance of
counsel is claimed in the context of a plea, the pertinent inquiry is whether the defendant tendered
the plea voluntarily and understandingly. People v Armisted, 295 Mich App 32, 48; 811 NW2d
47 (2011).

        Defendant first argues that trial counsel was ineffective for failing to request a competency
evaluation. However, as discussed above, defendant has failed to establish that he should have
been given a competency evaluation. Accordingly, on the basis of the record and the findings
above, we cannot conclude that defense counsel’s failure to request a competency examination
constituted deficient performance, namely, that counsel’s performance fell below an objective
standard of reasonableness. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010) (recognizing that defense counsel does not have an obligation to advance a meritless
argument).

        Further, defendant argues that trial counsel was ineffective by failing to request withdrawal
of defendant’s guilty plea once he was appointed. However, there is no absolute right for a
defendant to withdraw a guilty plea after it has been accepted. People v Harris, 224 Mich App
130, 131; 568 NW2d 149 (1997). Additionally, the record suggests that defendant himself would
have opposed such a motion given his desire to reaffirm his plea instead. Accordingly, the result
of the proceedings would not have been different. Moreover, as noted above, defendant explained
his motivation for pleading guilty to trial counsel, and defendant’s plea was voluntary and
understanding. Therefore, in whole, defendant has not established ineffective assistance of
counsel.



                                                 -7-
Affirmed.



                  /s/ Cynthia Diane Stephens
                  /s/ Deborah A. Servitto
                  /s/ Amy Ronayne Krause




            -8-
