Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  July 6, 2018                                                                        Stephen J. Markman,
                                                                                                Chief Justice

  155239                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
                                                                                          Kurtis T. Wilder
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Elizabeth T. Clement,
            Plaintiff-Appellee,                                                                      Justices

  v                                                        SC: 155239
                                                           COA: 332946
                                                           Wayne CC: 10-002907-FC
  JONATHAN DAVID HEWITT-EL, a/k/a
  JONATHAN DAVID HEWITT,
           Defendant-Appellant.

  _________________________________________/

         On March 3, 2018, the Court heard oral argument on the application for leave to
  appeal the September 15, 2011 judgment of the Court of Appeals. By order of March 30,
  2018, the Court of Appeals opinion was vacated and the case was remanded to that court
  for reconsideration. On order of the Court, the Court of Appeals opinion on remand
  having been received, the application is again considered, and it is DENIED, because we
  are not persuaded that the question presented should be reviewed by this Court.

         BERNSTEIN, J. (dissenting).

         I respectfully dissent from the order denying leave to appeal. After hearing oral
  argument on the application for leave to appeal, we vacated the Court of Appeals opinion
  and remanded the case to the Court of Appeals for reconsideration. In particular, we
  directed the Court of Appeals to determine whether the defendant is entitled to relief
  under MCR 6.508(D).

          In this case, defendant raised substantive claims of ineffective assistance of
  counsel, arguing that his trial counsel had failed him in numerous ways. On remand, the
  Court of Appeals concluded that trial counsel’s performance had been defective only in
  his handling of an MRE 609 issue; this was in contrast to the trial court’s conclusion that
  trial counsel had also erred by failing to investigate or call potential alibi witnesses as
  well as potential medical experts. The Court of Appeals determined that the trial court
  had clearly erred by finding that trial counsel had erred in these additional respects. In so
  holding, the Court of Appeals credited trial counsel’s testimony at the evidentiary hearing
  and found that trial counsel’s strategy was reasonable.
                                                                                            2

       I write separately because it seems clear to me that the Court of Appeals is the one
that has committed legal error here, not the trial court. The Court of Appeals refers to
ample, well-grounded caselaw for the proposition that appellate courts should not
“ ‘second-guess [defense counsel’s] strategic decisions with the benefit of hindsight.’ ”
People v Hewitt-El (On Remand), unpublished per curiam opinion of the Court of
Appeals, issued May 8, 2018 (Docket No. 332946), p 7, quoting People v Dunigan, 299
Mich App 579, 590 (2013). However, in giving trial counsel deference, the Court of
Appeals completely fails to acknowledge the deference it owes to the trial court’s factual
findings.

       “Findings of fact by the trial court may not be set aside unless clearly erroneous.
In the application of this principle, regard shall be given to the special opportunity of the
trial court to judge the credibility of the witnesses who appeared before it.” MCR
2.613(C). As this Court has previously stated, “if resolution of a disputed factual
question turns on the credibility of witnesses or the weight of the evidence, we will defer
to the trial court, which had a superior opportunity to evaluate these matters.” People v
Sexton (After Remand), 461 Mich 746, 752 (2000). Moreover, in this case, the same
judge presided over both the trial and the post-conviction evidentiary hearing, and was
thus the only one who had the opportunity to assess the credibility of all of the relevant
witnesses.

       Curiously, despite the fact that the clear-error standard of review is as well settled
as the standard of review that applies to ineffective assistance of counsel claims, at no
point in its opinion does the Court of Appeals give the trial court’s factual findings the
deference they are due. Although lip service is paid to the notion that factual findings are
only clearly erroneous “if the reviewing court, upon review of the entire record, ‘is left
with a definite and firm conviction that a mistake has been made,’ ” Hewitt-El, unpub op
at 4, quoting People v McSwain, 259 Mich App 654, 682 (2003), the Court of Appeals
completely fails to engage in any analysis of how the trial court’s findings were clearly
erroneous.

       Despite noting that review of the entire record is warranted, the Court of Appeals
only focuses on trial counsel’s self-serving testimony, 1 neglecting the parts of his
testimony that were vague, inconsistent, and found not to be credible by the trial court.




1
   The trial court specifically noted: “While [trial counsel] believes he performed
strategically and without errors, this Court finds that his opinion of himself is inflated and
unreasonable and if not for the numerous aforementioned errors, there is a reasonable
probability that the proceeding would have been different.”
                                                                                                               3

Although caselaw instructs that factual findings are only clearly erroneous when an
appellate court is left with a definite and firm conviction that a mistake has been made,
the Court of Appeals does not begin to explain how the trial court’s credibility finding
was mistaken in the first place, much less how the Court of Appeals is possessed of the
definite and firm conviction thereof. The Court of Appeals opinion fails to even
acknowledge the trial court’s contrary credibility determination; instead of grappling with
the proper standard of review, the Court of Appeals effortlessly glides right over what it
leaves out, acting as if it is merely filling a space where nothing previously existed.

       That the Court of Appeals disagrees with the trial court’s credibility determination
seems clear; what is less clear is where in the law the Court of Appeals finds the authority
to substitute its own credibility determination for that of the trial court. Because I would
apply our well-settled caselaw and the plain and unambiguous language of our court rules
to the facts of this case, I would find that trial counsel’s performance was deficient in
multiple regards.

       Despite having previously noted that “[a]llowing the jury to learn that defendant
had previously been convicted of armed robbery five times substantially increased the
risk of unfair prejudice to defendant, particularly where defendant was presently charged
with armed robbery,” Hewitt-El, unpub op at 6-7, when addressing whether trial
counsel’s performance was prejudicial, the Court of Appeals merely notes that the
prosecution had a strong case. No mention is made of this substantial risk of unfair
prejudice. Here, the prior convictions that were admitted were identical to the one
defendant was being tried for, and were thus highly prejudicial. See People v Snyder,
301 Mich App 99, 106 (2013). Excluding these prior convictions would have materially
improved defendant’s odds of acquittal, especially where defendant was the sole witness
in his own defense, and his credibility was thus of utmost importance. I would find that
defendant has established a reasonable likelihood that, but for trial counsel’s deficiency,
he would have been acquitted. See MCR 6.508(D)(3)(b)(i).

       MCCORMACK, J., joins the statement of BERNSTEIN, J.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         July 6, 2018
       t0703
                                                                             Clerk
