                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 16, 2015
               Plaintiff-Appellee,

v                                                                  No. 321193
                                                                   Wayne Circuit Court
KEITH JAMAR MOSSON,                                                LC No. 13-004021-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of unarmed robbery, MCL
750.530, assault with intent to commit unarmed robbery, MCL 750.88, unlawful imprisonment,
MCL 750.349b, and first-degree home invasion, MCL 750.110a(2). Defendant was sentenced to
8 to 15 years’ imprisonment for the unarmed robbery, assault with intent to commit unarmed
robbery, and unlawful imprisonment convictions, and 8 to 20 years’ imprisonment for the first-
degree home invasion conviction. We affirm.

        This case arises from the robbery and assault of Joseph Conder and Nicholas Hasson in
Detroit. Defendant and codefendant, Terrance Lomonte Verge, initially assaulted Conder and
Hasson outside a liquor store. Then, after Hasson managed to escape back inside the store,
defendant and Verge robbed Conder, forced him into a car, and drove him to an automated teller
machine to get more money for them. When Conder was unable to withdraw the funds,
defendant and Verge drove him back to the apartment he shared with Hasson. Defendant forced
his way into the apartment, assaulting Conder inside. Hasson and Conder were able to elude
defendant and flee out of the apartment’s rear entrance.

                       I. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant contends that defense counsel’s failure to review the liquor store’s
surveillance video with him, investigate the apartment’s second-story door handle for
fingerprints, clarify on the record that defendant did not have a prior conviction involving theft
or dishonesty, and provide sound advice regarding whether defendant should testify all fell
below an objective standard of reasonableness and that defendant was thereby prejudiced. We
disagree.



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         To preserve a claim of ineffective assistance of trial counsel for appellate review, a
defendant must move for a new trial or for a Ginther1 hearing. People v Lopez, 305 Mich App
686, 693; 854 NW2d 205 (2014). Defendant did not move for a new trial or a Ginther hearing in
the trial court. Therefore, this issue is unpreserved for appellate review. See id.

        “A claim of ineffective assistance of counsel presents a mixed question of law and fact.”
People v Brown, 294 Mich App 377, 387; 811 NW2d 531 (2011). “This Court reviews a trial
court’s findings of fact, if any, for clear error, and reviews de novo the ultimate constitutional
issue arising from an ineffective assistance of counsel claim.” Id. A finding is clearly erroneous
if “ ‘the reviewing court is left with a definite and firm conviction that a mistake has been
made.’ ” Lopez, 305 Mich App at 693 (citation omitted). This Court reviews an unpreserved
claim of ineffective assistance of counsel for errors apparent on the record. Id.

        “To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1)
that his attorney’s performance was objectively unreasonable in light of prevailing professional
norms; and (2) that he was prejudiced by the deficient performance.” People v Walker, 497
Mich 894, 895; 855 NW2d 744 (2014). To show prejudice, a defendant “must demonstrate a
reasonable probability that but for counsel’s errors, the result of the proceedings would have
been different.” People v Gaines, 306 Mich App 289, 300; 856 NW2d 222 (2014) (citation and
quotation marks omitted). A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed
2d 674 (1984).

        “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Eisen, 296 Mich App 326, 329; 820 NW2d 229 (2012) (citation
and quotation marks omitted). More specifically, there is a strong presumption that defense
counsel employed effective trial strategy, People v Payne, 285 Mich App 181, 190; 774 NW2d
714 (2009) (citation omitted), and this Court “will not substitute our judgment for that of counsel
on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s
competence,” People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008). “A
particular strategy does not constitute ineffective assistance of counsel simply because it does not
work.” People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004).

                                  A. SURVEILLANCE VIDEO

        “Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses.” People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). A substantial
defense is one that could have made a difference in the trial’s outcome. Id. “Failure to make a
reasonable investigation can constitute ineffective assistance of counsel.” People v McGhee, 268
Mich App 600, 626; 709 NW2d 595 (2005). Provided that defense counsel makes a complete
investigation, however, the decision regarding what evidence to present is a matter of trial
strategy. Wiggins v Smith, 539 US 510, 521-522; 123 S Ct 2527; 156 L Ed 2d 471 (2003).



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


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       In this case, it is not apparent from the record that defense counsel failed to make a
reasonable investigation of the surveillance video from the liquor store. See Lopez, 305 Mich
App at 693. The video was a bone of contention between defense counsel and the prosecution
long before defendant’s trial. Defense counsel first informed the trial court that the prosecution
had not provided the video during a final conference on October 1, 2013. On October 18, 2013,
in another final conference, defense counsel complained that the prosecution still had not
produced the video and told the trial court that he believed it was exculpatory. The judge
ordered the prosecutor to make the video available to defense counsel that day. Defense counsel
moved for an adjournment so that he could watch the video and have sufficient time to prepare
his defense. The trial court denied the motion but promised to hear any potential defense
motions regarding the video on the day of the trial. At the close of the conference, the judge told
defense counsel, “Well, you’re getting the video today. And if you see anything on the video
that warrants a motion, bring it before the [c]ourt.” More than three months elapsed between that
conference and a February 3, 2014 pretrial hearing on defendant’s motion to dismiss on the
ground of Conder’s and Hasson’s allegedly perjured testimony at the preliminary examination.
Defense counsel said nothing at the motion hearing to suggest that the prosecution had failed to
provide the video. In support of defendant’s motion, defense counsel pointed out instances in
which Conder’s and Hasson’s testimony had been inconsistent, and he noted that “there was also
a video that likewise was in conflict with these statements.”

        Defense counsel also made use of the video at trial, although the prosecution admitted it
into evidence. Defense counsel cross-examined Hasson aggressively and attempted to use the
video to impeach the testimony that Hasson had given on direct examination. The prosecutor
also told the judge that defense counsel had seen the video before the trial, and defense counsel
did not disagree. Defense counsel additionally suggested during his closing argument that the
trial court might want to review the entire video, rather than just the portions that the prosecution
and defense counsel played during the trial. Thus, while it is unclear to what extent defense
counsel viewed the video, there is nothing in the record to rebut the presumption that he at least
performed a reasonable investigation. See Lopez, 305 Mich App at 693; Eisen, 296 Mich App at
329; McGhee, 268 Mich App at 626.

        On appeal, defendant offers no legal authority to support his contention that defense
counsel was required to watch the video with him. Nor does defendant establish that defense
counsel’s reasonable investigation of the video prejudiced him. See Gaines, 306 Mich App at
300. In his brief on appeal, defendant argues that reviewing the video with defense counsel
would have enabled him to point out the casual nature of the interaction between defendant,
Verge, Conder, and Hasson, and he further contends that the video would have shown no
physical altercation between defendant and Hasson. Defendant does not state, however, why
defense counsel would have been unable to glean these details on his own. Further, defense
counsel raised the issue of a physical altercation during his cross-examination of Hasson when he
said, “And that’s Mr. – and then Mr. Mosson walks away. Did you see that? No one’s running.
No one’s running towards you a second time. Did you see that?” Hasson retorted that the video
did not include all of the interactions between the four men, and he also stated on redirect
examination that the surveillance video did not capture the entire area around the liquor store and
the apartment. Accordingly, a review of the record indicates that defense counsel’s decision not
to use the video more extensively was a matter of reasonable trial strategy, and defense counsel’s


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failure to review the video with defendant did not prejudice him. See Gaines, 306 Mich App at
300; Wiggins, 539 US at 521-522.

                                       B. FINGERPRINTS

        Defendant next contends that defense counsel was ineffective for failing to request
fingerprint analysis on the apartment’s second-story door handle, as that analysis would have
revealed that defendant was never in the apartment. There was no testimony, however, that
defendant ever touched the handle with his hand. Hasson testified that the door was “splintered
like a person was kicking it,” and Conder and Hasson both recalled that the handle had been
broken off the door. Conder’s testimony, coupled with the damage to the apartment, convinced
the trial court that defendant had indeed been inside, and it is doubtful that the absence of
defendant’s fingerprints on the second-story door handle would have changed the judge’s mind.
Moreover, Hasson testified that the first-floor entry where defendant first broke in was part of the
apartment and was where he and Conder kept their coats and mail. Thus, defendant need not
have ascended to the second story or touched the door there for the court to find him guilty of
home invasion. Accordingly, the absence of his fingerprints on the door handle did not
constitute a substantial defense, and defense counsel reasonably chose not to investigate it or
present it to the trial court. See Chapo, 283 Mich App at 371; Wiggins, 539 US at 521-522.
Defendant was also not prejudiced by defense counsel’s choice in this regard because there is no
reasonable probability that the lack of defendant’s fingerprints on the handle would have
changed the trial’s outcome. See Gaines, 306 Mich App at 300.

                                    C. PRIOR CONVICTION

        MRE 609 governs impeachment of a witness by evidence of conviction of a crime. The
rule, however, does not permit wholesale admissibility of any past criminal conviction. Only a
criminal conviction involving an element or dishonesty or false statement or a criminal
conviction involving theft punishable by more than one year’s imprisonment or death is
potentially admissible under the rule. MRE 609(a)(1) and (2). Additionally—and more
importantly for defendant’s appeal—MRE 609(c) bars the admission of evidence of a criminal
conviction “if a period of more than ten years has elapsed since the date of the conviction or of
the release of the witness from the confinement imposed for that conviction, whichever is the
later date.”

       On appeal, defendant contends that defense counsel’s failure to clarify on the record that
he had no prior felonies containing elements of theft or dishonesty led him not to testify.
Specifically, the criminal conviction in question stemmed from a 1995 arrest that the prosecution
characterized as a breaking and entering a building with intent conviction and defense counsel
maintained was an entering without owner’s permission conviction. In either case, evidence of
the conviction was inadmissible under MRE 609 because defendant was convicted in 1995 and
was only sentenced to a year of probation. See MRE 609(c).

       Under those circumstances, defense counsel’s refusal to state on the record that defendant
had never been convicted of a felony involving theft or dishonesty was entirely reasonable. See
Walker, 497 Mich at 895. Indeed, such a statement would have been utterly useless. Defendant
equally fails to show prejudice as a result because evidence of the conviction would have been

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inadmissible under MRE 609 whether defense counsel made the statement on the record or not.
See Gaines, 306 Mich App at 300.

                               D. DECISION NOT TO TESTIFY

         Both the United States Constitution and the Michigan Constitution confer upon a criminal
defendant the right to testify at trial. US Const, Am XIV; Const 1963, art 1, §§ 17, 20. But
“[a]lthough counsel must advise a defendant of this right, the ultimate decision whether to testify
at trial remains with the defendant.” People v Bonilla-Machado, 489 Mich 412, 419; 803 NW2d
217 (2011). If a defendant intentionally relinquishes or abandons the right to testify, the right
will be deemed waived. See People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000).
Finally, as with all claims of ineffective assistance, a defendant must establish the factual
predicate for a claim that defense counsel was ineffective in advising the defendant not to testify.
See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        We note at the outset that defendant’s self-serving affidavit is the only evidence he offers
to support his claim that defense counsel provided ineffective assistance by advising him not to
testify. This Court’s review, however, is limited to the existing lower court record. See Lopez,
305 Mich App at 693; People v Watkins, 247 Mich App 14, 31; 634 NW2d 370 (2001) (refusing
to consider the defendant’s affidavit in support of an ineffective assistance of counsel claim
because it was not part of the lower court record), aff’d but criticized on other grounds by 468
Mich 233 (2003). At trial, the following exchange took place between defendant, defense
counsel, and the trial judge after the prosecution’s case-in-chief:

              Mr. McRipley [defense counsel]: On behalf of Mr. Mosson he’s been
       advised of his right to testify in this trial, has indicated to me that he would like to
       waive that right and we’ll go straight to closing, your Honor.

               Is that correct, Mr. Mosson?

               Defendant Mosson: Yes, sir.

              The Court: If so, Mr. Mosson, you, for the record I think that’s clear.
       You know you have the right to testify and if you don’t it’s your call, your choice
       as to whether you do or do not. So again it’s your call, your choice, is that right,
       sir?

               Defendant Mosson: Yes, sir.

               The Court: Very well.

Defendant also acknowledged at his sentencing that he had the opportunity to testify at his trial
and had waived that right. He remarked that he knew he had to live with his decision, but said
that, “I kind of regret not testifying now because certain things didn’t come out to light.” Thus,
rather than supporting defendant’s claim that defense counsel persuaded him not to testify, the
record establishes that defendant was apprised of his right to testify and voluntarily waived that
right. See Carter, 462 Mich at 215. Accordingly, defendant fails to establish the factual


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predicate for his claim and cannot demonstrate that defense counsel’s performance failed to meet
an objectively reasonable standard. See Walker, 497 Mich at 895; Hoag, 460 Mich at 6.

         Additionally, while this Court need not consider defendant’s affidavit, defendant asserts
that he was helping Verge collect money from Conder for a drug debt, and that he would have
testified to that effect had defense counsel not advised him otherwise. Advising defendant not to
testify was therefore sound trial strategy, as his testimony would only have provided defendant’s
justification for his actions and would not have negated the testimony that the criminal acts
occurred. See Unger, 278 Mich App at 242-243. Defense counsel’s advice did not lead to
defendant’s acquittal but it was, nevertheless, sound trial strategy. See Matuszak, 263 Mich App
at 61.

        Moreover, we simply cannot determine what effect, if any, defendant’s testimony may
have had on the trial because this Court’s review is limited to the lower court record and because
defendant did not testify. See Lopez, 305 Mich App at 693. Defendant therefore fails to
establish that the outcome of the case would have been different had he testified, and thus, fails
to show that defense counsel’s performance at trial prejudiced him. See Gaines, 306 Mich App
at 300.

                                II. SENTENCING GUIDELINES

        Defendant next contends that he is entitled to resentencing because the trial court used the
incorrect cell in calculating his guidelines sentence range, and that his sentence was based on
incorrect information as a result. Defendant further contends that defense counsel’s failure to
correct the trial court’s error constituted ineffective assistance of counsel. We disagree.

         Proper interpretation and application of the statutory sentencing guidelines “are both
legal questions that this Court reviews de novo.” People v Francisco, 474 Mich 82, 85; 711
NW2d 44 (2006). “In general, a defendant is entitled to resentencing on the basis of a scoring
error if the error changes the recommended minimum sentence range under the legislative
guidelines.” Id. at 89 n 8. Furthermore, if a trial court’s scoring error results in a higher
sentencing guidelines range, this Court must remand for resentencing even if the actual sentence
imposed fell within the correct guidelines range. Id. at 88-91. “Where a scoring error does not
alter the appropriate guidelines range, resentencing is not required.” People v Bowling, 299
Mich App 552, 563; 830 NW2d 800 (2013) (citation and quotation marks omitted).
Additionally, this Court has held that “when a trial court sentences a defendant in reliance upon
an inaccurate guidelines range, it does so in reliance upon inaccurate information.” Francisco,
474 Mich at 89 n 7. Our Michigan Supreme Court, in turn, has held that a defendant’s sentence
that is based on inaccurate information requires remand for resentencing. People v Jackson, 487
Mich 783, 792; 790 NW2d 340 (2010).

        Defendant argues, and the prosecution concedes, that the trial court used the wrong
sentencing cell after making changes to defendant’s offense variable (OV) and prior record
variable (PRV) totals. A review of the Sentencing Information Report (SIR) the trial court used
at sentencing supports their assertions. The SIR shows the trial judge’s handwritten corrections
to the original point totals, which reduced defendant’s OV total from 36 to 26 and PRV total
from 60 to 55. Assuming—as defendant and the prosecution do—that the inquiry ends there, the

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trial court’s subsequent use of the E-IV rather than the E-III cell would have been an error that
resulted in a sentence based on inaccurate information. See Francisco, 474 Mich at 89 n 7.
Accordingly, remand for resentencing would be required. See Jackson, 487 Mich at 792.

        However, the trial court did, in fact, use the correct sentencing cell. The trial court’s SIR
originally assessed 10 points for OV 4, 15 points for OV 8, 10 points for OV 14, and one point
for OV 16, for a total of 36 points. After hearing arguments regarding the OVs, the court
changed OV 14 to zero on the SIR, then changed defendant’s OV total to 26. OV 9 was left at
zero on the SIR. During sentencing, however, the prosecution argued that OV 9 should be
properly assessed at 10 points because there were two victims in the case. The trial judge asked
for a response, and defense counsel discussed OV 8 briefly before stating, “I’m agreeing that
OV-9 should be 10 and I think OV-8 they made a mistake.” The judge briefly discussed OV 8
and concluded that 15 points was an appropriate assessment, then noted shortly after, “. . . that
would add 10 to the OV as it stands right now based on your, your comments, okay?”
Presumably, as no other OVs had been discussed up to that point, the judge meant that he
intended to assign 10 points to OV 9, an assessment that the prosecutor and defense counsel both
explicitly agreed with.

        Despite the fact that the trial judge failed to write 10 points in for OV 9 on the SIR, the
sentencing transcript reveals his intention to do just that. Further, it reveals that the prosecution
and defense counsel were both aware of that fact and assented to the assessment. Defendant’s
OV total, then, should have been 36, not the 26 that the trial judge wrote on the SIR.
Defendant’s PRV total was 55, as correctly expressed on the SIR. Using the appropriate
sentencing grid, the court should then have sentenced defendant using the E-IV cell, with a
sentencing range of 84 to 140 months. MCL 777.63. The SIR indicates that the court did indeed
use the E-IV grid to arrive at a sentencing range of 84 to 140 months. Accordingly, based on all
parties’ statements at sentencing, the trial judge correctly sentenced defendant despite his failure
to add 10 points for OV 9 on the SIR, and defendant’s sentence was not based on inaccurate
information. See Jackson, 487 Mich at 792; Francisco, 474 Mich at 89 n 7.

        Defendant’s claim of ineffective assistance of counsel on this issue must also fail because
the trial court sentenced defendant correctly. While defense counsel perhaps could have been
more diligent in determining exactly what defendant’s OV total was and what sentencing cell the
court was using, defendant fails to establish that counsel’s performance at sentencing fell below
an objective standard of reasonableness. See Walker, 497 Mich at 895. Moreover, if defense
counsel had corrected the trial judge, the only difference would have been that the judge would
have written 10 points in for OV 9 on the SIR, not that the court would have given defendant a
lesser sentence under the E-III cell. Accordingly, defendant fails to show that he was prejudiced.
See Gaines, 306 Mich App at 300.

       Affirmed.



                                                              /s/ Joel P. Hoekstra
                                                              /s/ Kathleen Jansen
                                                              /s/ Patrick M. Meter

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