                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 14, 2018
              Plaintiff-Appellee,

v                                                                  No. 329480
                                                                   Oakland Circuit Court
ERIC DARNELL GALLOWAY,                                             LC No. 2004-194051-FC

              Defendant-Appellant.


                                         ON REMAND

Before: MARKEY, P.J., and METER and SHAPIRO, JJ.

PER CURIAM.

        Defendant was convicted after a bench trial of second-degree murder, MCL 750.317,
first-degree fleeing or eluding a police officer, MCL 257.602a(5), operating a motor vehicle with
a suspended license causing death, MCL 257.904(5), failure to stop at the scene of an accident
causing death, MCL 257.617(3), two counts of second-degree fleeing or eluding resulting in
serious injury, MCL 257.602a(4)(a), two counts of operating a motor vehicle with a suspended
license causing serious injury, MCL 257.904(5), receiving or concealing a stolen motor vehicle,
MCL 750.535(7), and possession of marijuana, MCL 333.7403(2)(d). He was sentenced as a
third habitual offender, MCL 769.11, to 32 to 50 years’ imprisonment for the second-degree
murder conviction, 14 to 30 years’ imprisonment for the first-degree fleeing or eluding a police
officer, operating a motor vehicle with a suspended license causing death, and failure to stop at
the scene of an accident causing death convictions, 9 to 20 years’ imprisonment for the two
second-degree fleeing or eluding resulting in serious injury convictions, 4 to 10 years’
imprisonment for the two operating a motor vehicle with a suspended license causing serious
injury convictions, 3 to 10 years’ imprisonment for the receiving or concealing a stolen motor
vehicle conviction, and 235 days’ jail time for the possession of marijuana conviction. This
Court affirmed defendant’s convictions and sentences. People v Galloway, unpublished per
curiam opinion of the Court of Appeals, issued February 14, 2006 (Docket No. 257850)
(Galloway I). This Court also affirmed the trial court’s subsequent denial of defendant’s motion
for relief from judgment. People v Galloway unpublished per curiam opinion of the Court of
Appeals, issued June 15, 2017 (Docket No. 329480) (Galloway II), which in lieu of granting
leave to appeal, our Supreme Court vacated and remanded to this Court. People v Galloway, 501
Mich 950; 904 NW2d 854 (2018) (Galloway III).


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        In Galloway III, our Supreme Court determined that this Court in Galloway II failed to
address defendant’s argument that his trial counsel did not account for habitual offender
enhancement when advising defendant regarding the applicable sentence guidelines range.
Galloway III, 501 Mich 950. The Court’s order directed this Court to remand this matter to the
trial court to conduct a hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922
(1973), and to direct the trial court to “determine whether the defendant was denied the effective
assistance of trial counsel based on his claim that he would have accepted a plea offer with a
sentencing agreement, but for counsel’s error, and that the trial court would have accepted the
agreement.” Galloway III, 501 Mich 950. This Court entered its order in accordance with our
Supreme Court’s directive and remanded this matter to the trial court for an evidentiary hearing

       to determine whether “defendant was denied the effective assistance of trial
       counsel based on his claim that he would have accepted a plea offer with a
       sentencing agreement, but for counsel’s error, and that the trial court would have
       accepted the agreement. At the conclusion of the hearing, the trial court shall
       reconsider the defendant’s motion for relief from judgment under the prejudice
       analysis applicable to claims of ineffective assistance of counsel at the plea stage.
       See People v Douglas, 496 Mich 557 (2014).” [People v Galloway, unpublished
       order of the Court of Appeals, entered February 8, 2018 (Docket No. 329480),
       quoting Galloway III, 501 Mich at 950.]

       The trial court conducted a Ginther hearing on April 11, 2018 there. Afterwards, the trial
court entered an order on April 19, 2018, denying defendant’s motion for relief from judgment.
Since the trial court’s order and a transcript of the Ginther hearing with the trial court’s findings
have now been filed with this Court, we will now endeavor to “resolve the issues presented by
the defendant.” Galloway III, 501 Mich at 950. We again conclude defendant’s arguments do
not merit relief and affirm.

        Before his trial, defendant’s counsel, Mitchell Ribitwer, wrote to defendant on June 2,
2004, advising defendant of the likely minimum sentence under the guidelines that he faced
should he be convicted of the main charge of second-degree murder (“225 months to 375
months, or life”) or the lesser included offense of manslaughter (“50 to 150 months”). On June
8, 2004, Ribitwer again wrote defendant advising him of a pretrial conference to be held on June
11, 2004, and of a prosecution offer of a plea bargain for defendant to plead guilty or no contest
to the pending charges with “a sentence agreement with you, and approved by the Court, for a
sentence of 10 to 15 years . . . .” The letter advised defendant that the sentence bargain was “a
considerable departure from your guideline” of a minimum sentence regarding second-degree
murder (“225 months (18 ¾ years) to 375 months (31 ¾ years) or life”) or the lesser included
offense of manslaughter (“minimum of 50 months, which is 4.2 years up to 150 months, which is
12.5 years”). Although this letter stated that defendant’s maximum sentence “could be up to life
because of the habitual charges”, it did not explain the effect of defendant’s habitual offender
status on his guidelines recommended minimum sentence range.

       During the June 11, 2004 pretrial hearing, Ribitwer stated that he had met with defendant
on June 10, 2004, to discuss the prosecution plea offer to recommend a minimum sentence of 10
to 15 years’ imprisonment if defendant pleaded guilty to second-degree murder. Ribitwer stated
that defendant had rejected the prosecution’s offered plea agreement and that defendant

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requested a bench trial. The trial court stated that the proposed plea agreement “is way under the
guidelines [and] is not on the table, after a Bench trial.” In response, Ribitwer stated that he had
explained to defendant that the plea bargain was a “departure on the minimum end of eight and a
half years[.]” The trial court replied: “Yeah, that’s substantial. And that will not even be
considered . . . .” Ribitwer also commented that because of the habitual, even if defendant were
convicted of only manslaughter, the guidelines would still be 50 to 150 months.

        The trial judge clarified her position when she stated, “I want [defendant] to understand
that. He’s not - - you know - - because he agrees to waive jury doesn’t mean that I’m deviating
below the guidelines. Okay? That’s what I was saying to you at side bar.” The trial court then
conducted a jury trial waiver colloquy with defendant and during the colloquy the trial court
asked defendant, “[a]nd this sentence agreement that the Prosecutor and the - - and your attorney
had worked out, is not on the table, after a Bench trial. You understand that?” Defendant
replied, “I understand.”

        After trial, the court found defendant guilty of second-degree murder and the other
charges. On July 26, 2004, the trial court sentenced defendant. While Ribitwer had calculated in
his pretrial letters 47 prior record variable (PRV) points and 95 offense variable (OV) points,
resulting in an PRV/OV guidelines grid of D/II, the actual guidelines scores were 77 PRV points
and 100 OV points. This, correct actual score resulted in a recommended guidelines grid
(PRV/OV) of F/III. Ribitwer had also failed to consider that the habitual offender charges would
increase the upper end of the recommended minimum sentence range. Consequently,
defendant’s recommended minimum sentence guidelines range was calculated at 365 to 900
months’ imprisonment for his second-degree murder conviction, as opposed to the 225 to 375
months stated in Ribitwer’s letters. The trial court sentenced defendant to 32 to 50 years’ (384 to
600 months’) imprisonment for the second-degree murder conviction.

       On June 18, 2013, defendant, proceeding in propria persona, moved for relief from
judgment in which he alleged the denial of his right to the effective assistance of counsel because
his court-appointed attorney “gave substandard advice about his sentence exposure under the
Sentencing Guidelines during plea negotiations.” Defendant based his claim on the two letters
Ribitwer wrote him dated June 2 and 8, 2004, both of which he had received before rejecting the
prosecution’s plea offer that contained a sentence bargain of 10 to 15 years. Defendant asserted
that good cause was established because defense counsel grossly underestimated and
misrepresented defendant’s “sentencing exposure.” Defendant asserted he was prejudiced
“because he relied on his counsel’s advice regarding his sentence exposure [in] formulating his
decision to reject [the] plea agreement” offered by the prosecutor.

       At a hearing on March 25, 2015, the trial court recognized the necessity of establishing
both good cause and prejudice to support defendant’s motion for relief from judgment. The trial
court initially focused on the prejudice prong, noting that defense counsel had made an
“avoidably erroneous guidelines calculation.” The trial court focused on the plea offer of 10 to
15 years’ imprisonment in comparison to the guidelines range of 18¾ to 31¼ years (225 to 375
months) identified by defense counsel and the adjudicated guidelines range of 30¼ to 75 years
(365 to 900 months) used at sentencing. The trial court reasoned there was a stark difference
when comparing the plea offer to the “erroneously advised range” and the accurate or
adjudicated range. The trial court determined that defendant should not be afforded the benefit

                                                -3-
of hindsight or “the benefit of a starker contrast.” Although the trial court’s reasoning is difficult
to follow, the court appears to have found that the “starker contrast” of the accurate guidelines
scoring would not have caused defendant to accept the plea offer; therefore, defendant had failed
to establish prejudice to justify relief from judgment. This Court affirmed, Galloway II, but our
Supreme Court vacated this Court’s opinion and remanded the matter to this Court. Galloway
III. This Court then remanded the matter to the trial court on February 8, 2018 to conduct a
Ginther hearing “to determine whether “defendant was denied the effective assistance of trial
counsel based on his claim that he would have accepted a plea offer with a sentencing
agreement, but for counsel’s error, and that the trial court would have accepted the agreement.’ ”
Galloway, unpub order, quoting Galloway III, 501 Mich 950.

        On April 11, 2018, as directed by this Court, the trial court conducted a Ginther hearing.
At the hearing, the two June 2004 letters authored by defense counsel, Matthew Ribitwer, were
entered into evidence, and both defendant and Ribitwer testified. Defendant acknowledged that
the letter he received from defense counsel identified the maximum penalty for second-degree
murder as “life” but indicated “that isn’t the way that I understood it.” Defendant asserted that
defense counsel’s reference to his status as a third habitual offender was “only mentioned . . . in
regards to the manslaughter charge” but did not refer to its effect on the sentence guidelines for a
second-degree murder conviction. Defendant acknowledged that based on his receipt of the June
8, 2004 letter from defense counsel, he understood the possible sentence for a second-degree
murder conviction to be 18 to 31 years. Defendant asserted that his request for relief from
judgment was based on his receipt from defense counsel of “incorrect advice regarding my
minimum sentence if found guilty of second-degree murder” and that had he known the
possibility that the guidelines range would extend to 900 months, that it would have “definitely”
affected his consideration of the plea offer. When asked how this information would have
affected his decision-making, defendant stated, “Knowing that -- that I faced a minimum of 32
years, I was -- . . . -- I was -- you know, maybe would have took those 10 years knowing I was
facing an extra 22 years versus taking 10 years.” (Emphasis added). Defendant denied being
aware that he was facing the possibility of 32 years in prison when he rejected the offer.

         Defendant also denied communicating with his attorney regarding the sentencing
guidelines range other than through defense counsel’s correspondence. Defendant admitted that
his conviction was virtually certain given the existence of his confessions, but said he was not
sure whether he would be convicted of second-degree murder or manslaughter. Defendant could
not recall whether defense counsel had advised him that the probability of his conviction was
100%. Defendant admitted, however, that defense counsel had advised him to accept the plea
offer. Defendant indicated some confusion about the number of his prior convictions for drug
charges and acknowledged providing defense counsel with vague information regarding those
convictions. Defendant stated that despite being given a copy of his presentence investigation
report, he “never looked at it.” Defendant could not recall whether at the time leading up to his
trial, he was actively attending or listening to his defense counsel.

        Ribitwer testified that he always informs his clients of plea offers and that any calculation
of the guidelines range before trial cannot necessarily accurately predict what information will
come out at trial to affect the scoring of the guidelines. Consequently, the only promise Ribitwer
would provide to a client “is you’re going to get more time if you don’t take a deal.” Ribitwer
indicated that the prosecution’s plea offer in this case was unusual in light of the egregious

                                                 -4-
nature of the conduct alleged and the certainty of conviction. He further indicated that he
discussed the offer with defendant multiple times. Ribitwer predicted the probability of
defendant’s conviction to be “[a] hundred percent.” Based on the information defendant
provided regarding his prior criminal history, Ribitwer conveyed a guidelines range of
“somewhere between 225 months to 375” to defendant, but he also informed defendant “he
could be looking at life in prison.” With regard to his discussions with defendant, Ribitwer
testified that the prosecutor’s office rarely offered the kind of sentence agreement that was
offered in this case in similar situations. Ribitwer thought the plea offer was “the deal of the
century” and “pretty much a gift based upon all the circumstances of this case.” According to
Ribitwer, defendant believed that if he were convicted of manslaughter, “his guidelines would be
lower, and he could get a better sentence.” But Ribitwer advised defendant that “if you go to
trial and lose, you’re going to get 30-plus years.” After relating the egregious nature of the facts
of the case, Ribitwer testified that he advised defendant that he was “going to go to prison for
more than 30 years because the guidelines called for it, and I told him, you could get life.”
Ribitwer said he told defendant “he was stupid for not taking the plea.” Ribitwer testified that he
made numerous trips to the jail to consult with defendant in an effort to convince him to accept
the plea offer.

       When queried, Ribitwer asserted that the calculated guidelines range did not affect
defendant’s decision to reject the plea offer. Rather, defendant’s focus was on not wanting to
spend 10 years in prison. According to Ribitwer, had defendant asserted on the date of trial that
he wanted to accept the plea offer, Ribitwer would have approached the prosecutor, but he was
unsure of what the prosecutor’s response would have been at that late date. Ribitwer indicated
that typically “if somebody rejects an offer and the prosecutor brings everybody into the
courtroom and they’re ready to go to trial on that day, generally the offer is off the table.”
Ribitwer was certain that the trial judge would not have accepted a plea on the day of trial.
When asked whether the correct calculation of the guidelines would have affected defendant’s
decision to reject the plea offer, Ribitwer opined that it would not have “because I told him he
could do life in prison. He knew he was facing life in prison. What difference if it was 375, 600
or 900 [months], and I told him he’s going to get . . . 25, 30 years or more in prison.”

        The trial court allowed defendant to testify regarding his recollection of the morning of
trial. Defendant said he informed defense counsel that he wanted to accept the plea at that time,
and defense counsel began filling out a form to take to the courtroom to “see if the judge is
willing to accept the plea.” When trial was about to begin, defendant asked Ribitwer what
occurred with the plea and was told “the family said it or the prosecutor said that the family said
it, but what he said was that, you know, through what I remember is he said that the family said
that because we’re here already, we might as well go through with the trial.”

       At the conclusion of the Ginther hearing, the trial court ruled it would deny defendant’s
motion for relief from judgment based on ineffective assistance of counsel. With respect to
whether defendant would have accepted the plea offer if he had been advised of the actual later
adjudicated sentence guidelines range, the trial court explained that in his opinion the answer
was “no.” Regarding whether the then trial judge would have accepted the plea bargain on the
day of trial, the trial court stated “I don’t know whether I can answer, but I’ll do the best that I
can.” The trial court noted that the parties agreed that on the date of the pretrial, June 11, 2004,


                                                -5-
the trial judge would have accepted the plea bargain, but that whether the trial judge would have
accepted the plea bargain on the first day of trial was beyond the scope of the remand order.

        The trial court entered its order on April 19, 2018 denying defendant’s motion for relief
from judgment “for the reasons stated on the record” at the evidentiary hearing. The matter has
now returned to this Court, and our Supreme Court has mandated that this Court “resolve the
issues presented by the defendant.” Galloway III, 501 Mich at 950.

        “We review a trial court’s decision on a motion for relief from judgment for an abuse of
discretion and its findings of facts supporting its decision for clear error.” People v Swain, 288
Mich App 609, 628; 794 NW2d 92 (2010). The trial court commits an abuse of discretion when
its decision falls outside the range of reasonable and principled outcomes, or makes an error of
law. Id. We will determine a trial court’s finding is clearly erroneous if, on review of the entire
record, we are left with a definite and firm conviction that a mistake has been made. People v
McSwain, 259 Mich App 654, 682; 676 NW2d 236 (2003).

        A defendant’s claim of ineffective assistance of counsel presents a mixed question of law
and fact. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “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 Grant, 470 Mich 477, 484;
684 NW2d 686 (2004). This Court reviews the trial court’s findings of fact for clear error, and
reviews questions of constitutional law de novo. Trakhtenberg, 493 Mich at 47. “Clear error
exists if the reviewing court is left with a definite and firm conviction that the trial court made a
mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).

        In reviewing claims of ineffective assistance of counsel, Michigan applies the standard
established in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
(1984). See People v Hoag, 460 Mich 1, 5-6; 594 NW2d 57, 59 (1999). This standard requires a
convicted defendant establish “that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.” Trakhtenberg, 493 Mich at 51. A defendant is
also entitled to the effective assistance of counsel during the pretrial 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 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,

       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

                                                -6-
       that in fact were imposed. [Douglas, 496 Mich at 592, quoting Lafler, 566 US at
       164 (quotation marks omitted).]

As with any claim of ineffective assistance of counsel, the defendant must establish the factual
predicate of his claim. Douglas, 496 Mich at 592, citing Hoag, 460 Mich at 6.

        Initially we note that the trial court on remand did not explicitly address the prejudice
analysis as outlined in Douglas, 496 Mich at 592, and Lafler, 566 US at 163-164. But the trial
court, based on the evidence presented to it, found that defense counsel’s error—inaccurate
advice regarding the pertinent sentencing guidelines range—did not affect defendant’s rejection
of the offered plea bargain. In other words, defendant failed to establish a reasonable probability
that with accurate advice regarding the sentencing guidelines, i.e., but for counsel’s error,
“ ‘defendant would have accepted the plea’ ” bargain. Douglas, 496 Mich at 592, quoting Lafler,
566 US at 164. In light of the evidence presented to the trial court at the Ginther hearing, we are
not “left with a definite and firm conviction that the trial court made a mistake.” Armstrong, 490
Mich at 289. Because the trial court did not clearly err in its factual determination regarding the
effect of counsel’s error, defendant has failed to establish the prejudice prong of his claim of
ineffective assistance of counsel. Douglas, 496 Mich at 592. It follows that the trial court did
not abuse its discretion by denying defendant’s motion for relief from judgment because he was
not prejudiced by counsel’s error. Swain, 288 Mich App at 628.

        Although in his motion for relief from judgment defendant argues that he relied to his
detriment on defense counsel’s miscalculation of his sentencing guidelines range in electing to
reject the offered plea bargain, there is no evidence to substantiate this claim. Even in the
miscalculated version of the sentence guidelines, defendant was aware that his minimum
sentence range encompassed a minimum sentence of up to 31½ years or even life imprisonment.
Defendant was sentenced to 32 years’ imprisonment (less credit for 235 days served), which is
very close to the range calculated by defense counsel, albeit at the high end of the range. In
addition, defense counsel informed defendant on at least two occasions, in writing, that he could
receive a sentence of life in prison. As such, defendant was clearly informed that he faced a
prolonged and lengthy time in prison if convicted.

        Further, it is undisputed that defense counsel advised defendant to accept the plea based
on the very high probability that he would, in fact, be convicted as charged. Defense counsel
specifically told defendant that the prosecution’s plea offer constituted a “considerable departure
from your guideline.” At the pretrial hearing, the trial court encouraged defendant to seriously
consider the offer because it constituted a “substantial” departure from the sentencing guidelines
range, and the court directly explained to defendant that upon conviction after a trial, it would
not grant a downward departure in sentencing commensurate with the prosecution’s plea offer.
Defense counsel, at the pretrial hearing, again emphasized that the offer was “a departure on the
minimum end” of defendant’s anticipated guidelines range in excess of eight years. Thus, at the
pretrial stage, defendant was apprised of and had sufficient information to know that the
prosecution’s offer would result, at a minimum, in a sentence reduction in the range of 3¼ to
16½ years in prison from even the miscalculated guidelines range. In addition, although
defendant contends that it “definitely” would have made a difference in his consideration of the
plea offer had he known of the possibility that the guidelines range would extent to 900 months,
when asked specifically how this information would have affected his decision, defendant was

                                                -7-
equivocal and uncertain, suggesting that “maybe” he “would have took those 10 years knowing I
was facing an extra 22 years versus taking 10 years.” Of further import is defendant’s blatant
acknowledgement that at the time leading up to trial he was not necessarily heeding or relying on
the advice of his counsel.

        According to Ribitwer’s testimony, defendant’s decision to reject the plea offer was more
likely premised on his hope that he would only be convicted of manslaughter rather than second-
degree murder and that he would thus receive a lesser sentence even without the plea agreement.
Defendant was informed by defense counsel that if he were convicted of manslaughter, his
guidelines range would be 4.2 to 12.5 years. Defense counsel also warned defendant that
because of “the habitual charges,” even with a manslaughter conviction, defendant could still
face a maximum of “up to life.” Defense counsel’s letter indicated that manslaughter was a
possible alternative outcome but not that it was likely. In his testimony, Ribitwer testified that in
his conferences with defendant, he strongly and repeatedly encouraged defendant to accept the
plea because his chances of conviction were 100%, and defendant faced a minimum of “30-plus
years” and the possibility of life in prison. According to Ribitwer, he also informed defendant
that even under the best-case scenario of a conviction for manslaughter, defendant still faced in
excess of 10 years in prison because of his habitual offender status. The evidence suggesting
that defendant’s election to forego the plea offer was premised on the possibility of a conviction
for manslaughter rather than second-degree murder obviates any reliance by defendant on the
miscalculated guidelines range defense counsel provided and is contrary to his claim of
ineffective assistance of counsel. Defendant’s election to reject the plea offer was a gamble that
not only would he be convicted of and sentenced for manslaughter but also that he would be
sentenced to the lower end of the guidelines range for manslaughter. Defendant’s gamble was
inconsistent with defense counsel’s advice to defendant. Even with a conviction and sentence
for manslaughter, defendant actively ignored defense counsel’s warning that he could still face
life in prison or a minimum sentence in excess of that offered by the prosecutor. As such, we
find nothing to support the contention that the miscalculated guidelines range was a basis for
defendant’s decision to reject the plea offer. So even though the trial court would have accepted
the plea agreement at the pretrial, nothing supports defendant’s contention that he would have
accepted the plea offer if not for defense counsel’s miscalculation of the sentencing guidelines
range.

        Defendant has failed to carry his burden of establishing entitlement to relief from
judgment. There is no dispute that the terms of the plea offer were “less severe” than the actual
sentence received. Douglas, 496 Mich at 592. But while acknowledging defense counsel’s
miscalculation of defendant’s possible sentencing guidelines range, defendant has not shown that
this error caused or even contributed to defendant’s rejection of the prosecution’s plea offer.
While the trial court was willing to accept the plea offer at the pretrial hearing stage of the
proceedings, defendant refused the offer despite sufficient information regarding the possible
sentence he was facing if convicted after a trial and the multiple warnings and explanations
regarding the limited availability of the offer and the substantive nature of the plea offer.
Patently, defendant had sufficient information available during the plea negotiations despite
defense counsel’s incorrect guidelines calculation to permit defendant “to make an informed and
voluntary choice between trial and a guilty plea.” People v Corteway, 212 Mich App 442, 446;
538 NW2d 60 (1995). The miscalculated guidelines were effectively irrelevant to defendant’s
decision. Defendant focused on the possibility, albeit slim, of a conviction for manslaughter

                                                -8-
rather than second-degree murder and a possible lesser sentence for that conviction. There is no
evidence, other than to the contrary, that defendant was in any manner encouraged to proceed to
trial on the off chance that he would be convicted of the lesser charge. Indeed, he was repeatedly
advised of the high probability of his conviction and the likelihood of receiving a lengthy
sentence, commensurate with that he actually received.

        Defendant’s contention that he sought to accept the plea offer at the onset of trial only
confirms the lack of influence that the miscalculated guidelines range had on defendant’s earlier
decision to reject the plea offer. Nothing, other than the reality of the onset of trial, had changed
in the interim, yet defendant asserts he belatedly expressed a desire to accept the plea offer.
Unfortunately for defendant, at this late point in the proceeding, as had been made abundantly
clear to him by the trial court previously, the trial court would no longer accept the plea offer. In
addition, the testimony demonstrated that the prosecutor had rescinded the offer, despite
defendant’s willingness to offer his acceptance at the point everyone was present for trial. While
the trial court was willing to accept the plea agreement at the pretrial hearing, unrebutted
evidence indicates the court would not have accepted the agreement at the onset of trial or even
that the prosecution’s offer remained a viable option. Defendant’s willingness to accept the plea
offer at the start of trial demonstrates that his acceptance or rejection was not premised on the
miscalculated guidelines range.

        In sum, defendant’s rejection of the plea offer at the pretrial hearing, despite considerable
pressure to accept the offer and the available information regarding the considerable benefits of
the offer, was not based on the miscalculated guidelines range by defense counsel but rather on
defendant’s misguided hope for a lower sentence upon conviction of manslaughter. As with any
claim of ineffective assistance of counsel, the defendant must establish the factual predicate of
his claim. Douglas, 496 Mich at 592. In this case, the trial court did not clearly err in its factual
determination that counsel’s error did not affect the outcome, and defendant has failed to
establish the prejudice prong of his claim of ineffective assistance of counsel. Douglas, 496
Mich at 592. Consequently, the trial court did not abuse its discretion in denying defendant’s
motion for relief from judgment based on ineffective assistance of counsel.

        Next, defendant argues that his appellate counsel was ineffective for not raising the issue
of ineffective assistance of trial counsel. This claim also fails.

        “[T]he test for ineffective assistance of appellate counsel is the same as that applicable to
a claim of ineffective assistance of trial counsel.” People v Uphaus (On Remand), 278 Mich
App 174, 186; 748 NW2d 899 (2008). A defendant “must show that his appellate counsel’s
decision not to raise a claim of ineffective assistance of trial counsel fell below an objective
standard of reasonableness and prejudiced his appeal.” Id. A defendant must “overcome the
presumption that his appellate counsel’s decision constituted sound strategy.” Id.; see also
Trakhtenberg, 493 Mich at 52. It is a reasonable strategy for appellate counsel to “winnow out
weaker arguments in order to focus on those arguments that are more likely to prevail.” Uphaus,
278 Mich App at 186-187, citing People v Reed, 449 Mich 375, 391; 535 NW2d 496 (1995).
“Failing to advance a meritless argument or raise a futile objection does not constitute ineffective
assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).



                                                -9-
        As discussed above, defendant has failed to establish his claim of ineffective assistance of
trial counsel. That defendant’s appellate counsel failed to raise that claim cannot constitute
ineffective assistance of appellate counsel because defendant cannot demonstrate that he was
prejudiced by his appellate counsel’s failure to do so. Thus, although the trial court did not reach
this issue, defendant cannot demonstrate good cause for his failure to raise his claim of
ineffective assistance of counsel on his direct appeal. The fact that defendant cannot
demonstrate good cause under MCR 6.508(D)(3)(a) provides an alternative basis for concluding
that the trial court did not abuse its discretion when it denied defendant’s motion for relief from
judgment. See People v Goold, 241 Mich App 333, 342 n 3; 615 NW2d 794 (2000) (“[W]hen a
lower court reaches the right result even for the wrong reason, this Court will affirm.”).

        Last, defendant contends that the trial court committed reversible error because, when it
ruled on the motion in the first instance, the trial court based its ruling on defendant’s motion for
relief from judgment, in part, on the trial court’s personal disagreement with the holding of
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). Defendant’s argument is based on his
misreading of the record. Although the trial court expressed disagreement with our Supreme
Court’s decisions permitting trial judges to engage on a limited basis in the plea-bargaining
process, the trial court also stated it recognized it must follow the law as decided by higher
courts. Specifically, the trial court observed that “its place in the scheme [was] no place” and
analyzed defendant’s argument “in light of a judicial process which authorizes . . . judicial
sentencing bargaining.” The trial court did not err.

       We affirm.

                                                              /s/ Jane E. Markey
                                                              /s/ Patrick M. Meter
                                                              /s/ Douglas B. Shapiro




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