                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 June 30, 2016
              Plaintiff-Appellee,

v                                                                No. 326978
                                                                 Calhoun Circuit Court
JOSEPH ALAN WHARTON,                                             LC No. 2015-000188-FH

              Defendant-Appellant.


Before: SAWYER, P.J., and HOEKSTRA and WILDER, JJ.

PER CURIAM.

        Defendant was convicted by a jury of two counts of carrying a concealed weapon
(CCW), MCL 750.227; third-degree home invasion, MCL 750.110a(4); felon in possession of a
firearm, MCL 750.224f; and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. He was sentenced as a fourth-offense habitual offender, MCL 769.12,
to 42 to 120 months’ imprisonment for the CCW, home invasion, and felon in possession of a
firearm convictions, consecutive to a two-year sentence for felony-firearm. He appeals as of
right. We affirm.

                                I. FACTS AND PROCEDURE

        This case arises out of a prior domestic relationship between defendant and his ex-
girlfriend (the victim). Before the couple broke up, they lived together at a house in Battle
Creek. After the relationship ended, the victim continued to reside in the Battle Creek house—
and changed the locks—while defendant moved elsewhere. The victim subsequently remained
in contact with defendant, who would occasionally stay at the Battle Creek house. He also
continued to store personal property there.

        In March 2014, defendant and the victim had an altercation of some sort, and defendant
was arrested. The victim sought and was granted a personal protection order against defendant.
Two days later, the victim woke to find defendant in her bedroom. She asked him to leave, but
he refused. Eventually, defendant left the Battle Creek house on foot. Later that evening, the
victim heard several gunshots fired “right out in front” of the house. She was certain that
defendant fired the shots and knew that he customarily carried two .45-caliber handguns. The
police were summoned and, during their investigation of the scene, discovered nine empty .45-
caliber shell casings on the road in front of the victim’s house. Suspecting that defendant was
the shooter and might still be in the area, one of the responding officers began to patrol the
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nearby roadways. Defendant was located nearby and placed under arrest. When arrested, he was
in possession of two .45-caliber handguns with extended magazines.

        Defendant was originally charged with CCW, possession of a firearm by a felon, felony-
firearm, and possession of a controlled substance less than 25 grams. The charges were
subsequently dismissed without prejudice for reasons that are unclear from the record on appeal.
The same thing occurred several times, with the prosecution issuing, dismissing, and then
reissuing the charges against defendant. Eventually, another felony complaint was issued—the
one associated with the instant case—in which defendant was charged with CCW, felony-
firearm, and possession of a controlled substance less than 25 grams. The case proceeded to a
preliminary examination. At that time, the prosecution added two additional charges: third-
degree home invasion and possession of a firearm by a felon. It is unclear from the record
whether defendant was ever arraigned on the added charges, but he was subsequently convicted
of third-degree home invasion, felon in possession of a firearm, felony-firearm, and two counts
of CCW.

         Thereafter, defendant filed a motion for an evidentiary hearing or a new trial, arguing that
he had been denied the right to effective assistance of counsel. While the body of defendant’s
motion did not specify how his trial counsel performed ineffectively, defendant’s counsel
attached a list prepared by defendant of 46 purported errors. Defendant submitted a pro se brief
in support, arguing that his trial counsel performed ineffectively by failing to ensure that
defendant was properly arraigned, failing to spend enough time with him, and refusing to submit
all of his requests to the court at the preliminary examination and at trial. Specifically, defendant
argued that his trial counsel was ineffective for refusing to object to “certain issues” at the
preliminary examination, refusing to excuse a juror, and refusing to object to a line of
questioning by the prosecution insinuating that defendant’s mother would lie to protect him.
Ultimately, the trial court denied defendant’s motion for an evidentiary hearing, reasoning that
“defendant’s laundry list of alleged deficiencies by his trial counsel fails to provide any type of
factual grounds to support his claim of ineffective assistance.”

       The instant appeal followed.

                                              II. ANALYSIS

                             A. EFFECTIVE ASSISTANCE OF COUNSEL

        Defendant first argues that he was denied the effective assistance of counsel and that the
trial court erred when it denied defendant’s motion for an evidentiary hearing and new trial. We
disagree in both respects.

        We review a trial court’s decision to grant an evidentiary hearing for an abuse of
discretion. People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). Our review of
defendant’s ineffective assistance of counsel claims is limited to error apparent on the record.
People v Buie (On Remand), 298 Mich App 50, 61; 825 NW2d 361 (2012).

       Effective assistance of counsel is presumed, and the defendant bears a heavy
       burden of proving otherwise. To establish an ineffective assistance of counsel
       claim, a defendant must show that (1) counsel’s performance was below an
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       objective standard of reasonableness under prevailing professional norms and (2)
       there is a reasonable probability that, but for counsel’s error, the result of the
       proceedings would have been different. A defendant must also show that the
       result that did occur was fundamentally unfair or unreliable. [People v Lockett,
       295 Mich App 165, 187; 814 NW2d 295 (2012) (citations omitted).]

A defendant bears the burden of proving the factual predicate for a claim of ineffective
assistance. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

        When a defendant requests a new trial and that request depends on facts not of record, the
trial court should allow the defendant to make a testimonial record in support of his motion by
holding an evidentiary hearing. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
An evidentiary hearing regarding ineffective assistance of counsel should be granted if a
defendant has “set forth . . . facts that would require development of a record to determine if
defense counsel was ineffective.” People v Williams, 275 Mich App 194, 200; 737 NW2d 797
(2007).

        On appeal, defendant argues that the trial court erred by denying his motion for an
evidentiary hearing. However, defendant did not “set forth . . . facts that would require
development of a record to determine if defense counsel was ineffective.” See id. Defendant’s
motion for a new trial and his subsequent supplemental briefs did not explain any need for facts
not on the record, nor did defendant provide any offers of proof of the facts to be established at a
hearing. As such, the trial court did not abuse its discretion when it denied defendant’s request.
See Unger, 278 Mich App at 217.

        Moreover, defendant has not established that his trial counsel performed ineffectively.
On appeal, defendant argues that his trial counsel was unable to handle the case and that, had
defense counsel been prepared and had a chance to fully evaluate the case, defendant would not
have been convicted. However, because defendant does not explain how his counsel was
ineffective or why he believes his counsel was incapable, unprepared, or had not fully evaluated
the case, defendant has failed to meet his burden of proving that defense counsel was incapable
or unprepared in such a way as to render his performance constitutionally deficient. The only
specific instance of ineffectiveness listed by defendant on appeal is that defense counsel should
have filed a motion to dismiss based on due process and harassment grounds. There is nothing in
the record to support defendant’s claim in that regard. Although defendant attached some
documents to his Standard 4 brief, such documents are not a part of the lower court record and
therefore constitute an impermissible attempt to expand the record on appeal. See People v
Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999). Because defendant has failed to
establish the factual predicate for his claim, it necessarily fails. See Hoag, 460 Mich at 6.




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                                      B. DUE PROCESS

       Next, defendant argues that reversal of his convictions is necessary because his due
process rights were violated when the prosecution continued to issue, dismiss, and reissue the
charges against him.1 We disagree.

         The second time the charges against defendant were issued, the prosecution sought an
adjournment of the preliminary examination—not dismissal—for several reasons, most notably
the absence of several necessary witnesses. Defendant objected to the adjournment, and thus the
district court dismissed the case without prejudice.

       On that basis, defendant’s instant claim of error merits no relief. Contrary to defendant’s
argument on appeal, the prosecution did not decide to dismiss the charges against him a second
time. Rather, by objecting to the prosecution’s requested adjournment, defendant caused the
case to be dismissed. “[E]rror requiring reversal cannot be error to which the aggrieved party
contributed by plan or negligence[.]” People v Gonzalez, 256 Mich App 212, 224; 663 NW2d
499 (2003), disapproval on other grounds 469 Mich 966 (2003).

                                     C. ARRAIGNMENT

        In his Standard 4 brief, defendant argues that the trial court erred by failing to arraign
defendant on charges added at the preliminary examination. We review this unpreserved issue
for plain error affecting defendant’s substantial rights. People v Reid (On Remand), 292 Mich
App 508, 514; 810 NW2d 391 (2011).

        “The purpose of an arraignment is to provide formal notice of the charge against the
accused.” People v Waclawski, 286 Mich App 634, 704; 780 NW2d 321 (2009). Arraignments
also allow a defendant an opportunity to enter a plea on the charges. People v Nix, 301 Mich
App 195, 208; 836 NW2d 224 (2013). At an arraignment on the information, the “court must
either state to the defendant the substance of the charge contained in the information or require
the information to be read to the defendant.” MCR 6.113(B). However, “[a]fter trial on the
merits want of plea does not render a conviction invalid.” Nix, 301 Mich App at 208, quoting
People v Weeks, 165 Mich 362, 364; 130 NW 697 (1911). A showing of actual prejudice is
required to merit relief for a failure to hold an arraignment. MCR 6.113(A); Nix, 301 Mich App
at 208. The information may be amended at any time before, during, or after a trial, unless doing
so would prejudice the defendant. People v Russell, 266 Mich App 307, 317; 703 NW2d 107
(2005); MCR 6.112(H).

       It is not clear from the record whether defendant was actually arraigned on the two
charges the prosecution added at his preliminary examination. Regardless, even assuming that
defendant was not arraigned, he has failed to establish that he was prejudiced by the lack of


1
 Defendant attached documents regarding the previous charges to his Standard 4 brief on appeal.
However, we may not expand the record on appeal, and therefore cannot consider such
documents. See Powell, 235 Mich App at 561 n 4.


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arraignment. Defendant had notice of the charges against him because he was present at the
preliminary examination where he was bound over for trial on the added charges and because the
prosecution filed an amended information. See Waclawski, 286 Mich App at 706. Further,
defendant has not suggested anything that his attorney would have done differently had he been
arraigned on the additional charges, or articulated how the lack of arraignment impacted him in
any way. See People v McGee, 258 Mich App 683, 693; 672 NW2d 191 (2003). Indeed,
considering defendant’s presence at the preliminary examination where the charges were
amended, defendant cannot establish prejudice. See Nix, 301 Mich App at 208. Because there is
no indication that defendant was prejudiced by any arraignment error and because nothing in the
record shows that defendant was unaware of the nature of the charges against him, defendant has
failed to establish a plain error affecting his substantial rights.

                                  D. MOTION TO SUPPRESS

        Finally, defendant argues in his Standard 4 brief that the trial court erred when it declined
to conduct an evidentiary hearing on, and subsequently denied, his motion to suppress evidence
that he was carrying weapons at the time of his arrest. There is nothing in the record, however,
to support defendant’s claim that he filed such a motion—or any motion like it—in this case.
Thus, defendant has failed to meet his burden of furnishing us with a record to verify the factual
basis of his arguments, see People v Elston, 462 Mich 751, 762; 614 NW2d 595 (2000), and his
instant claim of error consequently fails.

       Affirmed.



                                                              /s/ David H. Sawyer
                                                              /s/ Joel P. Hoekstra
                                                              /s/ Kurtis T. Wilder




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