            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PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 23, 2020
               Plaintiff-Appellee,

V                                                                    No. 346239
                                                                     Wayne Circuit Court
CHARLIE JAWAN JOHNSON,                                               LC No. 18-000913-01-FH

               Defendant-Appellant.


Before: METER, P.J., and BECKERING and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of two counts of breaking and
entering a building with intent to commit a felony (“breaking and entering”), MCL 750.110, two
counts of larceny in a building, MCL 750.360, malicious destruction of a building causing damage
of $1,000 or more but less than $20,000 (“malicious destruction”),1 MCL 750.380(3)(a), and
possession of burglar’s tools, MCL 750.116. The trial sentenced defendant to prison terms of 3 to
10 years for each breaking and entering conviction, two to four years for each larceny conviction,
two to five years for the malicious destruction conviction, and 3 to 10 years for the possession of
burglar’s tools conviction. We affirm.

      Defendant’s convictions arise from break-ins at two homes on Cherry Hill Street in
Dearborn Heights late on January 10, 2018, or early on January 11, 2018. One of the homes was
owned by Joseph Isgro (“the Isgro house”), and the other home was cared for by Belal Nasser (“the


1
  We note that in defendant’s supplemental brief on appeal, he stated that the prosecution reviewed
the trial court’s case file and discovered that the jury’s verdict form indicated that the jury found
defendant not guilty on count 6, a second count of malicious destruction, despite the jury’s verbal
guilty verdict at trial. We ordered that the case be remanded for resolution of this discrepancy.
People v Johnson, unpublished order of the Court of Appeals, entered April 17, 2020 (Docket No.
346239). On remand, the trial court entered a second amended judgment of sentence removing
the guilty verdict as to count 6. Because this issue has been resolved, we will not further address
defendant’s request to remand for correction of his judgment of sentence.


                                                -1-
Nasser house”). The neighborhood where the break-ins occurred had complained of larcenies and
thefts to the Dearborn Heights Police Department. Lieutenant Timothy Zawacki was on patrol in
the neighborhood around 2:40 or 2:44 a.m. when he noticed an unoccupied vehicle “parked
practically on top of a street sign.” Around 4:00 a.m., Sergeant Patrick Thomas was on patrol in
the neighborhood and noticed the same vehicle parked near the stop sign.

         While Sergeant Thomas was near the vehicle, he observed defendant walking past the
vehicle with a backpack of tools. Sergeant Thomas asked defendant where he was walking and
for defendant’s address. Defendant did not provide an address, so Sergeant Thomas radioed other
police officers because he thought defendant might run. Sergeant Thomas also asked if he could
see defendant’s backpack. Defendant obliged, and Sergeant Thomas saw about 16 tools, including
pliers, screwdrivers, a torch, and pry bars, which Sergeant Thomas knew, based on his training
and experience, were consistent with burglar’s tools.

        Once additional police officers arrived, Lieutenant Zawacki and Sergeant Thomas found
footprints leading to the Isgro house, which had been broken into. Copper plumbing had been cut,
bundled, and piled near the back door. Furnace parts were also nearby in the kitchen. Sergeant
Thomas observed footprints that appeared to match those found outside near the top of the stairs
leading to the basement, and again in the basement. Sergeant Thomas also found the same
footprint in an otherwise clean bathtub under an unlocked window.

       On January 11, 2018, around noon, Nasser discovered that the front door of the Nasser
home was unlocked, and that the copper pipes in the basement had been removed. Although there
were muddy footprints in the home when Nasser discovered the break-in, he had cleaned most of
the house because he had a home showing scheduled for that day.

       At trial, defendant was convicted of the crimes stated above, and sentenced. This appeal
follows.

                                 I. SUBSTITUTION OF COUNSEL

       Defendant first argues that when he requested substitute counsel at one of the initial
hearings in circuit court, the judge did not sufficiently address his concerns about defense counsel
and should have conducted further inquiry. We disagree.

        This Court reviews a trial court’s decision regarding substitution of counsel for an abuse
of discretion. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). “A trial court
abuses its discretion when its decision falls outside the range of reasonable and principled
outcomes.” People v Pointer-Bey, 321 Mich App 609, 615; 909 NW2d 523 (2017) (quotation
marks and citation omitted).

        “ ‘When a defendant asserts that the defendant’s assigned attorney is not adequate or
diligent, or is disinterested, the trial court should hear the defendant’s claim and, if there is a factual
dispute, take testimony and state its findings and conclusion on the record.’ ” People v Strickland,
293 Mich App 393, 397; 810 NW2d 660 (2011), quoting People v Bauder, 269 Mich App 174,
193; 712 NW2d 506 (2005), overruled in part on other grounds in People v Burns, 494 Mich 104,
112-113 (2013). Addressing the substitution of counsel, this Court has explained:



                                                   -2-
               An indigent defendant is guaranteed the right to counsel; however, he is not
       entitled to have the attorney of his choice appointed simply by requesting that the
       attorney originally appointed be replaced. Appointment of a substitute counsel is
       warranted only upon a showing of good cause and where substitution will not
       unreasonably disrupt the judicial process. [Traylor, 245 Mich App at 462.]

“Good cause may exist when ‘a legitimate difference of opinion develops between a defendant
and his appointed counsel as to a fundamental trial tactic,’ when there is a ‘destruction of
communication and a breakdown in the attorney-client relationship,’ or when counsel shows a lack
of diligence or interest.” People v McFall, 309 Mich App 377, 383; 873 NW2d 112 (2015)
(citations and footnotes omitted). Good cause is not demonstrated merely because the defendant
is generally unhappy with counsel or lacks confidence in counsel. Id. Counsel’s decisions about
defense strategy, including what witnesses to call, what evidence to present, and what arguments
to make, are matters of strategy; disagreements regarding trial strategy do not merit appointment
of substitute counsel. Strickland, 293 Mich App at 398.

        The record in this case does not show that defendant’s attorney was in fact “inattentive to
his responsibilities, inadequate, or disinterested.” People v Buie, 298 Mich App 50, 69; 825 NW2d
361 (2012) (quotation marks and citation omitted). Defendant claimed on the record that defense
counsel had failed to disprove the information in the police report. The trial court listened to
defendant’s complaint and asked follow-up questions. The court then explained that defense
counsel’s opportunity to challenge the evidence and establish reasonable doubt would come at
trial. This record demonstrates that the trial court directly addressed defendant’s concerns about
defense counsel’s diligence, which it concluded were premature. Cf. People v Wilson, 43 Mich
App 459, 462; 204 NW2d 269 (1972). Absent good cause resulting from a lack of diligence, the
trial court did not abuse its discretion by refusing defendant’s request for substitute counsel on this
basis. McFall, 309 Mich App at 383.

        In addition, and although defense counsel had already demanded further discovery from
the prosecutor, defendant requested “forensic evidence.” Again, the trial court repeatedly asked
defendant what evidence he was referencing and then, after conducting a sidebar conference with
the attorneys off the record, the trial court entered a reciprocal discovery order. This was an
appropriate response to defendant’s concerns about discovery. Defendant failed to establish good
cause for the substitution of his attorney on this basis.

       Defendant also argued that he and defense counsel lacked adequate communication. The
record demonstrates that, by the time that defendant voiced his complaints, defense counsel and
defendant had discussed issues relevant to that particular hearing, including the plea offer and
bond. Defendant’s only cited reason for the lack of communication involved a rote administrative
mechanism, not a fundamental trial tactic, and the trial court was able to convey the information
about the blind draw to defendant. Moreover, the trial court encouraged defendant to continue
communicating with defense counsel and defendant failed to raise a similar complaint about
communication with counsel during the following six months before trial began. Again, the trial
court acknowledged and addressed defendant’s concern, which did not amount to good cause.
McFall, 309 Mich App at 383. Therefore, the trial court did not abuse its discretion by refusing
defendant’s request for substitute counsel on this basis.



                                                 -3-
        Absent any good cause for substitution of counsel, defendant’s argument that substitution
would not have unreasonably disrupted the judicial process at that early stage of the proceedings
is unpersuasive. Again, an indigent defendant is not entitled to have the attorney of his choice
appointed simply by requesting that the attorney originally appointed be replaced. “Appointment
of a substitute counsel is warranted only upon a showing of good cause and where substitution will
not unreasonably disrupt the judicial process.” Traylor, 245 Mich App at 462 (emphasis added).

                         II. EFFECTIVE ASSISTANCE OF COUNSEL

        Next, defendant raises three claims charging that defense counsel was ineffective.
Defendant did not raise these claims in the trial court and this Court denied defendant’s motion to
remand for a Ginther2 hearing. People v Johnson, unpublished order of the Court of Appeals,
entered September 26, 2019 (Docket No. 346239). Therefore, review of defendant’s claims of
ineffective assistance of counsel is limited to errors apparent from the record. People v Matuszak,
263 Mich App 42, 48; 687 NW2d 342 (2004); People v Wilson, 242 Mich App 350, 352; 619
NW2d 413 (2000).

        The United States and Michigan Constitutions guarantee a defendant the right to the
effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. We review de novo
the constitutional question whether defendant was deprived of his right to the effective assistance
of counsel. People v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). To establish
ineffective assistance of counsel, defendant must show: (1) that counsel’s performance was below
an objective standard of reasonableness under prevailing professional norms, and (2) that there is
a reasonable probability that, but for counsel’s deficient performance, the result of the proceedings
would have been different. Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L
Ed 2d 674 (1984); People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). A “reasonable
probability” is a probability sufficient to undermine confidence in the outcome. Strickland, 466
US at 694.

                                             A. PLEA

       Defendant argues that defense counsel was ineffective by failing to adequately advise him
to enable him to make an informed and voluntary choice between trial and a guilty plea. He asserts
in a self-serving affidavit submitted on appeal that if defense counsel had provided further
information about the sentencing consequences of going to trial, he would have accepted the plea
offer. We disagree.

        While a defendant does not have the right to receive a plea offer from the prosecution,
Lafler v Cooper, 566 US 156, 168; 132 S Ct 1376; 182 L Ed 2d 398 (2012), “as a general rule,
defense counsel has the duty to communicate formal offers from the prosecution to accept a plea
on terms and conditions that may be favorable to the accused,” Missouri v Frye, 566 US 134, 145;
132 S Ct 1399; 182 L Ed 2d 379 (2012). “The decision to plead guilty is the defendant’s, to be
made after consultation with counsel and after counsel has explained the matter to the extent
reasonably necessary to permit the client to make an informed decision.” People v Corteway, 212


2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -4-
Mich App 442, 446; 538 NW2d 60 (1995). Trial counsel is not required to recommend whether
to accept a plea offer; instead, “[t]he test is whether the attorney’s assistance enabled the defendant
to make an informed and voluntary choice between trial and a guilty plea.” Id.

               To show prejudice from ineffective assistance of counsel where a plea offer
       has lapsed or been rejected because of counsel’s deficient performance, defendants
       must demonstrate a reasonable probability they would have accepted the earlier
       plea offer had they been afforded effective assistance of counsel. Defendants must
       also demonstrate a reasonable probability the plea would have been entered without
       the prosecution canceling it or the trial court refusing to accept it, if they had the
       authority to exercise that discretion under state law. To establish prejudice in this
       instance, it is necessary to show a reasonable probability that the end result of the
       criminal process would have been more favorable by reason of a plea to a lesser
       charge or a sentence of less prison time. [Frye, 566 US at 147.]

        Defendant claims that defense counsel was deficient because defendant did not understand
that he could face a prison sentence if convicted at trial. The record does not support this claim.
It was clear from the felony complaint that defendant’s maximum penalty for the various charged
crimes ranged from 4 to 15 years in prison. In addition, during pretrial discussions on the record,
the trial court advised defendant that, even under the proposed plea agreement, his minimum
sentencing guidelines range included up to 17 months’ incarceration. The trial court also advised
defendant that if he was convicted at a jury trial, his sentence could be “more severe.”

         Defendant also claims that he was unaware that the trial court could exceed the sentencing
guidelines range. Again, the record establishes otherwise. Defense counsel clearly stated on the
record that the guidelines were only “advisory,” which indicated that they served as a
recommendation, but were not mandatory. The trial court advised defendant that, for purposes of
the plea, his sentencing guidelines range was 0 to 17 months. The court also stated that it was
inclined to sentence him to 120 days in jail with a period of probation, but it warned him that after
a trial, “the sentencing consequences could be more severe.” On this record, defendant cannot
establish that he was not able to make an informed and voluntary choice between trial and a guilty
plea.

        Furthermore, defendant cannot establish the requisite prejudice. In an affidavit supporting
his motion to remand, defendant asserts that he would never have rejected the plea offer if he knew
that he could face 3 to 10 years in prison. But defendant’s self-serving affidavit is not part of the
lower court record and cannot be considered on appeal. People v Williams, 241 Mich App 519,
524 n 1; 616 NW2d 710 (2000) (providing that parties may not expand the lower court record by
attaching affidavits to their briefs on appeal). In any event, the record demonstrates that defendant
consistently maintained his innocence throughout the proceedings. After the proposed plea was
placed on the record, defense counsel asserted that defendant wanted to proceed to trial. When the
trial court then informed defendant of the potential for a more severe sentence if he “roll[ed] the
dice” and went to trial, defendant asserted that he “wasn’t there,” so there could be no evidence
against him. The court asked defendant, “You weren’t there at all?” Defendant replied, “I wasn’t.”
Then, the trial court stated, “Well, all right, then, I guess there’s no point in talking to you about a
plea. All right.” At sentencing, defendant continued to maintain his innocence. Although
defendant initially offered an apology to the parties and to his family for his actions, he later


                                                  -5-
claimed that he “didn’t do it” and that his fingerprints were nowhere in the homes at issue. On
this record, defendant cannot establish that there is a reasonable probability that he would have
accepted the guilty plea and therefore enjoyed a shorter sentence. Cf. Lafler, 566 US 174.
Defendant was not denied the effective assistance of counsel on this basis.

                                   B. MOTION TO SUPPRESS

        Defendant argues that defense counsel was ineffective by failing to file a motion to
suppress the evidence resulting from various stages of Sergeant Thomas’s interaction with
defendant and the ensuing investigation, which defendant alleges were unconstitutional. These
stages include: (1) pulling up to defendant in a patrol car and asking where he was headed, (2)
radioing other officers from the patrol car to inform them who he was with, (3) asking defendant
what was in his backpack and if he could look inside, and (4) detaining defendant in the patrol car.
We conclude that defense counsel’s performance did not fall below an objective standard of
reasonableness.

        The Fourth Amendment of the United States Constitution and its counterpart in the
Michigan Constitution guarantee the right of persons to be secure against unreasonable searches
and seizures. US Const, Am IV; Const 1963, art 1, § 11. “Searches and seizures conducted without
a warrant are unreasonable per se, subject to several specifically established and well-delineated
exceptions.” People v Borchard-Ruhland, 460 Mich 278, 294; 597 NW2d 1 (1999). “Generally,
evidence obtained in violation of the Fourth Amendment is inadmissible as substantive evidence
in criminal proceedings.” People v Kazmierczak, 461 Mich 411, 417-418; 605 NW2d 667 (2000).

       In People v Jenkins, 472 Mich 26, 32; 691 NW2d 759 (2005), our Supreme Court discussed
one exception to the warrant requirement, a Terry3 stop:

                 Under certain circumstances, a police officer may approach and temporarily
         detain a person for the purpose of investigating possible criminal behavior even
         though there is no probable cause to support an arrest. A brief detention does not
         violate the Fourth Amendment if the officer has a reasonably articulable suspicion
         that criminal activity is afoot. Whether an officer has a reasonable suspicion to
         make such an investigatory stop is determined case by case, on the basis of an
         analysis of the totality of the facts and circumstances. A determination regarding
         whether a reasonable suspicion exists must be based on commonsense judgments
         and inferences about human behavior. [Quotation marks and citations omitted.]

To evaluate whether an officer has reasonable suspicion to make an investigatory stop, the “totality
of the facts and circumstances” is considered on a case-by-case basis. People v Horton, 283 Mich
App 105, 109; 767 NW2d 672 (2009).

        The Court in Jenkins contrasted a Terry stop with a consensual encounter, which is not a
seizure:



3
    Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).


                                                -6-
               Of course, not every encounter between a police officer and a citizen
       requires this level of constitutional justification. A “seizure” within the meaning
       of the Fourth Amendment occurs only if, in view of all the circumstances, a
       reasonable person would have believed that he was not free to leave. When an
       officer approaches a person and seeks voluntary cooperation through noncoercive
       questioning, there is no restraint on that person’s liberty, and the person is not
       seized. [Jenkins, 472 Mich at 32 (citations omitted).]

Consent must be freely and voluntarily given, and “[t]he presence of coercion or duress normally
militates against a finding of voluntariness.” Borchard-Ruhland, 460 Mich at 294. “The reason
that officers may freely approach citizens on the street without implicating the Fourth Amendment
is because ‘[t]he purpose of the Fourth Amendment is not to eliminate all contact between the
police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement
officials with the privacy and personal security of individuals.’ ” People v Anthony, 327 Mich
App 24, 32-33; 932 NW2d 202 (2019), quoting United States v Mendenhall, 446 US 544, 553-
554; 100 S Ct 1870; 64 L Ed 2d 497 (1980) (quotation marks and citation omitted).

       In People v Sinistaj, 184 Mich App 191, 196; 457 NW2d 36 (1990), this Court, quoting
Mendenhall, 446 US at 554, cited examples that the United States Supreme Court had offered of
circumstances that might constitute a seizure, even where the person made no attempt to leave: “
‘[T]he threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.’ ”

        Defendant argues that defense counsel should have moved to suppress the evidence based
on Sergeant Thomas’s initial questioning on the street, when Sergeant Thomas, who was in his
patrol car, asked defendant, who was on foot, where he was heading. We disagree. Defendant
voluntarily responded that he lived “up the street.” This questioning did not constitute a seizure.
Jenkins, 472 Mich at 32 (“A police officer’s brief and noncoercive questioning, or mere request
for identification, does not constitute a seizure of the person asked.”). There is no evidence of
coercion or duress. Because any motion to suppress on this basis would have been futile, defense
counsel was not ineffective on this basis. People v Ericksen, 288 Mich App 192, 201; 793 NW2d
120 (2010) (“Failing to advance a meritless argument or raise a futile objection does not constitute
ineffective assistance of counsel.”).

        Defendant next argues that defense counsel should have moved to suppress the evidence
on the basis of Sergeant Thomas’s subsequent call to other units, informing them who he was with.
We disagree. The record demonstrates that Sergeant Thomas was inside his patrol car when he
made the call and defendant was outside on the street. It is unclear from the record if defendant
even heard the call. In any event, Sergeant Thomas was not interacting with defendant at that
moment.4 No objective facts suggest that a reasonable person would believe he was not free to


4
  Sergeant Thomas’s subjective motivation—that he thought defendant might run—is not relevant
to the Fourth Amendment analysis. Anthony, 327 Mich App at 41 n 7. The objective test is
whether an officer’s words and actions would have conveyed to a reasonable person that he was
being ordered to restrict his movement. Id.


                                                -7-
leave or that his egress was blocked in any way. See Anthony, 327 Mich App at 39-40. The record
merely establishes that defendant did not walk or run away. Instead, he stood by what the police
later learned was his car. Because this challenged portion of the facts does not implicate the Fourth
Amendment or even an encounter between the police and defendant—as opposed to an encounter
between the police on the radio—a motion to suppress predicated on this encounter would have
been futile. Defense counsel was not ineffective on this basis. Ericksen, 288 Mich App at 201.

        Defendant also argues that defense counsel should have filed a motion to suppress the
evidence on the basis of Sergeant Thomas’s subsequent observations involving defendant’s
backpack. We disagree. When Sergeant Thomas saw defendant’s backpack with a pry bar sticking
out of it, he asked defendant what was inside and if he could see it. Defendant handed it over.
Again, there is no evidence of force or coercion. Defendant cooperated with Sergeant Thomas
when asked about the backpack. Therefore, this encounter was consensual. Defense counsel was
not ineffective for failing to file a motion to suppress regarding a consensual encounter. Id.

         Defendant’s last claim is that defense counsel should have filed a motion to suppress the
evidence because Sergeant Thomas lacked reasonable suspicion to detain defendant in the patrol
car. We disagree. Defendant was in a neighborhood with a high burglary rate in the middle of the
night and he was not only carrying a pry bar, but other tools that two officers testified were known
to be burglary tools. Further, defendant initially claimed that he lived in the area, but he then
changed his answer to say that he was there to meet a girl. The change of story and the fact that
defendant was carrying a bag of tools at night to meet a girl further peaked the officers’ suspicions.
In addition, although defendant claimed to have communicated with the girl on his cellular
telephone and offered the telephone to the police, there was no evidence of related calls or text
messages. Instead, defendant had photographs of an air-conditioning unit and a furnace on his
telephone. Also, during this interaction, defendant appeared to be nervous. While some of these
facts are admittedly capable of an innocent explanation, the totality of these factors, including the
observation that defendant was carrying a bag containing common burglar’s tools, created
particularized suspicion that defendant was involved in criminal activity—namely, possession of
burglar’s tools. People v Steele, 292 Mich App 308, 315; 806 NW2d 753 (2011) (“[D]eference
should be given to the experience of law enforcement officers and their assessments of criminal
modes and patterns.”) (citations omitted). Defense counsel was not ineffective for failing to make
a futile motion to suppress the evidence resulting from this constitutional seizure. Ericksen, 288
Mich App at 201.

          C. DETECTIVE’S CREDIBILITY ASSESSMENT DURING INTERVIEW

        Defendant argues that defense counsel was ineffective for failing to object to Detective
Sergeant Nicholas Hutchens’s testimony about inconsistencies in defendant’s statements during
his interview. We disagree.

       MRE 701 provides:

               If the witness is not testifying as an expert, the witness’ testimony in the
       form of opinions or inferences is limited to those opinions or inferences which are
       (a) rationally based on the perception of the witness and (b) helpful to a clear
       understanding of the witness’ testimony or the determination of a fact in issue.


                                                 -8-
“Testimony in the form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.” MRE 704.

      By contrast, in People v Musser, 494 Mich 337, 349; 835 NW2d 319, 327 (2013), our
Supreme Court explained:

       Because it is the province of the jury to determine whether “a particular witness
       spoke the truth or fabricated a cock-and-bull story,” it is improper for a witness or
       an expert to comment or provide an opinion on the credibility of another person
       while testifying at trial. Such comments have no probative value, because “they do
       nothing to assist the jury in assessing witness credibility in its fact-finding mission
       and in determining the ultimate issue of guilt or innocence.” [Citations omitted.]

         Contrary to defendant’s assertion, Detective Hutchens did not comment on the credibility
of a witness who testified at trial. Rather, he was testifying about inconsistencies revealed during
his interview with defendant. Detective Hutchens’s opinion—that, during the interview, defendant
lied about the tools and when he arrived in the neighborhood—was rationally based on his
perception of the interview and the ongoing investigation. Defendant claimed to be in the
neighborhood to meet a girl, but he had no explanation for bringing a bag full of tools with him to
meet the girl other than that he carried them everywhere. Although defendant claimed that he
arrived in the neighborhood around 3:30 a.m., Detective Hutchens knew from LEIN records that
Lieutenant Zawacki had seen his car there at 2:44 a.m. Detective Hutchens’s opinion was helpful
to the jury because, as the detective testified, it explained why he ended the interview prematurely
and it explained his perspective as he continued the investigation. Because the detective’s
testimony was not improper, defense counsel was not ineffective for failing to object. Ericksen,
288 Mich App at 201.

        Defendant also cannot establish that he was prejudiced by Detective Hutchens’s testimony
that defendant told “a couple lies” during the interview. The jury could have reached the same
conclusion from other evidence in the record. And, even excluding this testimony, there was
nevertheless overwhelming evidence supporting defendant’s guilt, including the facts that he
possessed a glove that was similar to the glove print left on the point of entry at the Isgro house
break-in, he carried Joseph Isgro’s tools and lockbox in his backpack, defendant’s boot prints
matched those found in the houses of both break-ins, a lockbox from another attempted home
invasion was found inside Isgro’s house, defendant had pictures of an air conditioner and furnace
on his phone and both types of equipment had been disturbed in this case, and defendant told
Detective Hutchens that the Isgro house was unoccupied even though he had no basis for knowing
that information without having been there. Defendant cannot establish that he was denied the
effective assistance of counsel when defense counsel failed to object to Detective Hutchens’s
testimony.

                                    D. GINTHER HEARING

       Defendant urges this Court to remand for a Ginther hearing. Again, this Court previously
denied defendant’s motion to remand. People v Johnson, unpublished order of the Court of
Appeals, entered September 26, 2019 (Docket No. 346239). Remand is unnecessary when the
defendant has not demonstrated that the development of additional facts would aid his argument.


                                                -9-
People v Chapo, 283 Mich App 360, 369; 770 NW2d 68 (2009). Defendant’s claims of innocence
below contradict his retrospective, self-serving, and out-of-record claims on appeal that he would
have accepted a guilty plea. Moreover, defendant’s arguments—about the failure to file a motion
to suppress and the failure to object to Detective Hutchens’s testimony—are matters of record for
which no further factual development is necessary. Therefore, remand for a Ginther hearing is
unwarranted.

                                  III. DEPARTURE SENTENCE

       Defendant argues that the trial court abused its discretion by departing from the sentencing
guidelines range of 0 to 17 months and imposing a sentence of 3 to 10 years’ imprisonment. We
disagree.

         “A sentence that departs from the applicable guidelines range will be reviewed by an
appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). When reviewing a departure sentence for reasonableness, this Court must review “whether
the trial court abused its discretion by violating the principle of proportionality set forth in People
v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990) [overruled by statute as recognized in People
v Armisted, 295 Mich App 32, 51; 811 NW2d 47 (2011)] , which requires sentences imposed by
the trial court to be proportionate to the seriousness of the circumstances surrounding the offense
and the offender.” People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017) (quotation
marks omitted). Factual findings related to a departure sentence must be supported by a
preponderance of the evidence and are reviewed for clear error. People v Lawhorn, 320 Mich App
194, 208-209; 907 NW2d 832 (2017).

        In Steanhouse, our Supreme Court explained that the principle of proportionality is one in
which

        “a judge helps to fulfill to overall scheme of criminal punishment by taking care to
        assure that the sentences imposed across the discretionary range are proportionate
        to the seriousness of the matters that come before the court for sentencing. In
        making this assessment, the judge, of course, must take into account the nature of
        the offense and the background of the offender.” [Steanhouse, 500 Mich at 472,
        quoting Milbourn, 435 Mich at 651.]

In discussing the relationship between the principle of proportionality and the sentencing
guidelines, the Court observed that “ ‘the key test is whether the sentence is proportionate to the
seriousness of the matter, not whether it departs from or adheres to the guidelines’ recommended
range.’ ” Steanhouse, 500 Mich at 472, 475, quoting Milbourn, 435 Mich at 661. In Milbourn,
435 Mich at 660, the Court explained that “[e]ven where some departure appears to be appropriate,
the extent of the departure (rather than the fact of the departure itself) may embody a violation of
the principle of proportionality.”

        Factors that may be considered by a trial court under the proportionality standard include,
but are not limited to:

        (1) the seriousness of the offense; (2) factors that were inadequately considered by
        the guidelines; and (3) factors not considered by the guidelines, such as the


                                                 -10-
       relationship between the victim and the aggressor, the defendant’s misconduct
       while in custody, the defendant’s expressions of remorse, and the defendant’s
       potential for rehabilitation. [People v Walden, 319 Mich App 344, 352-353; 901
       NW2d 142 (2017) (citations omitted).]

“The trial court appropriately exercises the discretion left to it by the Legislature not by applying
its own philosophy of sentencing, but by determining where, on the continuum from the least to
the most serious situations, an individual case falls and by sentencing the offender in accordance
with this determination.” Milbourn, 435 Mich at 653-654.

        Defendant claims that his potential for rehabilitation is high because this was a nonviolent
offense, the convictions were his first felonies, and he has the support of his family. The trial court
found differently that defendant’s potential for rehabilitation was problematic. Indeed, the court
found that defendant was enabled by his family, which made it unlikely that he would age out of
these criminal behaviors. Moreover, based on defendant’s behavior during trial (including lying
about arriving late and implicating defense counsel in the lie), the court questioned whether
defendant’s tendency for dishonesty could be resolved. After defendant’s frequent, disrespectful
interruptions and outbursts throughout trial, the court characterized defendant as defiant. These
findings about defendant’s character, which related to his potential for rehabilitation, are supported
by the record, and therefore, are not clearly erroneous. Lawhorn, 320 Mich App at 208-209.

         Defendant challenges the accuracy of the trial court’s statement that “prison hasn’t done
you much good in the past.” According to defendant’s presentence investigation report (PSIR),
he had not served a prison sentence before. But defendant had previously received a probationary
sentence with a 40-day jail term for two retail fraud convictions, and nevertheless subsequently
committed a controlled-substance offense for which he was again given probation, which he
violated four times. Although defendant’s prior record variable scores account for his previous
misdemeanors, they did not reflect his lack of compliance with sentencing terms. Regardless of
the trial court’s mistaken statement that he served time in prison, the trial court did not clearly err
by concluding that defendant’s past sentences had not been productive and demonstrated his low
potential for rehabilitation. Lawhorn, 320 Mich App at 208-209.

        Defendant also claims that he was remorseful. Although he had made an apology before
sentencing, when the court later began to impose his sentence, he again denied his actions. A
defendant’s lack of remorse is an appropriate factor to consider in determining a proportionate
sentence. Walden, 319 Mich App at 352-353. The trial court did not clearly err by concluding
that defendant had not shown remorse. Lawhorn, 320 Mich App at 208-209.

       Defendant also claims that his dishonesty to the court and his entanglements with deputies
during trial was irrelevant to the sentencing process. We again disagree. Courts are expressly
permitted to consider misconduct while in custody. Id.

       Defendant attempts to discount the court’s consideration of the seriousness of the offense.
The scoring of defendant’s offense variables—specifically OV 16—arguably accounted for the
value of the property obtained, damaged, lost, or destroyed. But the facts also established
unquantified effects of defendant’s crimes, including fear by one homeowner that defendant’s
burglary would impede the sale of his home. In addition, the court characterized defendant’s


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crimes as more serious because he had not simply chosen homes at random, but had targeted homes
in the neighborhood that were for sale and more vulnerable because they were unoccupied. The
trial court’s finding that defendant’s offenses were more serious than a typical breaking and
entering offense is not clearly erroneous.

        Defendant pleaded with the court for leniency at sentencing because he has two children.
But according to the PSIR, he does not have custody of the children and he did not even have
contact information for the children’s mother. Defendant claims that the trial court’s statement
that his children would be “better off without” him suggested that the trial court departed from the
guidelines because it did not like him. But regardless of whether the trial court found defendant
likable, the evidence of defendant’s at-risk potential for rehabilitation, defendant’s lack of true
remorse, defendant’s behavior while in custody, and the seriousness of the offenses demonstrate
that the court’s departure from the guidelines range was not outside the principled range of
outcomes.

                        IV. SPECIAL ALTERNATIVE INCARCERATION

       Defendant argues that the trial court erred by denying his motion to correct an invalid
sentence. Defendant argued that his sentence was invalid because the court refused to permit
defendant’s consideration for special alternative incarceration (SAI) as an alternative to
defendant’s prison sentence. We disagree.

       The application of facts to the law is a question of statutory interpretation, which this Court
reviews de novo. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

        MCR 6.429(A) states, in relevant part: “The court may correct an invalid sentence, on its
own initiative after giving the parties an opportunity to be heard, or on motion by either party. But
the court may not modify a valid sentence after it has been imposed except as provided by law.”
“[T]he trial court lacks authority to set aside a valid sentence once the defendant begins serving
it.” People v Wybrecht, 222 Mich App 160, 166; 564 NW2d 903 (1997). “[A]bsent a tangible
legal or procedural error that makes a sentence invalid, the trial court cannot alter a sentence that
a defendant has begun to serve.” Id. at 167.

        At a hearing on defendant’s motion to correct his invalid sentence, the trial court indicated
that it had intentionally prohibited SAI participation when it entered defendant’s judgment of
sentence. MCL 791.234a(4) specifically authorizes the court to either prohibit or permit a
prisoner’s participation in SAI.5 Therefore, the inclusion of the provision prohibiting defendant’s



5
    MCL 791.234a(4) states, in pertinent part:
                 If the sentencing judge prohibited a prisoner’s participation in the special
         alternative incarceration program in the judgment of sentence, that prisoner shall
         not be placed in a special alternative incarceration unit. If the sentencing judge
         permitted the prisoner’s participation in the special alternative incarceration
         program in the judgment of sentence, that prisoner may be placed in a special



                                                 -12-
SAI participation did not render his sentences invalid. Accordingly, the trial court did not err by
denying the portion of the motion related to SAI. Wybrecht, 222 Mich App at 166.

       Defendant argues that the SAI program was designed to address the very character
problems that the PSIR and trial court found that he possesses, such as a lack of self-discipline and
defiance. Defendant notes that the “military discipline portion of the program is designed to break
down streetwise attitudes, so staff can teach positive values and attitudes.” The trial court
explained that it did not consider the SAI program as a viable option for defendant because the
program had deteriorated and was not achieving these goals. Defendant argues that a court cannot
prohibit this alternative to a prison sentence merely because it does not like the program. But MCL
791.234a(4) specifically authorizes the court to either prohibit or permit a prisoner’s participation
in SAI, and the plain language of the statute does not limit the grounds for which a court may
prohibit participation. People v Lewis, 503 Mich 162, 165; 926 NW2d 796 (2018) (“[A] court
may read nothing into an unambiguous statute that is not within the manifest intent of the
Legislature as derived from the words of the statute itself.”) (quotation marks and citations
omitted). The trial court did not err by determining that the SAI program would not be an effective
program for defendant.

       Affirmed.



                                                              /s/ Patrick M. Meter
                                                              /s/ Jane M. Beckering
                                                              /s/ Colleen A. O’Brien




       alternative incarceration unit if the department determines that the prisoner also
       meets the requirements of subsections (2) and (3).


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