                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    March 22, 2018
                Plaintiff-Appellee,                                 9:05 a.m.

v                                                                   No. 323231
                                                                    Wayne Circuit Court
FLOYD RAY PENNINGTON,                                               LC No. 14-002915-01-FC

                Defendant-Appellant.


Before: JANSEN, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

       Defendant appeals his convictions following a bench trial of second-degree murder, MCL
750.317,1 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. Defendant was sentenced as a second-
offense habitual offender, MCL 769.11, to concurrent prison terms of 46 years and eight months
to 56 years for the second-degree murder conviction and one to five years for the felon-in-
possession conviction, to be served consecutive to a five-year term of imprisonment for the
felony-firearm conviction. For the reasons set forth in this opinion, we affirm defendant’s
convictions, but remand for resentencing before a different judge.

                                            I. FACTS

       Defendant’s convictions arose from the December 24, 2013 shooting death of the victim,
James Buckman, Jr., in the driveway of Great Lakes Power & Equipment (Great Lakes). It is
undisputed that defendant shot the victim during a verbal altercation, causing his death. A
witness, Mark Mosed, testified that at the time that the victim was shot, he saw defendant
pointing a gun out of the window of his truck. Mosed removed the gun from defendant’s hand,
but then gave the gun back to defendant, and told him to leave. Another witness, Robert Okun,
observed the escalating verbal altercation between defendant and the victim. Okun thought that
he heard defendant threaten the victim by saying, “I will kill you, if you touch my dog.” Okun
denied hearing the victim threaten defendant, but testified that he heard the victim call defendant



1
    Defendant was originally charged with open murder, MCL 750.316.


                                                -1-
a “white trash hillbilly.” Although Okun did not see defendant’s reaction to the slur, he testified
that he heard two gunshots thereafter.

        After defendant’s arrest, he gave a statement to the police claiming that he shot the victim
because the victim was coming at him with a gun. A surveillance camera located on Great
Lakes’s property captured much of the encounter, and defendant’s statement was inconsistent
with the events depicted in the video. It revealed that at the time the victim was shot, he was
standing with his arms at his side, and had nothing in his hands. At trial, defendant asserted that
the evidence established that he acted in self-defense. Alternatively, defendant argued that, at
most, he was guilty of voluntary manslaughter. The trial court rejected defendant’s self-defense
theory, and found him guilty of second-degree murder and the firearm charges.

                                            II. ANALYSIS

                       A. PRELIMINARY EXAMINATION TRANSCRIPT

       On appeal, defendant first argues that during trial, the court improperly reviewed
testimony from his preliminary examination transcript. We disagree.2

        During trial, the prosecutor attempted to impeach Mosed with inconsistent testimony he
gave at defendant’s preliminary examination with regard to the distance between defendant and
the victim before the shooting. The following exchange occurred on the record:

                The Court: Hold on. One moment.

                Mr. Anderson: Yes, Judge.

               The Court: They have this thing now where they don’t put preliminary
        exam transcripts in the file. So I don’t have preliminary exam transcripts readily
        available. I’ll get it hold on. I just have to log into the computer. So just give me
        one moment.

                                                 ***

                The Court: You may continue.

                (By Mr. Anderson):



2
  Because defendant did not object at trial to the trial court’s review of the preliminary
examination transcript, this issue is unpreserved. People v Metamora Water Serv, Inc, 276 Mich
App 376, 382; 741 NW2d 61 (2007). An unpreserved claim of error is reviewed for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130
(1999). To satisfy the plain error standard, a defendant must show (1) an error, (2) that the error
was plain, (i.e., it was clear or obvious), and (3) that the error affected his substantial rights (i.e.,
that the outcome was affected). Id.


                                                  -2-
                [Mr. Anderson]. Do you recall testifying at the preliminary examination
         that was held on April 9th, 2014?

                [Mosed]. Yes, sir.

                [Mr. Anderson]. In front of the Honorable Judge Joseph Baltimore in this
         building?

                [Mosed]. Yes, sir.

                [Mr. Anderson]. Okay, and do you recall being asked the question –

                The Court: Line, page, please.

                Mr. Slameka: Page and line, please, Judge.

                Mr. Anderson: I’m sorry. I’m on Page 23.

                Mr. Slameka: Thank you.

                Mr. Anderson: That would be Lines 14 through 16. Excuse me.

                The Court: I’m sorry? Hold on.

                (By Mr. Anderson):

                [Mr. Anderson]. I’m sorry. To set this question up, we probably have to
         go back to line 3. Do you recall being asked this question . . . .

Relying on People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971), defendant erroneously
argues that the trial court’s brief use of the preliminary examination transcript constitutes error
requiring reversal of his conviction.

         In Ramsey, the trial court, sitting as the trier of fact, reviewed the transcript of the
preliminary examination testimony of the complainant. Ramsey, 385 Mich at 223. The Supreme
Court held that this was reversible error because it violated the Confrontation Clause for the trial
court to consider testimony not admitted at trial. Id. at 225. The Court noted that MCL 768.26
bars the admission of preliminary examination testimony unless the witness cannot be produced
at trial or has become mentally incapacitated since the preliminary examination.3 Id. at 223-224.

3
    MCL 768.26 provides:
                  Testimony taken at an examination, preliminary hearing, or at a former
         trial of the case, or taken by deposition at the instance of the defendant, may be
         used by the prosecution whenever the witness giving such testimony cannot, for
         any reason, be produced at the trial, or whenever the witness has, since giving
         such testimony become insane or otherwise mentally incapacitated to testify.


                                                 -3-
In this case, however, the trial court was merely using the preliminary examination transcript to
follow along as counsel used that testimony to impeach the witness. Prior statements, including
one made at a preliminary examination, are admissible for purposes of impeachment. MRE 613.
Because the trial court only reviewed the portion of the transcript properly read into the record, it
did not consider any testimony that was not admitted at trial. Moreover, the record indicates that
the judge understood that the portion of the preliminary examination read to the witness was
admissible only for impeachment and that she was using the transcript only to assist her with
following the prosecutor’s recitation of the testimony when impeaching the witness. Unlike the
situation in Ramsey, the trial court did not consider testimony not admitted at trial and so there is
no Confrontation Clause violation.4

                        B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant argues that his convictions must be reversed because he was denied the
effective assistance of counsel. We disagree.5

        “To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy
burden to establish that (1) counsel’s performance was deficient, meaning that it fell below an
objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable
probability that the outcome of the defendant’s trial would have been different.” People v
Solloway, 316 Mich App 174, 188; 891 NW2d 255 (2016).

        Defendant first argues that trial counsel was ineffective by failing to engage in plea
negotiations. The subject of a plea agreement was briefly addressed at defendant’s arraignment
and final conference. When the court enquired as to whether plea negotiations were possible, the
prosecutor advised the court that no plea offers had been made to defendant, but that he was
available to discuss plea offers after the arraignment. Defense counsel stated that he could not
do so that day because he was in trial in another courtroom, but that he would go speak with the
prosecution about it on another day. At the Ginther6 hearing, defense counsel testified that he
approached the prosecutor “probably four or five times about a plea,” and that the prosecution
was unwilling to offer a reduced plea. The prosecutor testified that he could not recall if he ever
spoke to defense counsel about a plea bargain or if he ever told counsel that no plea offers would
be made.


4
  We reached the same conclusion in People v Walter, 41 Mich App 109; 199 NW2d 651 (1972).
Although that case is not precedentially binding under MCR 7.215(J)(1) because it was
published before November 1, 1990, we find its reasoning persuasive.
5
  “Whether a person has been denied effective assistance of counsel is a mixed question of fact
and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). “A
judge first must find the facts, and then must decide whether those facts constitute a violation of
the defendant’s constitutional right to effective assistance of counsel.” Id. We review the trial
court’s factual findings for clear error and reviews questions of law de novo. People v Lane, 308
Mich App 38, 67-68; 862 NW2d 446 (2014).
6
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                -4-
         Trial counsel further testified at the Ginther hearing that after defendant’s arrest, he
interviewed defendant five to six times while he was at the county jail. According to counsel,
during every visit, the subject of a plea was discussed, but defendant consistently indicated that
he was “never, ever interested in a plea,” and adamantly stated that he was going to trial to
pursue a self-defense theory. Although defendant denied that trial counsel discussed the
possibility of a plea, the trial court found that defendant’s testimony was not credible because he
testified that his attorney came to see him only twice, while the jail records were consistent with
counsel’s testimony that he had met with defendant on five or six occasions.

        Given this evidence, and the trial court’s credibility determination, defendant has failed to
meet his burden of establishing that trial counsel’s performance fell below an objective standard
of reasonableness.

        Further, even assuming that trial counsel unreasonably failed to initiate plea negotiations
with the prosecutor’s office, defendant has not established prejudiced. “[A]s at trial, a defendant
is entitled to the effective assistance of counsel in the plea-bargaining process.” People v
Douglas, 496 Mich 557, 591-592; 852 NW2d 587(2014). In the context of pleas, a defendant
must establish that the outcome of the plea process would have been different with competent
advice. Lafler v Cooper, 566 US 156, 163; 132 S Ct 1376; 182 L Ed 2d 398 (2012). There is no
evidence that if trial counsel had approached the prosecutor about a possible plea, a plea would
have been forthcoming. At the Ginther hearing, defendant presented the affidavit of a criminal
defense attorney with 32 years of experience, who testified that when a defendant is charged with
open murder or murder in the first degree, absent extraordinary circumstances, the standard plea
offer in Wayne County is a guilty plea to murder in the second degree. This, however, is exactly
the result defendant faced at the conclusion of the bench trial. Thus, defendant has failed to
establish that he was prejudiced by trial counsel’s alleged deficient performance.

        Defendant also argues that trial counsel was ineffective for failing to adequately inform
him about the strength of his case, the nature of the charges against him, and the consequences of
a guilty plea on the charges. He contends that as a result of these failings, he was unable to make
an informed choice about whether to proceed to trial.

        Conflicting testimony was presented at the Ginther hearing regarding the exchange of
information between defendant and his trial counsel. Trial counsel claimed that he spoke with
defendant about the legal issues in the case, the burden of proof, and the difficulty of arguing
self-defense given that the victim never produced a weapon. Trial counsel further testified that
he did explain that the trier of fact could reach a verdict of second-degree murder. Counsel
admitted that he never showed defendant the surveillance video, but asserted that he explained
the video’s content to defendant, and that defendant never asked to see it. When asked if it
would have been important for defendant to see the video, trial counsel replied, “He was there
when it happened,” and stated that defendant had told him “exactly what the video showed.”
Trial counsel agreed that defendant’s statement to the police contradicted what the surveillance
video showed, and that the false exculpatory statement was damaging. When asked if he
explained to defendant the penalties for the various charges, trial counsel testified that it was not
necessary to do so because defendant told him what the penalties were. Counsel did inform
defendant that the penalties were “pretty egregious.”


                                                 -5-
        By contrast, defendant testified that trial counsel explained that the charge was open
murder, but denied that counsel explained what the prosecutor was required to prove for a
conviction. Defendant further asserted that trial counsel never explained his chances of success
or the sentences he faced, if convicted of the charged offenses or any lesser offense. Defendant
acknowledged that it was commonly known that a first-degree-murder conviction could result in
life in prison. According to defendant, although he asked, trial counsel never showed him the
surveillance video or described its contents. He testified that he did not actually see the video
until after his conviction, and claimed that if he had seen it before the trial, he would have
insisted that defense counsel pursue plea negotiations. Defendant claimed that because trial
counsel failed to spend sufficient time with him, there was never an opportunity to request that
counsel pursue plea negotiations. As noted earlier, however, the trial court found that
defendant’s testimony was not credible.

        Accordingly, we conclude that defendant has failed to establish ineffective assistance of
counsel in this regard. Defendant’s assertion that he lacked sufficient information to make
meaningful decisions related to seeking a plea had little bearing on the outcome in light of his
consistent position that he felt threatened and had acted in self-defense. At the Ginther hearing,
by which time defendant had seen the surveillance video, defendant continued to assert that he
acted in self-defense. This testimony again bolsters trial counsel’s testimony that defendant was
unwilling to consider a plea. Further, defendant’s testimony undermines the credibility of his
assertions that had he been adequately advised by his attorney, he would have insisted that trial
counsel pursue plea negotiations. In light of defendant’s continued assertions that he was
innocent because he allegedly acted in self-defense, it is unlikely that had defendant been more
fully informed, that this would have prompted him to insist that his trial counsel initiate plea
negotiations.

        Accordingly, we are not left with a definite and firm conviction that the trial court erred
when it found that defendant failed to show prejudice stemming from trial counsel’s alleged
deficient performance.

                              C. LESSER INCLUDED OFFENSE

       Next, defendant argues that the trial court erred by failing to consider the lesser included
offense of manslaughter and convicting him instead of second-degree murder. We disagree.7

       “Manslaughter is a necessarily included lesser offense of murder.” People v Gillis, 474
Mich 105, 137; 712 NW2d 419 (2006). “[T]o show voluntary manslaughter, one must show that
defendant killed in the heat of passion, the passion was caused by adequate provocation, and
there was not a lapse of time during which a reasonable person could control his passions.”
People v Reese, 491 Mich 127, 143; 815 NW2d 85 (2012) (citation omitted).




7
 A trial court’s factual findings in a bench trial are reviewed for clear error and its conclusions
of law de novo. Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007).


                                                -6-
        The court did consider this charge, but properly rejected it because the evidence did not
show adequate provocation. “The determination of what is reasonable provocation is a question
of fact for the factfinder.” People v Pouncey, 437 Mich 382, 389; 471 NW2d 346 (1991). Here,
the confrontation was over insulting comments made by the victim against defendant, his father,
and the alleged endangerment of defendant’s dogs. Although the victim became enraged, he
maintained his distance from defendant. Further, while early on in the confrontation, the victim
might have made a slight gesture towards his concealed weapon, he never brandished it. Indeed,
the victim never removed his gun from the holster. The video evidence and eyewitness
testimony confirmed that at the time he was shot, the victim was standing with his arms at his
side, his hands empty, and the gun he carried was still holstered at his side. Under these
circumstances, the trial court did not err when it concluded that the confrontation did not rise to
the level where a reasonable person would lose control. “The provocation necessary to mitigate
a homicide from murder to manslaughter is that which causes the defendant to act out of passion
rather than reason.” Pouncey, 437 Mich at 389. Adequate provocation is that “which would
cause the reasonable person to lose control.” Id.

      Therefore, the trial court did not err when it failed to find defendant guilty of
manslaughter.

                                       D. SENTENCING

        Defendant requests that his sentence be vacated and that his case be remanded to a
different judge. He asserts that the trial court sentenced him pursuant to a blanket policy of
imposing a sentence at the top of the guidelines on defendants who exercise their right to a trial
rather than pleading guilty. Defendant did go to trial and did receive the highest sentence that
can be imposed within the guidelines.

        In People v Smith, unpublished per curiam opinion of the Court of Appeals, issued
November 22, 2016 (Docket No. 328477), we addressed this issue in regard to the same trial
judge. In that case, we admonished Judge Lillard for her practice of sentencing defendants who
proceed to trial at the top of the guidelines range. Id. at 5. In Smith, this Court found that the
trial court erred when it employed this practice because it resulted in the failure to provide the
defendant with an individualized sentence. Id. at 6. This Court noted:

                In this case, the trial court sentenced defendant pursuant to its “practice”
       of sentencing defendants “to the top of your guidelines” following a jury trial.
       According to the court, the purpose of its practice is “not to punish people for
       exercising their right to go to trial,” but to “reward [ ] people who accept—who
       accept responsibility for their behavior and plead guilty in advance of trial.” The
       distinction drawn by the trial court is unconvincing. The court’s statement that its
       practice rewards defendants who plead guilty strongly implied that those
       defendants are not as a matter of routine sentenced to the high end of their
       minimum sentence range. Thus, had defendant pleaded guilty, he would have
       received a lesser sentence. The court may not have intended to punish defendant
       for exerting his Fifth Amendment rights, but the impact is the same regardless.
       [Id. at 6.]


                                                -7-
We agree that a policy of sentencing all defendants who go to trial to the top of the guidelines is
fundamentally inconsistent with the principle of individualized sentences.

        The judge’s policy also runs afoul of the principle that “[a]court cannot base its sentence
even in part on a defendant’s refusal to admit guilt.” People v Hatchett, 477 Mich 1061; 728
NW2d 462 (2007); People v Yennior, 399 Mich 892; 282 NW2d 920 (1977). The right to trial
by jury in a criminal felony prosecution is among the most fundamental rights provided by our
judicial system. See People v Allen, 466 Mich 86, 90; 643 NW2d 227 (2002). Moreover, “[i]t is
a violation of due process to punish a person for asserting a protected statutory or constitutional
right.” People v Ryan, 451 Mich 30, 35; 545 NW2d 612 (1996).

        Our opinion in Smith was issued on November 22, 2016. The sentencing in this case
occurred on July 30, 2014, well before that date. Nearly two years later, on July 20, 2016, during
a post-trial hearing, the trial judge confirmed that this was her sentencing practice. The relevant
colloquy reads:

                 Defense counsel: As your honor knows, it’s the practice of this Court to
          sentence to the top of the guidelines after a defendant goes to trial –

                 The Court: Sometimes higher.8

        Courts, including the United States Supreme Court, have sometimes struggled to
articulate the precise line between rewarding a defendant for pleading guilty, which is routine in
plea bargains, and punishing a defendant for asserting his constitutional right to trial.9 See
United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968) (statute found
unconstitutional where trial by jury provides for a greater possible sentence than bench trial);



8
 In a post-trial hearing on February 17, 2017, several months after we released Smith, the trial
court made the following which occurred after we issued Smith, Judge Lillard stated:

                  “To the extent there is a perception in this building or maybe I have said
          something that has lead [sic] anyone to believe that after a jury trial if someone is
          found guilty they will automatically be sentence at the top of their guidelines
          that’s not true.”

The judge went on to say that “if someone is willing to accept responsibility for what they’ve
done and they plead guilty that there should be some sort of reward . . . [a]nd to the extent I am
able to do that by sentencing people at the bottom of their guidelines when there is no sentencing
agreement and they have plead guilty, I do routinely do that.”
While these remarks are reassuring, the judge’s prior remarks and actions cannot be undone after
the fact. And an improper sentencing policy can only be cured by a change in practice, not a
change of words.
9
    For a discussion of these issues, see LaFave et al, Criminal Procedure (4th ed), § 21.2(a)-(c).


                                                   -8-
Corbitt v New Jersey, 439 US 212; 99 S Ct 492; 58 L Ed 2d 466 (1978) (“a State may encourage
a guilty plea by offering substantial benefits for return for the plea.”).

         In this case, however, we need not resolve any tension between these principles. Here,
the judge’s sentencing policy was to impose the maximum guideline sentence when a defendant
was convicted after going to trial. This does not demonstrate a process where a court determines
what an individualized sentence should be and then reduces it as an inducement or reward for the
plea.10 Rather, it is an automatic imposition of the maximum guideline sentence; a policy that
ignores the requirement of individualized sentencing and promises not a degree of mercy as a
reward for a plea, but rather a harsh sentence as a punishment for seeking a trial. Thus, while an
admission of guilt may be considered as indicating remorse and may be grounds to lessen
punishment that would otherwise be imposed, there is no doubt that sentencing defendants to the
top of the guidelines because they went to trial or to increase their sentence in any way for doing
so, is a violation of both due process and our law governing sentencing.

       We affirm defendant’s convictions, vacate defendant’s sentences, and remand for
resentencing before a different judge. We do not retain jurisdiction.

                                                            /s/ Kathleen Jansen
                                                            /s/ Deborah A. Servitto
                                                            /s/ Douglas B. Shapiro




10
  In People v Godbold, 230 Mich App 508, 516; 585 NW2d 13 (1998), we held that judges may
“reduce otherwise valid sentences for defendants who opt for bench trials” rather than jury trials.
In that case, we quoted, at length, the trial judge’s description of his sentencing approach, i.e.
that he determines what he believes is the proper individualized sentence based on the offender
and the offense and then, if defendant has opted for a bench trial, provides a sentence concession.
This case is not comparable to Gobold.


                                                -9-
