                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 29, 2015
                Plaintiff-Appellee,

v                                                                   No. 321653
                                                                    Wayne Circuit Court
MARCUS ANTHONY LANGSTON,                                            LC No. 14-000329-FH

                Defendant-Appellant.


Before: K. F. KELLY, P.J., and CAVANAGH and SAAD, JJ.

PER CURIAM.

     Defendant appeals his jury trial convictions for violation of MCL 333.7401(2)(d)(iii),
MCL 750.224f, and MCL 750.227b. For the reasons stated below, we affirm.

                           I. FACTS AND PROCEDURAL HISTORY

        The Detroit Police arrested defendant during a raid on a drug house, which contained
large amounts of marijuana prepared for distribution, a gun, and cash. The prosecution charged
defendant with: (1) possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii); (2)
felon in possession, MCL 750.224f; and (3) felony firearm, MCL 750.227b. At a pretrial
hearing, the prosecutor stated she had offered to dismiss the marijuana and felony firearm
charges if defendant pleaded guilty to the charge for felon in possession. Defendant, in court
before the trial judge, flatly refused to accept the offer.

        The jury convicted defendant of all charges. Defendant, without first petitioning the trial
court, then asked our Court to remand for a Ginther1 hearing to develop the record on whether he
received ineffective assistance of counsel, which our Court rejected.2 On appeal, defendant
again says he received ineffective assistance of counsel because his attorney did not provide
reasonable advice on whether to accept the plea bargain prior to trial.



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
  People v Langston, unpublished order of the Court of Appeals, entered December 4, 2014
(Docket No. 321653).


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                                 II. STANDARD OF REVIEW

        Because defendant failed to move for a new trial or evidentiary hearing in the trial court,
the issue of whether he received ineffective assistance of counsel is not preserved. People v
Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). When an issue of ineffective assistance
of counsel has not been properly preserved, review is limited to mistakes apparent on the record.
Id. Whether a person has been denied effective assistance of counsel is a mixed question of law
and fact. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). “A trial court’s
findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate
constitutional issue arising from an ineffective assistance of counsel claim de novo.” Petri, 279
Mich App at 410.

                                         III. ANALYSIS

        Like any other defendant who claims ineffective assistance of counsel, a defendant who
asserts his attorney gave him ineffective assistance during the plea bargaining process must show
“(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.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587
(2014). The decision whether to plead guilty belongs to the defendant, but should “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 Mich App
442, 446; 538 NW2d 60 (1995). Effective assistance of counsel is presumed, and the defendant
bears the heavy burden of proving otherwise. People v Seals, 285 Mich App 1, 17; 776 NW2d
314 (2009).

       At the outset, we must note that defendant cites no record evidence in support of his
claim for ineffective assistance of counsel. For this reason alone, his appeal must be rejected,
because our review of his claim is limited to evidence contained in the record. Petri, 279 Mich
App at 410.

        In any event, the non-record affidavits defendant has submitted on appeal contain no
evidence that his trial attorney’s advice regarding the plea bargain was unreasonable. The
affidavits detail how defense counsel told defendant he believed the prosecution’s gun charges
lacked strength. This was a reasonable position in light of the fact that defendant did not: (1)
have actual possession of a firearm; (2) the police did not check the firearm for fingerprints; and
(3) a single officer found and testified about the gun. Douglas, 496 Mich at 592. The affidavits
further indicate that defendant’s attorney told him of the terms of the plea bargain, which
defendant, on his own initiative, chose to reject. Corteway, 212 Mich App at 446. The fact that
defendant now prefers the terms of the plea bargain over his current sentence does not make his
counsel’s assistance ineffective.

       Were we nonetheless to assume that defendant’s counsel gave him unreasonable advice,
defendant has failed to show that the outcome of his trial would have been different, but for the
unreasonable advice. Specifically, defendant does not demonstrate that “the plea offer would
have been presented to the court[,] . . . 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

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the judgment and sentence that in fact were imposed.” Lafler v Cooper, 566 US ___, ___; 132 S
Ct 1376, 1385; 182 L Ed 2d 398 (2012). Accordingly, defendant’s appeal has no merit
whatsoever.

       Affirmed.



                                                         /s/ Kirsten Frank Kelly
                                                         /s/ Mark J. Cavanagh
                                                         /s/ Henry William Saad




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