                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 18, 2015
               Plaintiff-Appellee,

v                                                                    No. 318609
                                                                     Jackson Circuit Court
HENRY LEE WILLIAMS, JR.,                                             LC No. 13-004291-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

       Defendant, Henry Lee Williams, Jr., appeals as of right his jury trial convictions and
sentences as a second-offense habitual offender, MCL 769.10(1)(a), for armed robbery, MCL
750.529, and unlawful imprisonment, MCL 750.349b(1)(a). We affirm defendant’s convictions,
but vacate his armed robbery sentence and remand for resentencing.

         Defendant and Theodore Taylor robbed the victim of his cellular telephone and money.
Defendant placed an arm around the victim’s neck and pressed a handgun (later found to be a BB
gun) against his neck during the robbery. Taylor pled guilty to larceny from a person and
testified against defendant at trial.

        On appeal, defendant first challenges the trial court’s denial of his motion for a new trial
based on the claim that his trial counsel was ineffective for failing to call three witnesses to
testify on his behalf. We review a trial court’s decision to grant or deny a motion for new trial
for an abuse of discretion, which occurs when the trial court renders a decision “falling outside
the range of principled decisions.” People v Rao, 491 Mich 271, 279; 815 NW2d 105 (2012).
Ineffective assistance of counsel is a mixed question of law and fact. Strickland v Washington,
466 US 668, 698; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In considering a claim of ineffective
assistance, we review the lower court’s factual findings for clear error, if any, and review its
ultimate application of law de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). To establish ineffective assistance, defendant must show that his counsel’s performance
“fell below an objective standard of reasonableness,” which could not be justified by sound trial
strategy, and that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 US at 688-689, 694.
Defense counsel’s failure to call a witness “only constitutes ineffective assistance of counsel if it



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deprives the defendant of a substantial defense.” People v Russell, 297 Mich App 707, 716; 825
NW2d 623 (2012).

        The majority of the testimony that the three witnesses offered in their affidavits and at the
Ginther1 hearing constituted hearsay, which would have been inadmissible at trial. See MRE
801(c); MRE 802. Defense counsel was not deficient for failing to try to admit inadmissible
testimony from these witnesses. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010). With respect to two of the potential witnesses, Delisa Torrey and Nicole Williams, the
portions of their testimony that would have been admissible were cumulative to testimony of
other witnesses at trial, and in no way assisted the defense. Thus, defense counsel’s failure to
present this cumulative testimony did not constitute ineffective assistance. People v Carbin, 463
Mich 590, 603; 623 NW2d 884 (2001) (failure to present cumulative testimony only amounts to
ineffective assistance in some circumstances, such as failing to call multiple witnesses able to
corroborate a substantial defense). Regarding the third proffered witness, Torres Price, defense
counsel testified that defendant did not indicate that Price would have testified that a drug deal—
but no robbery—took place. Moreover, defendant told defense counsel that Price would be
difficult to find, and would not likely come forward, because his presence during the incident
might put him at risk for prosecution. Thus, although Price’s testimony that there was no
robbery may have been helpful to defendant, defense counsel was unaware of its value at the
time of trial and had good reason not to pursue Price as a witness. We “will not . . . assess
counsel’s competence with the benefit of hindsight.” People v Rockey, 237 Mich App 74, 76-77;
601 NW2d 887 (1999). Defendant did not demonstrate that defense counsel was ineffective for
failing to call the three potential witnesses. And, the trial court did not abuse its discretion in
denying defendant a new trial on this basis. Strickland, 466 US at 688-689.

        Defendant also asserts that the trial court imposed an illegal sentence for unlawful
imprisonment per MCL 769.34(2)(b), which prohibits a minimum sentence “that exceeds 2/3 of
the statutory maximum sentence.” We review for an abuse of discretion. People v Underwood,
278 Mich App 334, 337; 750 NW2d 612 (2008). Defendant’s challenge stems from his
erroneous assertion that he received a maximum sentence of 22 years for unlawful imprisonment,
when he was in fact sentenced to 15 to 22-1/2 years’ imprisonment. The maximum sentence for
unlawful imprisonment is 15 years. MCL 750.349b(2). MCL 769.10(1)(a), the second-offense
habitual offender statute according to which defendant was sentenced, permits a sentence no
more than “1-1/2 times the longest term prescribed for a first conviction” of the underlying
offense. Defendant’s maximum sentence of 22-1/2 years was precisely 1-1/2 times 15 years, and
was the statutory maximum sentence for armed robbery as a second-offense habitual offender.
Two-thirds of the statutory maximum sentence of 22-1/2 years is 15 years, which is defendant’s
minimum sentence. Accordingly, defendant’s minimum sentence of 15 years does not violate
the “two-thirds rule” of MCL 769.34(2)(b). The trial court did not abuse its discretion. Id.

       Defendant next challenges the sufficiency of the evidence for his unlawful imprisonment
conviction. Defendant alleges that the prosecution failed to establish that the victim was



1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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“restrained” within the meaning of MCL 750.349b. We review the record de novo, determining
whether the evidence, viewed in a light most favorable to the prosecution, would warrant a
rational juror’s finding that the essential elements of the crime were proven beyond a reasonable
doubt. People v Johnson, 460 Mich 720, 722-723; 597 NW2d 73 (1999). MCL 750.349b(3)(a)
defines “restrain” as “to forcibly restrict a person’s movements or to forcibly confine the person
so as to interfere with that person’s liberty without that person's consent or without lawful
authority” and provides that “[t]he restraint does not have to exist for any particular length of
time and may be related or incidental to the commission of other criminal acts.” The evidence
established that defendant put his arm around the victim’s neck, then placed what the victim
believed to be a handgun against the left side of his neck. The victim testified that he wanted to
leave but did not feel that he was able to do so. Defendant’s actions thus “interfered with [the
victim]’s liberty without [the victim]’s consent,” MCL 750.349b(3)(a), “by means of a weapon
or dangerous instrument [the BB gun],” MCL 750.349b(1)(a), “to facilitate the commission of
another felony [the armed robbery],” MCL 750.349b(1)(c). Sufficient evidence, viewed in a
light most favorable to the prosecution, thus supported the jury’s conviction of defendant for
unlawful imprisonment. Johnson, 460 Mich at 722-723.

       Defendant also asserts that the trial court erred in assessing five points for offense
variable (OV) 3 and 10 points for OV 14. Defendant forfeited any objection to OV 3, and we
therefore review it for plain error affecting his substantial rights. People v Hershey, 303 Mich
App 330, 349; 844 NW2d 127 (2013). We review the factual determinations underlying the trial
court’s OV 14 assessment for clear error; such determinations must be supported by a
preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).

        OV 3 accounts for physical injury to a victim, and a five point score is required where
“[b]odily injury not requiring medical treatment occurred to a victim.” MCL 777.33(1). “Bodily
injury” encompasses “anything that the victim would, under the circumstances, perceive as some
unwanted physically damaging consequence.” People v McDonald, 293 Mich App 292, 298;
811 NW2d 507 (2011). In this case, the evidence established that the victim had a “bodily
injury” in the form of a quarter-sized red mark on the left side of his neck consistent with the
barrel of a handgun. The trial court therefore did not plainly err in assessing five points for OV
3. Hershey, 303 Mich App at 349.

        OV 14 accounts for the offender’s role in the offense, and a ten-point score is required if
“[t]he offender was a leader in a multiple offender situation.” MCL 777.44. We have defined a
“leader” for purposes of OV 14 as “‘a person or thing that leads’ or ‘a guiding or directing
head[,]’” and have defined “lead[ing]” as “guiding, preceding, showing the way, directing, or
conducting.” People v Rhodes (On Remand), 305 Mich App 85, 90; 849 NW2d 417 (2014)
(quotation and citation omitted). In determining whether defendant was a leader, we consider
whether “defendant acted first, gave any directions or orders to [other offenders], displayed any
greater amount of initiative . . . , played a precipitating role in [other offenders’] participation . . . ,
or was otherwise a primary causal or coordinating agent.” Id.

        In this case, although defendant was the only offender who used a weapon, the evidence
showed that Taylor initiated the plan to meet the victim for a would-be drug deal, gave defendant
a signal to restrain the victim, and took money and a cellular telephone from the victim’s person.
Taylor therefore “acted first” and “gave . . . orders to [defendant].” Id. Accordingly, the

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evidence suggested that Taylor, rather than defendant, was the leader of the offense. While more
than one offender may be a leader for purposes of OV 14 if three or more offenders were
involved, MCL 777.44(2)(b), only defendant and Taylor committed the robbery. Accordingly, a
preponderance of the evidence does not establish that defendant was a leader, and the trial court
thus clearly erred in assessing 10 points for OV 14. Hardy, 494 Mich at 438. Because the
proper score of zero points for OV 14 alters defendant’s appropriate guidelines, resentencing is
required. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

        Defendant finally asserts that his appellate counsel rendered ineffective assistance by
failing to admit an audio recording of a telephone call between defendant and Taylor at the
Ginther hearing in this case. At the Ginther hearing, the prosecutor offered to obtain and play
recordings for the trial court. Defense counsel did not indicate whether he had heard them, but
stated that he objected to their admission into evidence and “[woul]d like to move on.” The trial
court completed the hearing without listening to the recordings. Defendant claims that one of
these recordings proves that Taylor provided false testimony against defendant when he testified
that a robbery occurred.

        A criminal defendant has a right to the effective assistance of counsel in a first appeal of
right. Evitts v Lucey, 469 US 387, 393-394; 105 S Ct 830; 83 L Ed 2d 821 (1985). We apply the
same legal standards for ineffective assistance of appellate counsel as in ineffective assistance of
trial counsel. People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014). In the
transcription of the conversation in question, Taylor at no point indicated or supported that he
and defendant did not rob the victim. Taylor agreed with defendant’s suggestions that he tell
unspecified persons that no robbery took place, but he never stated that it was true that there was
no robbery or that he lied during his trial testimony. In light of the absence of a statement that
Taylor provided false testimony at defendant’s trial, defendant has not shown that admitting the
recording would have benefited his argument that a new trial was warranted. Defendant
accordingly failed to establish a necessary factual predicate of his ineffective assistance of
appellate counsel claim, Carbin, 463 Mich at 601, and thus has not shown that his prior appellate
counsel was ineffective.

       We affirm in part, but vacate defendant’s armed robbery sentence and remand for
resentencing. We do not retain jurisdiction.



                                                             /s/ David H. Sawyer
                                                             /s/ Michael J. Kelly
                                                             /s/ Douglas B. Shapiro




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