            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,                                   FOR PUBLICATION
                                                                   January 23, 2020
              Plaintiff-Appellee,                                  9:10 a.m.

v                                                                  No. 346901
                                                                   Kent Circuit Court
VALDEN DEVONE WHITE,                                               LC No. 17-003777-FH

              Defendant-Appellant.


Before: O’BRIEN, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

RONAYNE KRAUSE, J.

        Defendant, Valden Devone White, appeals as of right his convictions by a jury of storing
a stolen firearm, MCL 750.535b; felon in possession of a firearm, MCL 750.224f; felon in
possession of ammunition, MCL 750.224f(6); violent felon in possession of body armor, MCL
750.227g(9)(a); maintaining a drug house, MCL 333.7405(d); possession of a firearm during the
commission of a felony (felony-firearm), MCL 750.227b; and possession of marijuana, MCL
333.7403(2)(d). The trial court sentenced defendant to 28 to 180 months’ imprisonment for the
storing a stolen firearm conviction, 28 to 90 months’ imprisonment for the felon in possession of
a firearm conviction, 28 to 90 months’ imprisonment for the felon in possession of ammunition
conviction, 28 to 72 months’ imprisonment for the violent felon in possession of body armor
conviction, 24 to 36 months’ imprisonment for the maintaining a drug house conviction, 2 years’
imprisonment for the felony-firearm conviction, and 12 to 24 months’ imprisonment for the
possession of marijuana conviction. Defendant argues that he was denied effective assistance of
counsel pertaining to defendant’s rejection of a plea offer prior to his preliminary examination.
We disagree and affirm the jury’s verdict.

                                    I. BACKGROUND FACTS

       On the basis of information obtained from a confidential informant, Detective Lindsey Jo
Moorehead obtained a search warrant to install a GPS tracker on defendant’s vehicle. After
following defendant for six days, the police obtained a warrant to search defendant’s home. The
police arrested defendant while defendant was driving, and they found several hundred dollars
and marijuana on his person. The police then searched defendant’s home. During the search, the



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police found a bottle of codeine; two handguns; marijuana; a bulletproof vest; drug
paraphernalia; and a safe that contained ammunition, about $13,000, and traces of cocaine.

        Detective Moorehead interviewed defendant while the other officers conducted the search
of his home. According to Detective Moorehead, defendant told her that the guns, the money,
and the bulletproof vest belonged to him. He also stated that he used cocaine and crack cocaine
and that he sold drugs to his friends. As will be discussed more fully, defendant maintains that
he was not given his Miranda1 rights, did not commit any of the charged offenses other than
possession of marijuana, and did not confess to Detective Moorehead. Defendant rejected a plea
offer under which certain charges would not be brought if defendant waived the preliminary
examination. Defendant proceeded with the preliminary examination. 2 Defendant was
convicted and sentenced as stated above. Defendant obtained a Ginther3 hearing, following
which the trial court determined that trial counsel had not been ineffective. Defendant now
appeals, arguing that if he had received competent advice from his trial attorney, he would not
have rejected the first plea offer.

                   II. STANDARD OF REVIEW AND PRINCIPLES OF LAW

        Defendants are entitled to the effective assistance of counsel when considering or
negotiating a plea agreement. People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587
(2014). Defense counsel’s obligation was to properly advise defendant regarding “the nature of
the charges or the consequences of the guilty plea” and the “possible defenses to the charges to
which the defendant is pleading guilty,” so defendant has “the ability to make an intelligent and
informed choice from among his alternative courses of action.” People v Corteway, 212 Mich
App 442, 445; 538 NW2d 60 (1995). The proper remedy for ineffective assistance of counsel
during plea negotiations will depend on the circumstances of the case, but it could potentially
entail resentencing or requiring a rejected plea to be reoffered. Lafler v Cooper, 566 US 156,
171; 132 S Ct 1379; 182 L Ed 2d 398 (2012).

        As with any other claim of ineffective assistance, “[t]he defendant has the burden of
establishing the factual predicate of his ineffective assistance claim.” Douglas, 496 Mich at 592.
“In the context of pleas a defendant must show the outcome of the plea process would have been
different with competent advice.” Lafler, 566 US at 163. Thus,

         [a] defendant seeking relief for ineffective assistance in this context must meet
         Strickland[v Washington, 466 US 668, 690; 104 S Ct 2052; 80 L Ed 2d 674
         (1984)]’s familiar two-pronged standard by showing (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


1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
 Defendant also later rejected a substantially less generous plea offer before trial, but defendant
emphasizes on appeal that his ineffective assistance claim pertains only to the first plea offer.
3
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -2-
       result of the proceeding would have been different.” [Douglas, 496 Mich at 592,
       quoting Lafler, 566 US at 163.]

Lafler did not create a new rule of law, but rather only established how the familiar Strickland
test applied to plea negotiations. People v Walker, ___ Mich App ___, ___; ___ NW2d ___
(2019) (Docket No. 332491, slip op at p 10).4 Counsel’s performance is strongly presumed to
have been “born from a sound trial strategy.” People v Trakhtenberg, 493 Mich 38, 52; 826
NW2d 136 (2012). This Court should not “substitute our judgment for that of counsel” or “use
the benefit of hindsight when assessing counsel’s competence.” People v Unger, 278 Mich App
210, 242-243; 749 NW2d 272 (2008). A trial strategy is not ineffective simply because it
ultimately does not succeed. People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291
(2001). A strategy is also not ineffective because it entails taking calculated risks, especially if
the range of available options for the defense is meagre. People v Pickens, 446 Mich 298, 324-
325; 521 NW2d 797 (1994).

         When a defendant claims to be prejudiced by rejecting a plea offer based on ineffective
assistance of counsel, the defendant must show (1) “that but for the ineffective advice of counsel
there is a reasonable probability that the plea offer would have been presented to the court (i.e.,
that the defendant would have accepted the plea and the prosecution would not have withdrawn
it in light of intervening circumstances)”; (2) “that the court would have accepted its terms”; and
(3) “that the conviction or sentence, or both, under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were imposed.” Lafler, 566 US at 163-164.
“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). This
Court reviews for clear error a trial court’s findings of fact and de novo questions of
constitutional law. Id. This Court defers to the trial court’s superior position to evaluate the
relative credibilities of witnesses who testified before it. People v Johnson, 502 Mich 541, 565;
918 NW2d 676 (2018).

                                         III. ANALYSIS

        Defendant argues that he was denied his right to effective assistance of counsel because
defense counsel misadvised him as to whether to reject the prosecution’s plea offer and proceed
to preliminary examination. We disagree.

       Defendant was originally charged with storing a stolen firearm, felon in possession of a
firearm, possession of codeine less than 25 grams, violent felon in possession of body armor,
maintaining a drug house, and possession of marijuana. Before preliminary examination, the
prosecution offered defendant the opportunity to plead guilty to storing a stolen firearm, felon in
possession of a firearm, and possession of codeine less than 25 grams in exchange for dismissal



4
  Contrary to defendant’s argument the facts in Walker were meaningfully distinguishable from
the facts in the instant matter. In Walker, the defendant’s trial counsel did not even inform the
defendant of a plea offer. Walker, ___ Mich App at ___ (slip op at p 2).


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of the other three counts. The prosecution also warned defendant that if he proceeded to the
preliminary examination, the prosecution would add charges of felony-firearm and felon in
possession of ammunition to defendant’s charges. Defendant decided to proceed to preliminary
examination, and the additional charges were added.

        It is not disputed that the rejected plea offer5 would have resulted in a less serious array
of convictions and sentences, and we presume, although we do not decide, that the prosecution
would not have withdrawn the offer. Lafler, 566 US at 163-164. At issue is whether defendant
would have accepted the offer if trial counsel had provided him with allegedly more competent
advice, and whether the offer might have been accepted by the trial court.

       Initially, defendant asserts that trial counsel made a variety of alleged mistakes
throughout the proceedings after the plea was rejected. Defendant’s argument is difficult to
follow, but it apparently turns on the theory that counsel’s alleged subsequent errors, which
defendant does not even assert constituted ineffective assistance of counsel, prove that he must
have been ineffective in providing advice regarding the plea offer. What happened after
defendant rejected the plea is irrelevant,6 and in any event, a trial strategy is not ineffective for
being risky or unsuccessful. Kevorkian, 248 Mich App at 414-415; Pickens, 446 Mich at 324-
325. Furthermore, trial counsel indicated his awareness that the confession was the most
important piece of evidence, and his general goal was to try to find a way to suppress or
undermine the confession despite having very little other evidence with which to work.
Defendant having already made the decision to reject the plea offer by that time, we find nothing
unsound about trial counsel’s strategy or his implicit determination that the only available
options were essentially a “long shot.”

        The heart of defendant’s claim is that trial counsel erred by failing to “explain to
[defendant] why there was no legal support for his claim of innocence” or “the legal implications
of the facts to which [defendant] had admitted.” Particularly, defendant argues that trial counsel
failed to explain, before rejecting the plea offer, that he was “legally” guilty because of his
confession; defendant argues that he was therefore incorrect to believe that he was innocent.
Defendant apparently fails to comprehend two significant and fundamental legal
incompatibilities with his argument.

       First, that a trial court may not accept a guilty plea without placing the defendant under
oath and establishing a factual basis for defendant’s guilt. MCR 6.302; People v Watkins, 468


5
  We reiterate that in his brief on appeal, defendant explains that his ineffective assistance claim
is based only on the first plea offer.
6
  We do, however, note that because defendant denied making a confession at all, rather than
claiming that his confession occurred but was involuntary, his confession was properly a
question of fact for the jury rather than a proper subject for a Walker hearing. See People v Neal,
182 Mich App 368, 371-372; 451 NW2d 639 (1990). Counsel is not ineffective for failing to
pursue a meritless position. People v Riley (After Remand), 468 Mich 135, 142; 659 NW2d 611
(2003).


                                                -4-
Mich 233, 238; 661 NW2d 553 (2003). Courts in Michigan are required to evaluate a
defendant’s actual guilt before accepting a plea, not just “the mere expression of willingness by
the prosecutor and defendant to strike a bargain.” See People v Butler, 43 Mich App 270, 279-
280; 204 NW2d 325 (1972). It is not disputed that defendant maintained his actual innocence of
all charges other than possession of marijuana, and he continued to maintain his actual innocence
throughout the Ginther hearing. If defendant truly had not committed (or truly believed he had
not committed) any of the crimes to which he allegedly confessed, then entering a guilty plea
would have entailed committing perjury. MCL 750.423(1). It is per se not ineffective for
counsel to refrain from seeking to admit perjured testimony; indeed, counsel is obligated to
prevent a client from committing perjury of which counsel is aware. See People v Collier, 105
Mich App 46, 56; 306 NW2d 387 (1981); see also MCL 750.424; MCL 750.425.

        Secondly, that the jury was not required to believe the confession, even in the absence of
any contradictory evidence. See People v Jackson, 390 Mich 621, 624-625; 212 NW2d 918
(1973); People v Fuller, 395 Mich 451, 453-454; 236 NW2d 58 (1975). Indeed, the jury is not
even required to accept facts to which the parties have stipulated. M Crim JI 4.7. Trial counsel
was emphatic that he explained to defendant that the confession, whether or not it was true, made
acquittal an extremely unlikely outcome. Defendant is certainly correct that the confession made
his defense difficult. However, defendant is incorrect to assert that the confession was somehow
legally binding. Defendant’s confession was a highly prejudicial piece of evidence, but
nevertheless it was nothing more than a piece of evidence. The confession made an acquittal
improbable, but it did not make defendant “legally guilty.”

         Furthermore, trial counsel explained that he wanted to proceed with the preliminary
examination because he lacked information he believed might help him undermine or suppress
the confession, he had been assured by the prosecution that there was no further discovery to be
handed over, and therefore the preliminary examination might be defendant’s only way to obtain
that information. Trial counsel warned defendant of the risk of proceeding to preliminary
examination. However, trial counsel also warned defendant that if he accepted the prosecution’s
plea offer, he would serve time in prison. According to trial counsel, when defendant realized he
was facing a felony and potential prison time even under the plea offer, he was not willing to
accept that plea offer. Additionally, as noted, defendant maintained that he was innocent and
denied making a confession to Detective Moorehead. Defendant contends that defense counsel
never told him what it meant to add felony-firearm to his list of charges, but defense counsel
testified that he did. To the extent defendant’s testimony conflicts with trial counsel’s testimony
at the Ginther hearing, we defer to the trial court’s finding that trial counsel was more credible.
Johnson, 502 Mich at 565. The record shows that trial counsel reasonably and accurately
advised defendant of the nature of the dilemma he faced, had a sound reason for proceeding with
the preliminary examination, and properly refrained from suborning perjury.

        As stated earlier, to prove ineffective assistance of counsel, a defendant must also show
that defense counsel’s objectively deficient performance prejudiced him. Douglas, 496 Mich at
592. The trial court did not clearly err in accepting trial counsel’s testimony that defendant was
disinclined to plead guilty to a felony he maintained he did not commit and where such a plea
would result in serving a prison sentence. Therefore, defendant did not meet his burden of
establishing that he would have accepted the prosecution’s plea offer and that there was “a
reasonable probability that the plea offer would have been presented to the court.” See Lafler,
                                                -5-
566 US at 164. Furthermore, because defendant maintained his innocence, it is not clear that the
trial court could have established, to its satisfaction, a factual basis for a guilty plea. See MCR
6.302(D)(1). We are therefore also unpersuaded that the trial court would have accepted the
plea. See Douglas, 496 Mich at 592. Even if trial counsel’s advice had been objectively
substandard, which it was not, defendant cannot establish that trial counsel’s performance
prejudiced him.

       Affirmed.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Colleen A. O’Brien
                                                            /s/ Michael F. Gadola




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