                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 11, 2018
               Plaintiff-Appellee,

v                                                                  No. 337137
                                                                   Wayne Circuit Court
CHRISTOPHER JAMES COLEMAN,                                         LC No. 16-008121-01-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and JANSEN and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of three counts of armed robbery,
MCL 750.529, felonious assault, MCL 750.82, assault with intent to commit great bodily harm
less than murder (AWIGBH), MCL 750.84, carrying a concealed weapon (CCW), MCL
750.227, felon in possession of a firearm (felon-in-possession), MCL 750.224f, and possession
of a firearm during the commission of a felony (felony-firearm), second notice, MCL
750.227b(1). Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to
22 to 40 years’ imprisonment for each armed robbery conviction, 5 to 15 years’ imprisonment
for the felonious assault conviction, 22 to 40 years’ imprisonment for the AWIGBH conviction,
22 to 40 years’ imprisonment for the CCW conviction, 22 to 40 years’ imprisonment for the
felon-in-possession conviction, and a mandatory 5 years’ imprisonment for felony-firearm,
second notice, conviction. We affirm.

                 I. BACKGROUND FACTS AND PROCEDURAL HISTORY

        At about 7:00 p.m. on September 4, 2016, Alonte Reynolds and his girlfriend Shanequia
McRunnnels were visiting outside the Detroit home of Alonte’s cousins Dakia and Dominique
Reynolds. A blue Saturn containing three men pulled up and parked near them. All four victims
identified defendant as one of the men who got out of the blue Saturn and walked up to the
victims. At gunpoint, defendant took Alonte’s glasses, hat, shirt, and shoes, and the purses,
phones, and a set of car keys from Dakia and Dominique. As the three men departed in the blue
Saturn, Alonte chased them in his car, and exchanged shots with them. The driver of the blue
Saturn disregarded a stop sign during the chase, and ran into a Malibu occupied by Christopher
Moore and his girlfriend Christian Watson. Defendant fired shots into the passenger door of the
Malibu, although no one was hit. As Alonte pulled up to the blue Saturn in his car, the three men
exited the car and dispersed on foot. Alonte returned to his cousins’ residence to get the other

                                               -1-
three victims. They returned to the scene of the accident and spoke with Detroit Police Officers
Kimberly Wright and Ronald Kopp. Officer Kopp left the scene to look for the suspects, saw
defendant a couple of blocks over, and arrested him because he fit the victims’ description.

       Defendant testified on his own behalf at trial and denied involvement. He testified that
he had been drinking and barbequing with friends at the home of his brother, Allen Nickols,1
from early afternoon until about 7:30 pm. He stated that he was walking to a nearby store when
he was arrested.

       Before trial, defense counsel had provided notice that Nickols would testify as an alibi
witness but decided not to call him because he had learned that Nickols would not testify as
expected. The defense rested after defendant’s testimony, but the prosecution then called
Nickols to the stand as a rebuttal witness. Nickols testified that defendant was at his house that
day but left between 7:00 a.m. and 9:00 a.m., not 7:30 p.m., to go to the store and never returned.
Nickols also stated that only he and his family had been home that day, and they had not
barbecued.

       During deliberations, the jury requested the testimony of the arresting officer and asked
the time of the arrest. The trial court responded, without objection from defense counsel, that the
testimony would not be ready for weeks and the jury must rely on its collective memory. After
more deliberation, the jury convicted defendant of all remaining counts.2

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant first argues that his counsel’s failure to investigate his alibi witness was
ineffective because this decision fell below an objective standard of reasonableness and caused a
miscarriage of justice. Alternatively, defendant argues that this failure to investigate resulted in a
constructive denial of counsel under United States v Cronic; 466 US 648, 658; 104 S Ct 2039; 80
L Ed 2d 657 (1984). Finally, defendant argues that his counsel’s failure to object to the way the
judge responded to the jury when they asked for written testimony from the arresting officer
denied him the effective assistance of counsel. As to all of defendant’s claims, we disagree.

        “Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016). Generally, a trial court's findings of fact, if any, are reviewed for clear error, and
questions of law are reviewed de novo. Id. at 188. “Clear error exists if the reviewing court is
left with a definite and firm conviction that the trial court made a mistake.” People v Armstrong,
490 Mich 281, 289; 806 NW2d 676 (2011). However, because defendant failed to move for a
new trial or a hearing pursuant to People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922


1
 Nickols is actually defendant’s nephew, but he was raised along with defendant by defendant’s
mother.
2
  Two counts of felonious assault against children present at the robbery were dropped on
defendant’s motion for directed verdict after the prosecution rested.


                                                 -2-
(1973) in the trial court, our review is limited to errors apparent from the record. People v
Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).

        Effective assistance of counsel is presumed, and criminal defendants have a heavy burden
of proving otherwise. People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016).
When claiming ineffective assistance of counsel, it is a defendant's burden to prove “(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.” Solloway, 316 Mich App at 188,
citing Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A
defendant must show that “but for counsel's deficient performance, a different result would have
been reasonably probable.” Armstrong, 490 Mich at 290, citing Strickland, 466 US at 694–696.
“[D]efendant has the burden of establishing the factual predicate for his claim
of ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

                                A. FAILURE TO INVESTIGATE

        Defendant first argues that defense counsel provided ineffective assistance of counsel
where he filed a notice of alibi, subpoenaed the alibi witness, and told potential jurors of the alibi
witness, but then did not call the alibi witness at trial. Defendant claims the first indication that
the alibi witness would not testify favorably to defendant was when he testified as a rebuttal
witness for the prosecution. Accordingly, defendant argues, he is entitled to a new trial. We
disagree.

        The failure to undertake a reasonable investigation may constitute ineffective assistance
of counsel. People v Trakhtenberg, 493 Mich 38, 51-55; 826 NW2d 136 (2012). Defense
counsel has a duty to conduct reasonable investigations or to make a reasonable decision that
renders particular investigations unnecessary. Id. at 52. “The failure to make an adequate
investigation is ineffective assistance of counsel if it undermines confidence in the trial’s
outcome.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (quotation marks,
brackets, and citation omitted). The decision whether to call a witness is presumed to be a matter
of trial strategy, and this Court will not substitute its judgment for that of defense counsel.
People v Bass, 317 Mich App 241, 278; 893 NW2d 140 (2016). Failure to call a witness
amounts to ineffective assistance of counsel only if it deprives the defendant of a substantial
defense. Payne, 285 Mich App at 190. “A substantial defense is one that might have made a
difference in the outcome of the trial.” People v Jackson, 313 Mich App 409, 432; 884 NW2d
297 (2015) (quotation marks and citation omitted).

        Although defense counsel had subpoenaed Nickols as an alibi witness, he exercised his
discretion regarding what witnesses to call and did not, in fact, call Nickols to testify at trial.
Rather defendant testified on his own behalf and provided his own alibi. Therefore, defendant
was not deprived of a substantial defense due to defense counsel’s failure to call Nickols. Payne,
285 Mich App at 190. Moreover, in response to defendant’s testimony, the prosecution called
Nickols as a rebuttal witness, and Nickols completely contradicted defendant’s alibi. It is
entirely plausible that defense counsel knew that if he allowed Nickols to testify on behalf of
defendant, he would have either perjured himself or not helped defendant in any way. Based on
the foregoing, we cannot conclude that defense counsel’s failure to call Nickols as an alibi

                                                 -3-
witness was objectively unreasonable, and defendant’s claim of ineffective assistance of counsel
fails.

                                 B. THE CRONIC ANALYSIS

        Second, defendant raises an alternative argument: defense counsel’s failure to investigate
resulted in a constructive denial of counsel, and therefore his claim should be evaluated under
Cronic, and not the rubric announced in Strickland. We disagree.

        In rare cases, the Strickland analysis does not apply. The United States Supreme Court
explained in 1984 that, when a defendant is constructively denied the effective assistance of
counsel, the defendant is relieved of the burden of establishing a constitutional violation because
circumstances exist “that are so likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” Cronic, 466 US at 658. The Cronic Court identified
three possible situations in which such a result might be justified. The first was “when counsel
was either totally absent, or prevented from assisting the accused during a critical stage of the
proceeding.” Id. at 659 n 25. The second was when “counsel entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing.” Id. at 659. The third was when counsel
was called upon to provide assistance that no fully competent lawyer would be able to provide.
Id. at 659-660, citing Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932).

        Other than naming the alibi witness without investigation (and failing to object to the
judge’s response to the jury’s request for specific testimony during deliberations, discussed
below), defendant concedes that his counsel represented him adequately. Yet he argues that the
trial process lost its “character as a confrontation between adversaries,” see Cronic, 466 US at
656-657, because defense counsel effectively helped the prosecution by identifying an alibi
witness that would instead contradict defendant’s alibi testimony. In other words, defendant is
arguing that the very magnitude of the alibi witness debacle requires the conclusion that his
attorney entirely failed to subject the prosecution’s case to meaningful adversarial testing under
Cronic and its progeny, specifically Bell v Cone, 535 US 685; 122 S Ct 1843; 152 L Ed 2d 914
(2002). These cases do not support defendant’s argument.

        In Cronic, the United States Supreme Court determined that, “if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of
Sixth Amendment rights that makes the adversary process itself presumptively unreliable.”
Cronic, 466 US at 659 (emphasis added). The plain language of Cronic directly contradicts
defendant’s position. Cronic indicates that only an entire failure to subject a case to meaningful
adversarial testing would suffice in order for a court to relieve a defendant of the burden to prove
that counsel acted unreasonably and the defendant was prejudiced. Id. Additionally, the short
discussion of the second circumstance in Cronic is dictum. The holding in Cronic relates to the
third potential circumstance, not the second. See People v Lewis, 501 Mich 1, 8; 903 NW2d 816
(2017) (the Cronic Court’s statements about the first circumstance, complete denial of counsel,
were dicta because Cronic concerned the third circumstance, not the first).

       Bell, on the other hand, does involve the second circumstance described in Cronic, as
does the instant case. Bell, 535 US 685. In Bell, the defendant’s complaint about his
representation was limited to his attorney’s representation during the sentencing hearing. Id. at

                                                -4-
690-691. At sentencing, trial counsel “called to the jury’s attention the mitigating evidence
already before them.” Id. at 691. Counsel asked the jury to extend mercy because of the
defendant’s extreme mental disturbance and drug addiction, both of which resulted from his
service in the Vietnam war. Defense counsel also cross-examined the prosecution’s witnesses
during this hearing, eliciting the fact that defendant had been awarded a Bronze Star for his
service. Further, the defense counsel successfully fought the state’s proffer of photos of the
victims’ decomposing bodies. Id. After a junior prosecutor gave a “low-key” closing, defense
counsel waived final argument. Id. at 691-692. This prevented the lead prosecutor, known as a
very effective advocate, from arguing in rebuttal. Id. at 692. The defendant was sentenced to the
death penalty, after which the Tennessee Supreme Court affirmed both the convictions and the
sentence, and the United States Supreme Court denied certiorari. Id.

        After a number of post-conviction proceedings, including one in which the defendant
sought a writ of habeas corpus in federal court, the Sixth Circuit reversed with respect to his
sentence only. Id. at 693. The Sixth Circuit held that trial counsel “did not subject the State’s
call for the death penalty to meaningful adversarial testing” under Cronic because he failed to
ask for mercy after the prosecution gave its final argument. Id. The Supreme Court reversed, in
part because “[w]hen we spoke in Cronic of the possibility of presuming prejudice based on an
attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be
complete.” Id. at 696-697 (emphasis added). In Bell, the Court explained, the failure was not
complete because counsel did not “fail[] to oppose the prosecution throughout the sentencing
proceeding as a whole,” but only at specific points during the proceeding. Id. at 697. Because
Bell reaffirmed the language of Cronic requiring the failure of meaningful adversarial process to
be entire, defendant’s reliance on Bell is also misplaced.

        The Michigan Supreme Court also adopted Bell’s rule that the failure must be entire in
order for Cronic to apply. Frazier, 478 Mich at 244. Our Supreme Court said, “The Cronic test
applies when the attorney’s failure is complete, while the Strickland test applies when counsel
failed at specific points of the proceeding.” Id., citing Bell, 535 US 697. Our Supreme Court
explained that in Frazier, the “counsel’s performance should have been reviewed under the
Strickland standard” because the defendant “allege[d] only that counsel erred at a specific point
of the proceeding by advising him that he could waive his right to counsel at the interrogation.”
Frazier, 478 Mich at 245. Like the defendants in Bell and Frazier, defendant does not argue that
his attorney’s failure was entire, but argues instead that counsel’s failure to investigate the alibi
witness in and of itself was sufficient to destroy the adversarial process and deny defendant a fair
trial. His argument is without merit.

        Moreover, the Bell Court explained that the challenged error by the attorney was “plainly
of the same ilk as other specific attorney errors” that have been held subject to the Strickland
analysis. Id. at 698. That is also true in the instant case; the alleged error of failure to investigate
a witness has been analyzed under the Strickland test, including in Strickland itself. Strickland,
466 US at 69. See also McGhee, 268 Mich App at 625-626 (using the Strickland standard to
determine whether counsel’s failure to investigate was ineffective assistance) and People v
Grant, 470 Mich 477, 484-485, 498; 684 NW2d 686 (2004) (holding under the Strickland
analysis that counsel’s failure to investigate was unreasonable and prejudiced the defendant).
Our own Supreme Court has said, “The [United States] Supreme Court has rejected a categorical
prophylactic approach to claims of counsel’s deficient performance and of failure to adequately
                                                  -5-
prepare or investigate in favor of an inquiry into actual performance and prejudice.” People v
Mitchell, 454 Mich 145, 158; 560 NW2d 600 (1997) (emphasis added) (holding that the
defendant “must affirmatively demonstrate that counsel’s performance was objectively
unreasonable and so prejudicial as to deprive him of a fair trial”).

        For all of these reasons, defendant’s argument that Cronic applies to the instant case is
meritless. Only the Strickland analysis is applicable, and, as explained above, defendant’s claim
fails under the Strickland analysis.

                                    C. FAILURE TO OBJECT

        Defendant next argues that he received ineffective assistance of counsel when his
attorney failed to object to the trial court’s refusal to allow the jury to re-examine the testimony
of the arresting officer. Again, we disagree.

       During deliberations, the trial court responded to the jury’s request for Officer Hopp’s
testimony and the time of the arrest as follows:

         As to Officer Hopp’s testimony, it has not been printed out yet, so you’ll have to
         rely on your collective memory, okay. And what time was [defendant’s] arrest?
         Same thing, okay. Officer Hopp I think is the person who arrested [defendant], so
         you’ll have to rely on your—we’ll keep this. Okay.”

Defense counsel neither agreed nor objected to the trial court’s response.

         MCR 2.513(P) states:

                 If, after beginning deliberation, the jury requests a review of certain
         testimony or evidence that has not been allowed into the jury room under subrule
         (O), the court must exercise its discretion to ensure fairness and to refuse
         unreasonable requests, but it may not refuse a reasonable request. The court may
         make a video or audio recording of witness testimony, or prepare an immediate
         transcript of such testimony, and such tape or transcript, or other testimony or
         evidence, may be made available to the jury for its consideration. The court may
         order the jury to deliberate further without the requested review, as long as the
         possibility of having the testimony or evidence reviewed at a later time is not
         foreclosed.

        The Michigan Supreme Court has held instructions very similar to those given in the
instant case to be error under the previous version of MCR 2.513(P).3 People v Carter, 462


3
    The previous version of this court rule was MCR 6.414(H), which stated:
                If, after beginning deliberation, the jury requests a review of certain testimony or
         evidence, the court must exercise its discretion to ensure fairness and to refuse
         unreasonable requests, but it may not refuse a reasonable request. The court may order


                                                 -6-
Mich 206, 213 n 10; 612 NW2d 144 (2000). In Carter, the trial court said to the jury, in relevant
part:

               With regard to the remainder of the note, which again asks for various
       people’s testimony . . . one of the things the court explained to you in the
       beginning, that the transcripts will not be typed for some weeks and months way
       into the future and you must listen very carefully because you must rely on your
       collective memories to resolve any issues with regard to that.

               So that is the court’s response to your question. You now may return to
       the jury room and resume your deliberations. [Id. at 213 (emphasis added).]

Our Supreme Court agreed, determined that the trial court’s response to the jury was deficient,
and cautioned:

               While it is true that trial transcripts often are not prepared until well after
       trial, we caution against instructing the jury in this manner as such instruction
       forecloses to the jury the possibility of later reviewing the requested testimony,
       e.g., by having the court reporter read back the testimony, and consequently,
       violates the court rule. [Id. at 213, n 10.]

        In the instant case, the judge’s response also violated MCR 2.513(P) because the judge
failed to inform the jury that they could ask again if, after more deliberation, they still believed
they needed the testimony. Id. See also People v Howe, 392 Mich 670, 677-678, 221 NW2d
350 (1974). The case law is clear that the rule requires a trial court to specifically state that the
jury can ask again later if they cannot reach a verdict without the testimony they seek. See, e.g.,
People v Joseph, 114 Mich App 70, 74-75; 318 NW2d 609 (1982) (finding no error when the
trial court twice instructed the jury to continue deliberations and request the rereading of the
testimony again if necessary) and People v Robbins, 132 Mich App 616, 620-621; 347 NW2d
765 (1984) (finding no error when the trial court instructed the jury to continue attempting to
discuss and resolve any problems with the requested testimony, and make another request to
rehear the testimony if they still had problems after further deliberations).

       “Deviation from a legal rule is ‘error’ unless the rule has been waived.” Carter, 462
Mich at 214, quoting United States v Olano, 507 US 725, 732-733; 113 S Ct 1770; 123 L Ed 2d
508 (1993). The trial court’s response to the jury’s request was error but, unlike in Carter, the
issue was not waived but merely forfeited when defense counsel failed to object. See Carter,
462 Mich at 215, citing People v Carines, 460 Mich 750, 762-763; 597 NW2d 130 (1999).



       the jury to deliberate further without the requested review, so long as the possibility of
       having the testimony or evidence reviewed at a later time is not foreclosed. [Carter, 462
       Mich at 210.]




                                                -7-
“Mere forfeiture . . . does not extinguish an ‘error.’ ” Carter, 462 Mich at 215, citing Olano, 507
US at 733.

        Defendant argues that counsel’s error in not objecting requires automatic reversal.
Relying on Howe, 392 Mich 670, and People v Smith, 396 Mich 109; 240 NW2d 202 (1975),
defendant states that this error would have required automatic reversal had defendant’s counsel
objected to the judge’s response. This position is erroneous, however. The automatic reversal
rule set forth in Howe and Smith was superseded by the plain error rule set forth in Carines.
People v Tucker, 469 Mich 903; 669 NW2d 816 (2003).

         Additionally, defendant’s claim is one of ineffectiveness of counsel, and he must,
therefore, establish both elements of his ineffectiveness claim: that his counsel unreasonably
erred in not objecting to the trial court’s erroneous response, and his attorney’s failure to object
to the trial court’s response to the jury prejudiced him. Garza, 246 Mich App at 255. Defendant
fails to establish either element of his ineffectiveness claim. First, he fails to rebut the
presumption that the challenged decision was a product of sound trial strategy. See Plummer,
229 Mich App at 308. Defendant claims that it cannot reasonably be argued that his trial counsel
had a legitimate strategic reason not to object to the instruction. Yet plaintiff offers a plausible
reason. The jury asked for Officer Hopp’s testimony and the time of the arrest. As the arresting
officer, Officer Hopp would have been the person to testify as to the time of the arrest. As
plaintiff points out, Officer Hopp’s testimony did not include the time of the arrest, but it did
include a statement that he had arrested defendant after hearing a description over the radio that
matched defendant. The jury’s review of this testimony, therefore, would not have helped
defendant but would have placed additional emphasis on the fact that defendant matched the
description given by multiple victims. Because it is plausible that defense counsel chose not to
object for this reason, defendant failed to establish that his counsel’s performance fell below the
standard of reasonableness. Moreover, defendant has also failed to present an argument that,
“but for the error, the result of the proceedings would have been different and [] the proceedings
were fundamentally unfair or unreliable.” See Garza, 246 Mich App at 255. Based on the
foregoing, defendant’s claim of ineffective assistance of counsel fail.

                     III. IMPROPER SENTENCING CONSIDERATIONS

        Finally, defendant argues that the trial court violated his Fifth Amendment right against
self-incrimination by improperly considering his failure to admit guilt and improperly punishing
defendant for exercising his right to a trial. Again, we disagree.

        Whether the trial court employed improper considerations when sentencing a defendant is
a question of law, and is therefore reviewed de novo on appeal. People v Harris, 224 Mich App
597, 599; 569 NW2d 525 (1997), overruled in part on other grounds by People v Comer, 500
Mich 278; 901 NW2d 553 (2017). Unpreserved issues of constitutional law, however, are
reviewed for plain error affecting substantial rights. Carines, 460 Mich at 763-764. This issue is
not preserved because defendant did not object to the trial court’s consideration of improper
information in sentencing. See People v Edmonds, 93 Mich App 129, 135-136; 285 NW2d 802
(1979).



                                                -8-
        Proper factors for consideration in sentencing include “(1) the potential for the
reformation of the offender, (2) the protection of society, (3) the discipline of the wrongdoer, and
(4) the deterrence of others from committing like offenses.” People v Wesley, 428 Mich 708,
713; 411 NW2d 159 (1987). A trial court may exercise considerable discretion in sentencing,
but that discretion is not unfettered. People v Adams, 430 Mich 679, 687; 425 NW2d 437
(1988). “Numerous checks shield the defendant from an arbitrary sentence and help to insure
that the objective of personalized disposition is achieved.” Id. The presentence report and the
guidelines help to ensure that the sentencing judge has a broad and fair understanding of the
defendant and the circumstances of the crime. In addition there is jurisprudence to “limit
consideration of factors deemed inappropriate in sentencing.” Id. A defendant’s refusal to admit
guilt is one such factor. People v Dobek, 274 Mich App 58, 104; 732 NW2d 546 (2007) (“A
sentencing court cannot base a sentence even in part on a defendant’s refusal to admit guilt.”).

        A reviewing court considers three factors to determine whether a sentencing judge was
influenced by a defendant’s continued assertion of innocence. People v Payne, 285 Mich App
181, 194; 774 NW2d 714 (2009). They are “ ‘(1) the defendant’s maintenance of innocence after
conviction; (2) the judge’s attempt to get the defendant to admit guilt; and (3) the appearance that
had the defendant affirmatively admitted guilt, his sentence would not have been so severe.’ ”
Id., quoting Wesley, 428 Mich at 713. However, a trial court can take into consideration a
defendant’s lack of remorse in imposing a sentence. Wesley, 428 Mich at 714. Resentencing is
not warranted when “nothing in the record suggests that the trial court would have been more
lenient had defendant admitted guilt.” Payne, 285 Mich App at 194.

        Here, defendant continued to maintain his innocence when testifying at trial. However,
the record before us is clear that the trial court made no attempt to get defendant to admit his
guilt and gave no indication that the sentence would be lighter if defendant did so. When asked
if he had anything to say at sentencing, defendant briefly apologized to the victim and asked for
leniency. The trial court responded by stating its agreement with the prosecutor that defendant
was a menace to society because defendant’s actions could have seriously injured or killed a
number of people, and that nothing defendant could say would make the court extend mercy in
this case. This was followed by a statement that defendant had a right to a trial, but still had not
accepted responsibility, and went to court “praying like hell a jury wouldn’t convict you.” The
trial court also mentioned defendant’s failed attempt to have his nephew provide him with an
alibi. In all of the court’s comments, there is neither a direct nor an implicit request for
defendant to admit his guilt.

        Likewise there was no indication of any kind that the defendant would have received a
more lenient sentence had he admitted guilt. To the contrary; the trial court said that nothing
defendant could say would have convinced the court to show mercy in this case. The trial
court’s main motivation in sentencing defendant appears to have been the protection of society
and the discipline of the wrongdoer, both proper considerations. Wesley, 428 Mich at 713.
Additionally, although the trial court did not specifically mention other appropriate
considerations, it was also aware of his low potential for rehabilitation because of defendant’s
status as a fourth-offense habitual offender, MCL 769.12, and because previously, he had never
successfully completed probation. Accordingly, we conclude that defendant has failed to
establish the trial court committed plain error at sentencing that affected his substantial rights.


                                                -9-
Affirmed.


                   /s/ Brock A. Swartzle
                   /s/ Kathleen Jansen
                   /s/ Colleen A. O’Brien




            -10-
