                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 10, 2015
               Plaintiff-Appellee,

v                                                                    No. 318935
                                                                     Wayne Circuit Court
RICHARD ALLEN HATLEY, SR.,                                           LC No. 13-005698-FH

               Defendant-Appellant.


Before: FORT HOOD, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

        Defendant appeals by right his jury-trial convictions of unarmed robbery, MCL 750.530,
and second-degree retail fraud, MCL 750.356d. Defendant was sentenced as a fourth habitual
offender, MCL 769.12, to 8 to 20 years in prison for the robbery conviction and 30 days in jail
for the retail-fraud conviction. We affirm.

       Defendant first argues that the prosecution failed to provide him with timely notice under
MCL 769.13(1) of its intent to seek a fourth habitual offender sentence enhancement. We
disagree.

       Whether the prosecution provided timely notice under MCL 769.13(1) is reviewed de
novo. See People v Hornsby, 251 Mich App 462, 469; 650 NW2d 700 (2002). In addition, we
review for clear error a trial court’s findings of fact following an evidentiary hearing. People v
Buie, 491 Mich 294, 304; 817 NW2d 33 (2012).

       MCL 769.13(1) provides:

               In a criminal action, the prosecuting attorney may seek to enhance the
       sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL
       769.12], by filing a written notice of his or her intent to do so within 21 days after
       the defendant’s arraignment on the information charging the underlying offense
       or, if arraignment is waived, within 21 days after the filing of the information
       charging the underlying offense.

MCL 769.13(2) clarifies that the prosecution must list the defendant’s prior convictions. In
addition, MCL 769.13(2) provides that the prosecution must serve the notice on the defendant
and must file the notice in the trial court. The notice “may be personally served upon the

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defendant or his or her attorney at the arraignment on the information charging the underlying
offense, or may be served in the manner provided by law or court rule for service of written
pleadings.” MCL 769.13(2). In addition, the prosecution must file a written proof of service in
the trial court. MCL 769.13(2).

        This Court has held that MCL 769.13 establishes “ ‘a bright-line test.’ ” People v
Morales, 240 Mich App 571, 575; 618 NW2d 10 (2000) (citation omitted). However, this Court
has also found that the prosecution’s failure to file proof of service with the trial court may
constitute harmless error if the defendant received notice of the prosecution’s intent to enhance
his or her sentence and the defendant had the ability to respond. See People v Walker, 234 Mich
App 299, 314-315; 593 NW2d 673 (1999).

        Defendant had notice of the prosecution’s intent to seek a fourth habitual offender
sentence enhancement. The felony complaint, felony warrant, and felony information all
provided defendant with notice. On June 11, 2013, a warrant containing a fourth habitual
offender notice was filed in the district court. On the same day, a felony complaint containing
the fourth habitual offender notice was filed in the district court. On June 7, 2013, the
prosecution signed a felony information, which also contained the habitual offender notice. On
July 1, 2013, defendant was arraigned on the information in the trial court. Defendant waived
the formal reading of the information. On July 8, 2013, the trial court held a docket conference,
at which defendant stated that he was rejecting the prosecution’s plea offer. Former defense
counsel stated that he notified defendant of the offer, which was “an offer of one-and-a-half to 15
years; that’s with a dismissal of the Habitual.” On July 12, 2013, the prosecution signed an
amended felony information, which contained a fourth habitual offender notice. The amended
felony information appears in the lower court file.

        At the evidentiary hearing on defendant’s motions for a new trial and to correct an invalid
sentence, former defense counsel testified that the prosecution did not provide him with a
habitual offender notice. However, counsel acknowledged that he had read the prosecutor’s file
at the preliminary examination, which contained a fourth habitual offender notice, and informed
defendant of the contents of the file. Former defense counsel also informed defendant of the
charges, including the fact that defendant was charged as a fourth habitual offender, before the
arraignment on the information. Therefore, defendant had notice of the prosecution’s intent to
seek a habitual offender sentence enhancement. See MCL 769.13(1).

        Additionally, during defendant’s sentencing, the trial court noted that the presentence
investigation report (PSIR) did not account for the fact that defendant was a fourth habitual
offender. The following discussion took place between the trial court and defense counsel:

               The Court: That was the section—I think it’s despicable that he has used
       his children as cover in the uh I think—what is it 12 now, felonies that he’s
       committed. Also, they do not have it scored as a habitual fourth which would
       change the guideline range from 29 to 114 rather than from 29 to 57.

               [Defense Counsel]: Your [sic] correct with that, Judge.




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        The trial court sentenced defendant to a minimum of eight years, or 96 months, in prison;
this was well above the minimum sentence guidelines range without the habitual offender
sentence enhancement. Neither defendant nor defense counsel challenged the sentence or noted
that defendant had not been provided with notice of the prosecution’s intent to seek a habitual
offender sentence enhancement. In sum, defendant had notice of the prosecution’s intent to seek
a fourth habitual offender sentence enhancement and did not object. See MCL 769.13(1).

        In addition, the prosecution’s failure to file a proof of service with the trial court
constituted harmless error. As discussed above, defendant had notice of the prosecution’s intent
to seek a fourth habitual offender sentence enhancement. Furthermore, there is no other
indication that the prosecution’s failure to file a proof of service in the trial court interfered with
defendant’s ability to respond to the habitual offender notice. See Walker, 234 Mich App at 314-
315. Thus, the prosecution’s failure to file a proof of service with the trial court constituted
harmless error. See id.

       Defendant next argues that defense counsel was ineffective for failing to inform him of
the potential consequences of rejecting the prosecution’s plea offer. Defendant also argues that
defense counsel was ineffective for telling him that a videotape recording from the CVS
Pharmacy where the incident occurred did not show anything. We disagree.

        “ ‘We review for an abuse of discretion a trial court’s decision to grant or deny a new
trial. An abuse of discretion occurs when the trial court’s decision is outside the range of
principled outcomes.’ ” People v Russell, 297 Mich App 707, 715; 825 NW2d 623 (2012)
(citation omitted). An ineffective assistance of counsel claim involves issues of law and fact. Id.
This Court reviews for clear error a trial court’s findings of fact at a Ginther1 hearing, and
reviews de novo questions of law. Russell, 297 Mich App at 715.

         A defendant has the right to the effective assistance of counsel under the United States
and Michigan Constitutions. People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012),
citing US Const, Am VI; Const 1963, art 1, § 20. “In order to obtain a new trial, a defendant
must show that (1) counsel’s performance fell below an objective standard of reasonableness and
(2) but for counsel’s deficient performance, there is a reasonable probability that the outcome
would have been different.” Trakhtenberg, 493 Mich at 51. Defense counsel is not ineffective
for failing to raise a futile objection. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120
(2010). Defense counsel must inform the defendant of any formal plea offer. Missouri v Frye,
566 US ___; 132 S Ct 1399, 1408; 182 L Ed 2d 379 (2012). To show that defense counsel’s
failure to inform the defendant of a formal plea offer prejudiced the defendant, a defendant must
establish that “ ‘the outcome of the plea process would have been different with competent
advice.’ ” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (citation omitted).
Specifically,

         “a defendant must show that but for the ineffective advice of counsel there is a
         reasonable probability that the plea offer would have been presented to the court


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


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       (i.e., that the defendant would have accepted the plea and the prosecution would
       not have withdrawn it in light of intervening circumstances), 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 the judgment and sentence
       that in fact were imposed.” [Id. (citation omitted).]

        The trial court held a hearing on defendant’s motion for a new trial. Defendant testified
at the hearing that the fact that he was a fourth habitual offender was mentioned around the time
of the preliminary examination in the district court, but was not discussed after that time.
Neither former defense counsel nor current defense counsel informed defendant that a habitual
offender notice had been filed. Former defense counsel advised defendant that the minimum
sentence guidelines range was 29 to 57 months and that he should accept the prosecution’s plea
offer. Former defense counsel told defendant that “probably five years is what [he] was going to
get.” Defendant asked defense counsel before sentencing what he thought the maximum
sentence would be. Defense counsel said he would talk to the judge, but never returned to talk
with defendant. Defendant testified that he believed he would have accepted the plea offer had
he known about the fourth habitual offender sentence enhancement. He explained that he had
studied the issue and knew that a habitual offender enhancement would have raised the minimum
sentencing guidelines range. Defendant also acknowledged that the warrant request stated,
“Hab-fourth.” Defendant did not accept the plea offer because he was afraid that the parole
board would “flop” him with regard to an earlier conviction because he had been released from
confinement only 77 days before the incident at issue in the present case. Defendant denied
committing unarmed robbery, but admitted that he committed retail fraud.

       According to defendant, former defense counsel told him that the detective working on
the case said that the video recording did not depict the incident. Defendant claimed that he
would not have gone to trial if he had known what the video recording depicted. However,
defendant also acknowledged that the video recording did not show him stealing anything.

       Defense counsel testified that he was not aware of when he received notice of the
prosecution’s intent to seek a fourth habitual offender sentence enhancement. Defense counsel
advised defendant of the minimum sentencing guidelines range and of the plea offer. However,
defense counsel testified that he never informed defendant that he would only serve five years in
prison. Defense counsel recalled that the minimum sentencing guidelines range began at 29
months’ imprisonment. Defense counsel did not see anything that could be characterized as
unarmed robbery on the video recording. However, he stated that he did not tell defendant that
there was nothing on the video recording. He could not recall exactly what he told defendant
regarding the video.

       Former defense counsel testified that the prosecution did not provide him with a habitual
offender notice. However, he acknowledged that he read the prosecutor’s file, which contained a
fourth habitual offender notice, and informed defendant of the contents of the file. He also
informed defendant of the charges, including the fact that defendant was charged as a fourth
habitual offender, before the arraignment on the information. He testified that he informed
defendant of the prosecution’s plea offer. He also told defendant that the minimum sentencing
guidelines range began at 27 months’ imprisonment and that defendant could face life in prison
if he did not accept the plea offer. Former defense counsel insisted that he did not inform

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defendant that the most time he could spend in prison would be five years. Former defense
counsel told defendant that the manager of the CVS Pharmacy told him that the video recording
did not show the incident. Defendant did not believe him.

        The trial court noted during the evidentiary hearing that the complaint and warrant both
contained a “habitual-fourth” notice. The trial court also pointed out that there was a felony
information from the district court in the lower court record, which was not time-stamped. The
trial court noted that the district judge had stated on the record at the preliminary examination
that defendant was “charged with habitual offender-fourth offense notice.” In addition,
defendant’s former attorney noted that he advised defendant that he was being charged as a
fourth habitual offender. The court stated that even defendant admitted that the habitual offender
issue was discussed at the preliminary hearing. Thus, the court concluded that defendant was
aware of the fourth habitual offender notice. The trial court found that there was no evidence
that either attorney advised defendant that he would be sentenced to five years in prison. The
court also found that neither attorney had advised defendant that the video recording showed
nothing. The court explained that it was not clear that defendant would have accepted the plea
offer. Thus, the trial court denied defendant’s motion.

        The trial court did not abuse its discretion by denying defendant’s motion for a new trial.
Defense counsel testified at the hearing that he told defendant about the minimum sentencing
guidelines range and the plea offer. Former defense counsel testified that he told defendant of
the charges against him, including the fact that defendant was charged as a fourth habitual
offender, before the arraignment on the information. He also informed defendant of the plea
offer. Furthermore, defense counsel and former defense counsel both denied telling defendant
that he could only spend a maximum of five years in prison. Thus, according to the testimony of
defense counsel and former defense counsel, defendant was informed of the plea offer, the
potential minimum sentence, and the prosecution’s intent to seek a sentence enhancement.
Defendant was properly informed of the plea offer, Frye, 566 US at ___; 132 S Ct at 1408, and
we perceive no clear error in the trial court’s findings, Russell, 297 Mich App at 715.

        In addition, defendant fails to show prejudice. We note that it is unclear whether the trial
court would have approved the terms of the plea offer. At any rate, however, defendant has not
established that he would have accepted the offer. During the hearing, defendant testified that he
would have accepted the plea offer had he known about the fourth habitual offender sentence
enhancement notice. However, defendant also testified that his reason for not accepting the plea
offer was that he was afraid that the parole board would “flop” him with regard to an earlier
conviction because he had been released from confinement only 77 days before the incident in
question. Thus, defendant’s reason for rejecting the plea offer did not involve the fourth habitual
offender sentence enhancement. In addition, defendant continued to maintain his innocence with
regard to the unarmed robbery conviction during the hearing, which indicates that he would not
have accepted the plea offer. Therefore, defendant fails to show prejudice. See Douglas, 496
Mich at 592.

       Additionally, defendant’s argument that defense counsel and former defense counsel
were ineffective for telling him that the prosecution’s video evidence did not show anything
fails. Defense counsel testified at the hearing that he did not see anything that could be
characterized as unarmed robbery on the video recording from the CVS Pharmacy, but he did not

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tell defendant that there was nothing on the video. In addition, Larinda Douglas, the shift
supervisor of the CVS Pharmacy during the time of the incident, testified regarding the contents
of the video recording. The video recording did not depict defendant removing any items from
the shelves and putting them into his pants. Defendant also acknowledged that the video
recording did not show him stealing anything. Therefore, defense counsel’s performance was
not deficient because he was correct that the video recording did not depict unarmed robbery,
and he did not tell defendant that the video showed nothing. See Trakhtenberg, 493 Mich at 51;
see also People v Harverson, 291 Mich App 171, 177; 804 NW2d 757 (2010) (describing the
elements of unarmed robbery).

        Furthermore, defendant fails to show how former defense counsel’s statement regarding
the video recording was incorrect. First, former defense counsel conveyed to defendant that the
manager of the CVS Pharmacy told him that the incident took place outside of the area
encompassed by the video recording. Former defense counsel did not come to an independent
conclusion on the issue, but rather informed defendant of what he had heard during the
preliminary examination. Second, according to defense counsel, the video recording did not
depict unarmed robbery. According to Douglas, the video recording did not show defendant
taking items off the shelves and putting them into his pants. Defendant himself acknowledged
that the video recording did not show him stealing anything. Therefore, former defense
counsel’s conduct did not fall below an objective standard of reasonableness. See Trakhtenberg,
493 Mich at 51. Finally, former defense counsel testified at the hearing that defendant did not
believe that the video did not show anything. Therefore, there is no reasonable probability that,
but for defense counsel’s and former defense counsel’s statements regarding the video, the result
of the trial would have been different since defendant did not rely on the statements to his
detriment. See id.

        Additionally, defense counsel and former defense counsel were not ineffective for failing
to object to the prosecution’s habitual offender notice. As noted above, the prosecution provided
defendant with notice of its intent to seek a fourth habitual offender sentence enhancement.
Therefore, defense counsel and former defense counsel did not render ineffective assistance
because an objection would have been futile. See Ericksen, 288 Mich App at 201. For the
reasons stated above, defendant’s ineffective assistance of counsel claim fails.

         Finally, defendant argues that his convictions for unarmed robbery and second-degree
retail fraud violate double jeopardy. We disagree.

        A defendant preserves the issue of double jeopardy by raising an objection to his or her
convictions as a violation against double jeopardy in the trial court. See People v Meshell, 265
Mich App 616, 628; 696 NW2d 754 (2005). Defendant failed to object to his convictions as a
violation of double jeopardy in the trial court. Therefore, the issue is unpreserved. See id. We
review an unpreserved claim of double jeopardy for plain error affecting the defendant’s
substantial rights. People v McGee, 280 Mich App 680, 682; 761 NW2d 743 (2008).

       The Double Jeopardy Clause of the United States Constitution protects a defendant
against “ ‘(1) multiple prosecutions for the same offense after acquittal or conviction; and (2)
multiple punishments for the same offense.’ ” People v Duenaz, 306 Mich App 85, 105; 854
NW2d 531 (2014) (citation and emphasis omitted); see also US Const, Am V; Const 1963, art 1,

                                               -6-
§ 15. Unless the Legislature has expressed its intent for multiple punishments, this Court applies
the “same elements” test from Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L
Ed 306 (1932), to determine whether a defendant’s convictions violate double jeopardy. Duenaz,
306 Mich App at 106. “The Blockburger test looks at the statutory elements of the offenses and
asks whether each offense requires proof of a fact that the other does not.” Id.

       In order to be convicted of unarmed robbery, “a defendant must (1) feloniously take the
property of another, (2) by force or violence or assault or putting in fear, and (3) be unarmed.”
Harverson, 291 Mich App at 177. To convict defendant of second-degree retail fraud, the
prosecution was required to prove:

               While a store is open to the public, [a person] alters, transfers, removes
       and replaces, conceals, or otherwise misrepresents the price at which property is
       offered for sale, with the intent not to pay for the property or to pay less than the
       price at which the property is offered for sale, if the resulting difference in price is
       less than $200.00. [MCL 750.356d(4)(a).]

        Defendant’s convictions do not violate the constitutional protection against double
jeopardy because each offense required proof of a fact that the other did not. For unarmed
robbery, the prosecution was required to prove that defendant committed the taking by force,
violence, assault, or putting in fear. Harverson, 291 Mich App at 177. This element was not
required to convict defendant of second-degree retail fraud. See MCL 750.356d(4)(a). In
addition, the crime of second-degree retail fraud requires proof that the defendant took property
from a store open to the public, or the immediate area surrounding the store. Id. The
prosecution was not required to prove this element for unarmed robbery. See Harverson, 291
Mich App at 177. Thus, each offense required proof of a fact that the other did not. See Duenaz,
306 Mich App at 106. We acknowledge that there is a similarity between the proofs offered for
each offense in this case. However, this Court has clarified that substantial overlap between the
prosecution’s proofs in establishing the crimes is not enough to give rise to a double-jeopardy
violation. See McGee, 280 Mich App at 685. Defendant’s convictions do not violate the
constitutional prohibition against double jeopardy.

       Affirmed.

                                                              /s/ Karen M. Fort Hood
                                                              /s/ Kathleen Jansen
                                                              /s/ Michael F. Gadola




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