                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 8, 2017
               Plaintiff-Appellee,

v                                                                    No. 333288
                                                                     Ingham Circuit Court
JONATHON LEDALE PURNELL,                                             LC No. 15-000957-FH

               Defendant-Appellant.


Before: CAVANAGH, P.J., and METER and M. J. KELLY, JJ.

PER CURIAM.

        Defendant appeals his conviction, following a jury trial, of assault with intent to do great
bodily harm less than murder (AWIGBH), MCL 750.84. The trial court sentenced defendant as
a third-offense habitual offender, MCL 769.11, to serve 10 to 20 years in prison. Defendant’s
conviction resulted from his assault on another prisoner, Mark Carpenter, while residing at the
Ingham County Jail awaiting disposition of a previous unrelated charge. Defendant appeals as of
right. We affirm defendant’s conviction but remand for a redetermination regarding whether
consecutive sentencing should apply.

        Defendant argues that the trial court erred in denying his request to instruct the jury on
lesser included offenses, that the trial court issued an unreasonable sentence, that the trial court
erred in basing its sentence on the mistaken belief that a consecutive sentence was mandatory,
that defendant’s due process rights were violated by the prosecutor’s delay in charging him, and
that defendant’s trial counsel provided ineffective assistance. We agree that the trial court
mistakenly based its sentence on a conclusion that a consecutive sentence was mandatory, but
disagree with defendant’s other claims.

        Defendant first argues that the trial court erred in denying his motion to instruct the jury
on lesser included offenses. Although, in general, this Court reviews claims of erroneous jury
instructions de novo, “[t]he determination whether a jury instruction is applicable to the facts of
the case lies within the sound discretion of the trial court.” People v Heikkinen, 250 Mich App
322, 327; 646 NW2d 190 (2002). “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) (quotation marks and citation omitted).

       A defendant has the right to “a properly instructed jury . . . .” People v Mills, 450 Mich
61, 80; 537 NW2d 909, mod 450 Mich 1212 (1995). “[J]ury instructions must not exclude
                                                -1-
consideration of material issues, defenses, and theories for which there is supporting evidence.”
People v Kurr, 253 Mich App 317, 328; 654 NW2d 651 (2002). Defendant argues that the trial
court should have granted his motion to instruct the jury regarding the lesser offenses of assault
and battery, and aggravated assault. MCL 768.32(1) permits instructions on necessarily included
lesser offenses. People v Apgar, 264 Mich App 321, 326; 690 NW2d 312 (2004). Such an
instruction is appropriate where the lesser offense is necessarily included in the greater offense
and a rational view of the evidence would support such an instruction. People v Mendoza, 468
Mich 527, 541; 664 NW2d 685 (2003); People v McGhee, 268 Mich App 600, 607; 709 NW2d
595 (2005).

        The elements of AWIGBH are “(1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm less than
murder.” MCL 750.84; People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014)
(quotation marks and citation omitted). A defendant commits an assault when there is “an
attempt to commit a battery or an unlawful act that places another in reasonable apprehension of
receiving an immediate battery.” People v Meissner, 294 Mich App 438, 453-454; 812 NW2d
37 (2011) (quotation marks and citation omitted). A battery is “an intentional, unconsented and
harmful or offensive touching of the person of another. . . .” Id. at 454 (quotation marks and
citation omitted). According to MCL 750.81a(1), an aggravated assault is a misdemeanor that
occurs where “a person [] assaults an individual without a weapon and inflicts serious or
aggravated injury upon that individual without intending to commit murder or to inflict great
bodily harm less than murder . . . .”

        Initially, we note that defendant admits that aggravated assault is a cognate lesser offense
of AWIGBH (it has an element not included in AWIGBH). Defendant cites outdated case law in
stating that an instruction on aggravated assault was warranted. The Michigan Supreme Court
has ruled that MCL 768.32(1) permits instruction only on necessarily included lesser offenses.
Mendoza, 468 Mich 533.

        Assault and battery, MCL 750.81, is clearly a necessarily included lesser offense of
AWIGBH. Thus, a lesser-included offense instruction would have been appropriate if “a rational
view of the evidence would support such an instruction.” Mendoza, 468 Mich at 541. The
evidence must be sufficient, “more than a modicum,” that defendant could have been convicted
of the lesser offense. See People v Cheeks, 216 Mich App 470, 479-480; 549 NW2d 584 (1996).

         The intention of the defendant is what “distinguishes the misdemeanors, simple assault
and aggravated assault,” from the felony, AWIGBH. People v Van Diver, 80 Mich App 352,
356; 263 NW2d 370 (1977). The intent to do great bodily harm less than murder is “an intent to
do serious injury of an aggravated nature.” People v Stevens, 306 Mich App 620, 628; 858
NW2d 98 (2014) (quotation marks and citations omitted). Here, defendant testified that he
“didn’t try to hurt [Carpenter], like, his eyesight or -- none of that stuff.” However, when
evaluated with the evidence as a whole, this testimony was not “more than a modicum” of
evidence that defendant did not intend to commit serious harm against Carpenter and, instead,
intended only to place him in reasonable apprehension of receiving an immediate battery, or to
inflict less than serious injury of an aggravated nature. Even though defendant stated that he did
not mean to seriously harm Carpenter, he explained to a police officer that because he did not get
paid for a gambling debt, he punched Carpenter, Carpenter got immediately knocked out, and

                                                -2-
defendant then continued to punch him. Defendant reported at trial that he wished to take the
first swing to get the advantage. Defendant denied at trial that Carpenter immediately became
unconscious, but he admitted that he kicked Carpenter in the head after Carpenter was on the
ground. Corrections Officer James Matthews observed defendant punch and kick a motionless
Carpenter while standing over him, and then take a couple steps away and return to kick
Carpenter in the head. Corrections Officer Matthew Powell witnessed defendant initiate
punching Carpenter in the face, causing Carpenter to fall to the ground against a glass barrier,
where defendant continued to hit a bleeding and immobilized Carpenter in the head with his fist
and then kicked him in the head. Carpenter sustained numerous serious injuries, including a
detached retina.

       A defendant’s intent may be inferred “from his words or from the act, means, or the
manner employed to commit the offense.” People v Hawkins, 245 Mich App 439, 458; 628
NW2d 105 (2001) (citation omitted). The injuries sustained by the victim are also relevant.
People v Dillard, 303 Mich App 372, 378; 845 NW2d 518 (2013), reversed on other grounds
500 Mich 14 (2017). The evidence here indicated that defendant’s intent was to seriously injure
Carpenter. Any rational view of the evidence did not support an instruction on simple assault
and battery, and we find no basis for reversal.

        Defendant also argues that he was denied his constitutional right to present a defense
because the jury was precluded from considering his argument that he did not intend to harm
Carpenter. The United States Constitution provides criminal defendants with the right to present
a complete defense. US Const, Ams VI, XIV; People v King, 297 Mich App 465, 473; 824
NW2d 258 (2012). “Instructional errors that directly affect a defendant’s theory of defense can
infringe a defendant’s due process right to present a defense.” Kurr, 253 Mich App at 326-327.
Here, defendant was not able to ask the jury to convict him of a lesser offense because a lesser
offense instruction was not warranted, but the jury instructions did not prevent defendant from
asserting a defense that he did not intend to harm Carpenter. There is no basis for reversal.

        Next, defendant argues that the trial court sentenced him to a disproportionately long
prison term. “A sentence that departs from the applicable guidelines range will be reviewed by
an appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). “Resentencing will be required when a sentence is determined to be unreasonable.” Id.

        The reasonableness of a sentence is determined by evaluating whether it violates the
principle of proportionality, which requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense and the offender.
People v Steanhouse, 313 Mich App 1, 45; 880 NW2d 297 (2015), reversed in part on other
grounds ___ Mich ___ (2017); People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990).

        After adjusting the sentencing variables, the trial court calculated that the advisory
guidelines range for defendant’s minimum sentence was 29 to 85 months, and the statutory
maximum was 20 years. Before issuing a sentence of 120 months to 240 months, the trial court
stated:

              Well, sir, I only have the power that the Legislature gave to me and the
       voters put me here so that we have a safe community. You were already

                                              -3-
       incarcerated when this occurred. You have no regard for human life. You have
       no regard for basic human dignity. There is a big difference between self defense
       and beating the crap out of somebody so violently that they need multiple
       surgeries and are blind. You don’t kick someone when they’re down. You don’t
       fight in prison. You don’t make an unsafe community or unsafe jail or prison.

               You want mercy so that you can go raise your children. Well, sir, you
       harmed someone else’s child. You have made an unsafe community for even
       your children because there are a thousand other people just like you, and how
       would you like it if someone did that to your child behind bars or on the street, it
       doesn’t matter, a human is a human. We treat all humans with dignity, with
       respect. We don’t beat them to a pulp and watch them bleed. We don’t get that
       angry.

         Defendant argues that the sentence was disproportionate because he had no history of
violent criminal actions, and the sentencing guidelines took into consideration the seriousness of
the injuries to Carpenter because they were included in the scoring of offense variable (OV) 3,
dealing with victim injuries. It is true that the Court in Milbourn, 435 Mich at 660, cautioned,
“A departure from the recommended range in the absence of factors not adequately reflected in
the guidelines should alert the appellate court to the possibility that the trial court has violated the
principle of proportionality and thus abused its sentencing discretion.”1 However, even though
the trial court mentioned the extent of Carpenter’s injuries in its reasoning, it did not solely rely
on the injuries as the basis for the sentence. Rather, the trial court provided several reasons to
justify its sentence, most notably, the disregard for humanity that defendant exhibited during the
assault. Defendant argues that this is a characteristic of most crimes. However, the trial court
was addressing the specific behavior of defendant and how it demonstrated his lack of regard for
human life and dignity.

        The trial court also highlighted that defendant was incarcerated at the time he committed
the crime. The trial court’s comments reasonably imply that the court concluded that defendant
had a poor potential for rehabilitation, given that he was in a controlled environment and still
committed the crime. The trial court also highlighted the egregious nature of the assault.
Defendant decided to act aggressively to gain the advantage in the confrontation and continued
to brutally assault a defenseless individual by punching and kicking the head area, as discussed
above, in an environment that existed for safety and rehabilitation. The sentence was reasonable.

        Next, defendant argues that the trial court erred in issuing a consecutive sentence. At
sentencing, the prosecutor argued that it was mandatory, pursuant to MCL 768.7a(1), that the
trial court order defendant’s sentence to be served consecutively to a sentence he was serving in
an unrelated case. The trial court then ordered a consecutive sentence and no jail credit.
However, the prosecutor now concedes that defendant was not serving a sentence at the time he


1
  We note that, in the Supreme Court’s recent decision in Steanhouse, the Court indicated that
proportionality is not measured “by reference to deviations from the guidelines . . . .”
Steanhouse, ___ Mich at ___.


                                                  -4-
assaulted Carpenter, but was in jail awaiting the disposition of charges pending against him in an
unrelated criminal case and, thus, MCL 768.7a(1) did not apply.

       Instead, MCL 750.506a applied to the circumstances under which the trial court
sentenced defendant. MCL 750.506a(2) provides:

                 If a person, lawfully detained in a jail or other place of confinement
         established by law, and awaiting arraignment, examination, trial or sentencing for
         any crime or offense, commits a subsequent offense defined in sections 81 to 86,
         if convicted of the crime or offense for which he was detained at the time he
         committed the subsequent offense, any sentences imposed for conviction of the
         prior offense and for conviction of the subsequent offense under sections 81 to 86
         may run consecutively.

Because defendant was awaiting trial when he committed the AWIGBH, MCL 750.84, an
offense defined in sections 81 to 86,2 the trial court had the discretion to sentence defendant
consecutively. Thus, the case is remanded so that the trial court may consider whether to issue a
consecutive or concurrent sentence, and whether defendant is entitled to credit for the days that
he had already served before sentencing.

       Next, defendant argues in a Standard 4 brief that the prosecutor violated defendant’s due
process rights by delaying charging him with a crime following his arrest. As an unpreserved
claim, review is for plain error affecting substantial rights. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).

       Due process guarantees protect a defendant from prearrest or preindictment delay after
the defendant committed an offense. People v Cain, 238 Mich App 95, 109; 605 NW2d 28
(1999). “A prearrest delay that causes substantial prejudice to a defendant’s right to a fair trial
and that was used to gain tactical advantage violates the constitutional right to due process.”
People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014).

        Defendant was in jail for transporting a prostitute when he assaulted Carpenter on
December 21, 2014. A complaint and felony warrant for AWIGBH were issued on March 3,
2015, and the preliminary examination was held on October 8, 2015, after being rescheduled
three times. Defendant waived his circuit court arraignment on October 14, 2015, and after a
December pretrial conference, his trial began on March 7, 2016.

       Thus, there were 72 days between defendant’s arrest on December 21, 2014, and the
issuance of a felony warrant, 291 days between the arrest and the preliminary examination, and
297 days between the arrest and his waiver of arraignment in circuit court. A defendant must
demonstrate “actual and substantial prejudice to his right to a fair trial” in order to establish a due
process violation because of preindictment delay. People v Musser, 259 Mich App 215, 220;
673 NW2d 800 (2003). Here, defendant argues that the delay could have caused a loss of


2
    MCL 750.81 to MCL 750.86.


                                                 -5-
memory of the details of the events by witnesses, including himself. However, defendant does
not offer any specific instance of memory loss, and a “general claim that the memories of
witnesses have suffered is insufficient to demonstrate prejudice.” Id. Defendant also argues that
the delay prejudiced him because witnesses may have gone missing. However, defendant does
not specify any witnesses that were missing, and “a defendant cannot merely speculate generally
that any delay resulted in lost memories, witnesses, and evidence . . . .” Woolfolk, 304 Mich App
at 454.

        Defendant also argues that the prosecutor used the delay in order to enhance his sentence
from the conviction in the preceding unrelated case, and to gain an advantage in plea
negotiations. However, defendant’s conviction that resulted in an enhanced sentence was from
an offense that occurred more than nine months before the AWIGBH. Because the prior charge
was in the process of adjudication at the time of the AWIGBH, it was very likely to have been
completed before the disposition of the instant case, despite any delay. The likelihood of it being
available to use for enhancement suggests that this case was not purposefully delayed to take
advantage of its availability. Defendant has not established any actual prejudice from any
delays, and because the reason for the delay is not clear given the lack of preservation, he has not
established plain error.

        Next, defendant argues that his trial counsel provided ineffective assistance in a variety of
instances. Claims of ineffective assistance of counsel that are unpreserved are limited to review
for errors apparent on the record. People v Unger (On Remand), 278 Mich App 210, 253; 749
NW2d 272 (2008). The constitutional question of whether an attorney’s ineffective assistance
deprived a defendant of his Sixth Amendment right to counsel is reviewed de novo. Id. at 242.

        A defendant’s right to counsel is guaranteed by the United States and Michigan
Constitutions. US Const, Am VI; Const 1963 art 1, § 20. This right to counsel encompasses the
right to the effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d
563 (2007). In order to succeed on a claim of ineffective assistance of counsel, a defendant must
show (1) that counsel’s performance was deficient and (2) that counsel’s deficient performance
prejudiced the defense. People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007).
“[E]ffective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).

       Defendant first argues that his trial counsel failed to adequately investigate witnesses to
defendant’s fight with Carpenter.

        Failure to make a reasonable investigation can constitute ineffective assistance of
counsel. McGhee, 268 Mich App at 626. In order to overcome the presumption of sound trial
strategy, the defendant must show that trial counsel’s failure to prepare for trial or interview
witnesses resulted in counsel’s ignorance of valuable evidence that would have substantially
benefited the accused. People v Bass (On Rehearing), 223 Mich App 241, 252-253; 581 NW2d
1 (1997).

        Defendant argues that his trial counsel should have interviewed and called other
witnesses. He mentions three specific witnesses. However, it does not appear that defendant’s
trial counsel was unaware of this evidence because he informed the trial court that he could call

                                                -6-
the three witnesses as defense witnesses if necessary. Because defendant does not specify what
these three witnesses would have said, and it appears that trial counsel was aware of them and
their possible testimony, defendant has not demonstrated that the failure to call them was not a
matter of trial strategy as opposed to the failure to investigate or present a defense.

       Defendant also argues that his counsel failed to interview a witness to the fight who
would have testified that Carpenter taunted defendant for his refusal to pay him and gestured to
defendant as he asked guards to open his cell so they could fight, and that Carpenter reached
towards defendant’s legs while on the ground and threatened him. Defendant provided this
Court with an affidavit from the witness.

        The failure to call witnesses only constitutes ineffective assistance of counsel if it
deprives the defendant of a substantial defense. People v Dixon, 263 Mich App 393, 398; 688
NW2d 308 (2004). “A substantial defense is defined as one that might have made a difference in
the outcome of the trial.” In re Ayres, 239 Mich App 8, 22; 608 NW2d 132 (1999). Defendant
was not denied a defense by the absence of this witness because defendant presented similar
testimony that Carpenter taunted him and fought him from the ground. In addition, this witness
stated in his affidavit that he did “not believe [defendant] intended to hit” Carpenter, whereas
defendant himself testified that he “swung” on Carpenter in order to prevent Carpenter from
having an “advantage” over defendant. Given the extremely strong case against defendant (with
testimony from the guards and from Carpenter), we cannot find that defendant was deprived of a
substantial defense by the absence of a witness who might have presented cumulative or
contradictory testimony.

        Next, defendant argues that trial counsel improperly advised him regarding plaintiff’s
plea offer. A defendant’s right to the effective assistance of counsel includes the plea-bargaining
process. People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). “Defense counsel
must explain to the defendant the range and consequences of available choices in sufficient detail
to enable the defendant to make an intelligent and informed choice.” People v Jackson, 203
Mich App 607, 614; 513 NW2d 206 (1994). In the context of a plea offer, mistaken advice from
trial counsel regarding the sentence a defendant could receive at trial may constitute deficient
performance. Douglas, 496 Mich at 593.

        Here, the prosecutor stated before trial that he had offered defendant a minimum sentence
of 24 months with consecutive sentencing. Defendant reports that his trial counsel informed him
at a pretrial conference that the prosecutor had offered an 18-month consecutive term and that his
counsel believed that he could, at most, be convicted of an aggravated assault misdemeanor.
Defendant argues that he rejected the plea offer because it included consecutive sentencing. It is
true that defendant’s trial counsel was mistaken that a statute required a consecutive sentence.
However, the prosecutor extended the offer that included consecutive sentencing and also
believed, as did the trial court, that consecutive sentencing was mandatory. Even had
defendant’s trial counsel challenged the prosecutor’s offer of consecutive sentencing, there was
no indication that the prosecutor would have offered concurrent sentencing, particularly when
defendant was already serving a 66-month sentence for transporting a prostitute. It is not likely
that the prosecutor would offer a sentence that would not have extended defendant’s time in
prison. Additionally, it is questionable whether the trial court would have accepted a deal that
resulted in no additional prison time after defendant completed his previous sentence. There is

                                                -7-
insufficient evidence that the advice provided by defendant’s trial counsel during plea
negotiations prejudiced defendant.

        Defendant argues that the performance of his trial counsel was deficient because his trial
counsel only briefly met with him twice before trial. It should be noted that defendant requested
a new attorney at a December 16, 2015, hearing, and defendant’s trial counsel was assigned to
defendant’s case in January 2016. The trial court granted a motion by defendant’s trial counsel
for reimbursement so that he could travel to Thumb Correctional Facility to prepare for trial and
provide trial clothing to defendant the week before the trial. Defendant’s argument is largely
predicated on the failure of his trial counsel to present what defendant believed were exculpatory
witnesses, as discussed above. We have already discussed these arguments and have rejected
them. In addition, defendant does not explain how further meetings between counsel and himself
would have changed the outcome of the proceedings.

       Defendant also argues that counsel was ineffective for failing to challenge the pre-
indictment delay, but once again fails to demonstrate how this prejudiced him.3

       Defendant’s conviction is affirmed but this case is remanded for a redetermination
regarding whether consecutive sentencing should apply. We do not retain jurisdiction.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ Patrick M. Meter
                                                            /s/ Michael J. Kelly




3
  We reject defendant’s renewed request for a remand for an evidentiary hearing regarding
ineffective assistance of counsel.


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