                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 6, 2018
               Plaintiff-Appellee,

v                                                                   No. 336702
                                                                    Wayne Circuit Court
KEVIN BARNARD HICKS,                                                LC No. 16-007227-01-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and STEPHENS, JJ.

PER CURIAM.

       Defendant appeals as of right his bench-trial convictions of carjacking, MCL 750.529a,
and two counts of armed robbery, MCL 750.529. Defendant was sentenced as a fourth-offense
habitual offender, MCL 769.12, to 30 to 45 years’ imprisonment for each of the three
convictions. We affirm.

        This case arose from a carjacking at Universal Coney Island in Detroit on July 29, 2016.
Rashia Randle and Dominque Scott were in Rashia’s 2010 Buick LaCrosse in the parking lot
when a white van parked behind her car, blocking her in. Randle testified that she saw defendant
in the driver’s seat of the white van in her rearview mirror. Then a passenger of the white van
stepped out holding a gun, approached Randle’s Buick, and demanded money and the vehicle.
Randle and Scott left their personal belongings in the Buick and ran for cover. Randle ran in
front of the white van and saw defendant in the driver’s seat. Defendant reversed the white van
and exited the parking lot, and the passenger exited the lot with Randle’s Buick. Hours later,
after a police chase, defendant and another person were found fleeing from Randle’s Buick.
Police chased defendant by foot and had to use a taser and pepper spray to place him under
arrest. Defendant was found guilty of carjacking and armed robbery under a theory of aiding and
abetting.

                        I. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant first argues on appeal that he was the denied effective assistance of counsel at
trial because defense counsel failed to (1) object to the admission of the statement made to police
because it was not written or signed by defendant; (2) move to strike Randle’s faulty lineup and
in-court identification of defendant; and (3) call a codefendant, Thomas Pollard, or alibi
witnesses to testify. We disagree.


                                                -1-
        Claims of ineffective assistance of counsel are mixed questions of law and fact. People v
Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). “A judge must first find the facts, then must
decide whether those facts establish a violation of the defendant’s constitutional right to the
effective assistance of counsel.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676
(2011) (quotation marks and citation omitted). This Court reviews the trial court’s findings of
fact for clear error and reviews questions of constitutional law de novo. People v Trakhtenberg,
493 Mich 38, 47; 826 NW2d 136 (2012). “Clear error exists if the reviewing court is left with a
definite and firm conviction that the trial court made a mistake.” Armstrong, 490 Mich at 289.

       To establish ineffective assistance of counsel, a defendant must show: “(1) counsel’s
performance was below an objective standard of reasonableness under prevailing professional
norms and (2) there is a reasonable probability that, but for counsel’s error, the result of the
proceedings would have been different. A defendant must also show that the result that did
occur was fundamentally unfair or unreliable.” People v Lockett, 295 Mich App 165, 187; 814
NW2d 295 (2012) (citation omitted). Effective assistance of counsel is strongly presumed,
People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012), and there is a presumption that
counsel engages in “sound trial strategy,” People v Horn, 279 Mich App 31, 40; 755 NW2d 212
(2008). The defendant has the burden of proof, and may overcome this presumption by showing
that counsel failed to perform an essential duty and that this failure was prejudicial to the
defendant. People v Hampton, 176 Mich App 383, 385; 439 NW2d 365 (1989). The “benefit of
hindsight” may not be used to judge counsel’s performance. People v Unger, 278 Mich App
210, 243; 749 NW2d 272 (2008).

        Defense counsel has wide discretion regarding strategy at trial “because counsel may be
required to take calculated risks to win a case.” People v Heft, 299 Mich App 69, 83; 829 NW2d
266 (2012). This Court will not substitute its judgment for that of defense counsel concerning
matters of trial strategy. See People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).
The fact that a trial strategy fails does not automatically mean that its use constitutes ineffective
assistance of counsel. People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008).

                      A. ADMISSION OF DEFENDANT’S STATEMENT

         Defendant alleges that defense counsel was ineffective for failing to object to the
admission of a statement form filled out by Officer Clive Stewart regarding his interview with
defendant. Defendant argues that it was improperly admitted because defendant did not write or
sign it and it misrepresented his comments to the police officer.

        Officer Stewart testified at trial that he interviewed defendant. Before the discussion,
defendant was advised of his Miranda1 rights, and defendant initialed and signed the waiver
form. Officer Stewart testified that there were no indications that defendant was under the
influence of drugs or alcohol at the time. Included in the statement form are defendant’s answers
to several questions asked by Officer Stewart. Defendant said that a codefendant had picked him
up to go buy drugs. Regarding what happened at the Coney Island, defendant said, “He pulled


1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                                -2-
up on them. I really don’t know what happened after that.” Defendant said, “he came to pick me
up in a vehicle. I don’t remember. I was under the influence of heavy alcohol and drugs.”
Defendant admitted getting into the vehicle that was carjacked at the Coney Island. When asked
why he got into the Buick when he knew that it was stolen, defendant responded, “[T]hat’s all I
remember about this incident.”

        Defendant alleges that defense counsel was ineffective for failing to object to the
admission of this evidence because defendant did not sign the document.2 But defendant fails to
provide any legal authority for the proposition that omission of his signature rendered the
document inadmissible. “It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority
either to sustain or reject his position. The appellant himself must first adequately prime the
pump; only then does the appellate well begin to flow.” People v Waclawski, 286 Mich App
634, 679; 780 NW2d 321 (2009) (quotation marks and citation omitted). Defendant additionally
argues that the statement form misrepresented what he said to Officer Stewart. But defendant
does not indicate how it did so. We will not make defendant’s arguments for him. Id.
Defendant has not met his burden of establishing ineffective assistance of counsel. Hampton,
176 Mich App at 385.

                       B. LINEUP AND IN-COURT IDENTIFICATIONS

        Defendant argues that defense counsel was ineffective for not moving to strike Randle’s
identification at the live lineup because she said, at the time, that she was only 40% sure of her
identification.3

        Defense counsel stipulated to the admission of the live lineup form that was completed
regarding Randle’s identification of defendant. He then attempted to impeach Randle based on
the inconsistencies between her preliminary-examination testimony and her testimony at trial,
specifically related to her identification of defendant. For example, counsel elicited that at the
preliminary examination, Randle testified that the passenger with the gun exited the white van
from the passenger side, but the surveillance video demonstrated that he came from the driver’s
side. Counsel then used the “40%” figure in closing argument to further call into question
Randle’s identification of defendant. In other words, rather than try to strike the lineup evidence
for being, as defendant puts it, “below a probable cause standard,” counsel used the witness’s




2
  Without specifically objecting, defense counsel did point out that defendant had refused to sign
the document. The court noted that this did not preclude admission.
3
 At trial, she testified that she was 100% sure that defendant was the man she saw in the white
van.


                                                -3-
uncertainty from the lineup to argue a case of mistaken identification. This was a trial strategy
that we will not second-guess. See Horn, 279 Mich App at 39.4

        Defendant also argues that defense counsel should have objected to Randle’s in-court
identification for lack of an independent basis. “The need to establish an independent basis for
an in-court identification arises where the pretrial identification is tainted by improper procedure
or is unduly suggestive.” People v McElhaney, 215 Mich App 269, 286; 545 NW2d 18 (1996).
Defendant has put forth no evidence or argument that the lineup procedure was improper or that
the lineup was unduly suggestive. In addition, “[t]he fact that the complainant’s initial
identification of defendant was tentative does not render her unequivocal identification at trial
inadmissible. Rather, this was a credibility issue that was properly before the [trier of fact] to
determine.” Id. at 287 (citation omitted).

                                          C. WITNESSES

       Lastly, defendant argues that his trial counsel was ineffective for failing to call various
witnesses to testify on defendant’s behalf.

        The decision to present evidence or call a witness to testify is a matter of trial strategy
that will not be second-guessed by this Court. Horn, 279 Mich App at 39. The failure to call a
witness constitutes ineffective assistance of counsel only when it deprives the defendant of a
“substantial defense.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012)
(quotation marks and citation omitted). “A defense is substantial if it might have made a
difference in the outcome of the trial.” People v Hyland, 212 Mich App 701, 710; 538 NW2d
465 (1995), vacated in part on other grounds 453 Mich 902 (1996).

        Defendant contends that he had four alibi witnesses who should have been called to
testify. He filed an affidavit stating that he was with four people at the time the crimes were
committed, but there is no indication regarding (1) whether these people would have been
willing to offer testimony or (2) what the specific content of their testimony would have been. In
these circumstances, defendant has not shown that he was deprived of a substantial defense.

        Defendant also contends that defense counsel should have called Pollard to testify,
because Pollard indicated that defendant was innocent of the crimes. However, in ruling on
defendant’s motion for a new trial, the trial court specifically stated that it would “not have
believed exculpatory evidence from Pollard . . . .”5 In these circumstances, defendant has not
established any outcome-determinative error. Id.




4
 Defendant appears to be making an argument that the pretrial lineup was “unduly suggestive,”
but he does not indicate how it was so, and we will not unravel his arguments for him. People v
Waclawski, 286 Mich App 634, 679; 780 NW2d 321 (2009).
5
    Pollard pleaded guilty in connection with the events surrounding the carjacking.


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                                 II. WAIVER OF JURY TRIAL

       Defendant next argues that his waiver of a jury trial was inadequate.

        To preserve most issues, a party must object below. People v Pipes, 475 Mich 267, 277;
715 NW2d 290 (2006). Defendant did not adequately raise this issue in the trial court.6
Therefore, this issue is unpreserved. Id. This Court reviews an unpreserved constitutional issue
for plain error affecting substantial rights. People v Walker, 273 Mich App 56, 65-66; 728
NW2d 902 (2006). The test is as follows:

       To avoid forfeiture under the plain error rule, three requirements must be met: 1)
       error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
       plain error affected substantial rights. The third requirement generally requires a
       showing of prejudice, i.e., that the error affected the outcome of the lower court
       proceedings. It is the defendant rather than the Government who bears the burden
       of persuasion with respect to prejudice. Finally, once a defendant satisfies these
       three requirements, an appellate court must exercise its discretion in deciding
       whether to reverse. Reversal is warranted only when the plain, forfeited error
       resulted in the conviction of an actually innocent defendant or when an error
       seriously affect[ed] the fairness, integrity or public reputation of judicial
       proceedings’ independent of the defendant’s innocence. [Id. at 66 (quotation
       marks and citations omitted).]

       A criminal defendant has a constitutionally guaranteed right to a jury trial. US Const,
Am VI; Const 1963, art 1, § 20. However, a defendant may waive his right to a jury trial. MCL
763.3; MCR 6.401. According to MCR 6.402(A), the trial court may not accept a defendant’s
waiver until he or she has the opportunity to consult with a lawyer. MCR 6.402(B) provides:

               Before accepting a waiver, the court must advise the defendant in open
       court of the constitutional right to trial by jury. The court must also ascertain, by
       addressing the defendant personally, that the defendant understands the right and
       that the defendant voluntarily chooses to give up that right and to be tried by the
       court. A verbatim record must be made of the waiver proceeding.

See also People v Godbold, 230 Mich App 508, 512; 585 NW2d 13 (1998). A defendant’s
waiver is presumptively valid if the trial court complied with MCR 6.402(B). People v Mosly,
259 Mich App 90, 96; 672 NW2d 897 (2003).

        The parties appeared on the day set for a jury trial, and instead, the court was informed
that defendant wanted to waive this right and have a bench trial. Defendant was represented by
counsel at the hearing. Defendant stated that he wanted a bench trial and he wanted it to start
right away, and he asked what the difference was between a bench trial and a jury trial. The trial


6
  We decline to consider defendant’s complaints at sentencing regarding the waiver as being
adequate to preserve the waiver issue.


                                                -5-
court informed defendant that, in a bench trial, there was no jury, and the judge would hear the
evidence and make a determination regarding defendant’s guilt. Although defendant stated, “I
don’t know nothing. I’m lost[,]” this was related to defendant’s assertion that he did not know
how long the trial would last. Defendant asked the court for a few minutes to speak to his
attorney, and the court obliged. Then defendant, under oath, stated that it was his signature on
the jury-trial waiver form, no one threatened him or promised him anything to waive his right to
a jury trial, and his waiver was done freely and voluntarily. The court specifically referred to
defendant “giv[ing] up [his] rights[.]” The waiver form signed by defendant and his attorney
provides:

       THE COURT FINDS:
       1. The defendant/juvenile has been arraigned and properly advised of the right to
       a jury trial.
       2. The defendant/juvenile has had an opportunity to consult with counsel.
       3. Waiver occurred in open court as required by law.

The form also states: “I fully understand that under the laws of this state I have a constitutional
right to a trial by jury.” Given all the circumstances, we find no plain error. Walker, 273 Mich
App at 66. Although defendant expressed some confusion, the trial court clarified the difference
between a bench trial and a jury trial to defendant. There is no indication that defendant’s waiver
was unknowing or involuntary.7

                                       III. SENTENCING

       Defendant argues that he received ineffective assistance of counsel because defense
counsel did not object to defendant being sentenced as a fourth-offense habitual offender even
though no notice of sentence enhancement was filed and no plea was taken or findings made
regarding defendant’s habitual-offender status.

         MCL 769.13(1) requires the prosecution to file written notice of its intent to seek
sentence enhancement based on habitual-offender status. “The notice may be personally served
upon the defendant or his or her attorney at the arraignment on the information charging the
underlying offense . . . .” MCL 769.13(2). The original felony information and the amended
felony information both contained the habitual-offender notice, and defendant makes no
assertion that he failed to receive the information. Defendant was arraigned on the information
on August 26, 2016, and the trial court noted at the arraignment that defendant was “hab four.”
Under the circumstances, there is no basis for concluding that defense counsel was ineffective
for failing to object on the basis of notice.




7
  Although defendant does not discuss this in the argument portion of his brief for this issue, we
note that, at sentencing, defendant asserted that defense counsel “promised” defendant that if he
chose a bench trial, defense counsel could “beat the case.” Defense counsel denied making such
a statement, and the trial court believed him.


                                                -6-
        Defendant also claims that counsel should have objected to defendant’s being sentenced
as a fourth-offense habitual offender because defendant did not plead to this status and no
findings regarding this status were made. MCL 769.13(4) and (6) provide a criminal defendant
the opportunity to challenge the accuracy or constitutional validity of any prior convictions used
for enhancement. “The defendant, or his attorney, shall be given an opportunity to deny, explain,
or refute any evidence or information pertaining to the defendant’s prior conviction or
convictions before sentence is imposed, and shall be permitted to present relevant evidence for
that purpose.” MCL 769.13(6). The burden of establishing a prima facie showing that a prior
conviction is inaccurate or constitutionally invalid lies with the defendant. MCL 769.13(6).
Defendant’s argument that he received ineffective assistance of counsel because defense counsel
failed to object to his fourth-offense habitual offender status is without merit, given that
defendant does not even argue on appeal that he was not in fact a fourth-offense habitual
offender. Moreover, defendant acknowledged his fourth-offense habitual offender status at
sentencing, stating, “You know, only thing I was doing was just trying to clear my name out the
whole situation because I do recognize that I’m a fourth habitual and I was just out there doing
good.” Defendant’s appellate argument is without merit.

        Additionally, defendant argues that he must be resentenced because his sentences were
unreasonable. Defendant was sentenced to concurrent sentences of 30 to 45 years’ imprisonment
for carjacking and two counts of armed robbery. Two offense variable (OV) scores were
corrected at sentencing, so his total OV score was 50 points. The sentencing guidelines range for
a fourth-offense habitual offender was 126 to 420 months’ imprisonment. Defendant’s minimum
sentence of 30 years’ imprisonment falls within the sentencing guidelines range. As stated in
People v Jackson, 320 Mich App 514, 527; 907 NW2d 865 (2017), a sentence within the
appropriate guidelines range is “presumptively proportionate . . . .” In addition, the Court in
People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016), reaffirmed the
continued application of the following language from MCL 769.34(10):

              If a minimum sentence is within the appropriate guidelines sentence range,
       the court of appeals shall affirm that sentence and shall not remand for
       resentencing absent an error in scoring the sentencing guidelines or inaccurate
       information relied upon in determining the defendant’s sentence.

Defendant does not argue on appeal that there was any error in scoring the guidelines or
inaccurate information relied upon during sentencing. 8 As such, there is no basis for
resentencing.




8
  Defendant reiterates his argument that he should not have been subject to an habitual-offender
enhancement, but that argument is without merit. Also, defendant objects that he received a
longer sentence than Pollard’s, but Pollard received the benefit of a plea bargain. The trial court
specifically mentioned the plea bargain as a justification for defendant’s receipt of a longer
sentence.


                                                -7-
Affirmed.



                  /s/ Kathleen Jansen
                  /s/ Patrick M. Meter
                  /s/ Cynthia Diane Stephens




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