            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   May 23, 2019
               Plaintiff­Appellee,                                 9:05 a.m.

v                                                                  No. 325883
                                                                   Mackinac Circuit Court
GARY MICHAEL TRAVER,                                               LC No. 2012­003474­FH

               Defendant­Appellant.



                                         ON REMAND

Before: GLEICHER, P.J., and SAWYER and M. J. KELLY, JJ.

PER CURIAM.

       This matter is once again before us, following a remand by the Supreme Court. People v
Traver, 502 Mich 23; 917 NW2d 260 (2018) (Traver II). In the original appeal, this Court
reversed defendant’s convictions for assault with a dangerous weapon, MCL 750.82, and
possession of a firearm during the commission of a felony, MCL 750.227b. People v Traver,
316 Mich App 588; 894 NW2d 89 (2016) (Traver I). The majority concluded that the trial court
erred by providing the jury with only written instructions on the elements of the offenses without
also reading the instructions to the jury, and that the written instructions were “hopelessly
incorrect” with respect to the felony­firearm charge. Id. at 591­592. Judge SAWYER dissented,
concluding that defendant waived any claimed error in the instructions by expressing satisfaction
with the instructions. Id. at 603 (SAWYER, J., dissenting). Judge SAWYER also rejected
defendant’s claim of ineffective assistance of counsel. Id. at 611.

       The Supreme Court, in lieu of granting leave, agreed with the dissent that defendant had
waived any issue of instructional error and remanded the matter to this Court to consider the
previously unaddressed arguments related to defendant’s claims of ineffective assistance of
counsel. 502 Mich at 43. In our prior opinion, we directed the trial court to hold a Ginther




                                               ­1­
hearing1 and to consider defendant’s claim that trial counsel was ineffective in not advising
defendant of the potential consequences of withdrawing his plea. 316 Mich App at 602­603.
Because the Supreme Court did not disturb this portion of our opinion, we remanded this matter
to the trial court for that purpose. People v Traver, unpublished order of the Court of Appeals
(7/20/2018).

         On remand, the trial court concluded that defendant was well­aware of the potential
consequences of withdrawing his plea. Following that remand, we now must address the
resolution of that issue, as well as the claims previously raised by defendant that trial counsel
was ineffective for (1) failing to call character witnesses, (2) failing to call a tow­truck driver to
testify, and (3) failing to retain an expert witness. Defendant also now raises a new claim that
counsel was ineffective for failing to move to quash the information. After further considering
these claims, we now affirm defendant’s convictions and sentences.

        A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law. People v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010). The trial
court’s factual findings are reviewed for clear error, while the ultimate constitutional issue is
reviewed de novo. Id.

        A defendant seeking relief based on a claim of ineffective assistance must show “(1) that
trial counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced the
defendant.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018). “Effective assistance is
presumed, and a defendant bears a heavy burden to prove otherwise.” Swain, 288 Mich App at
643. The measure of an attorney’s performance under the first prong of the analysis is “simply
reasonableness under prevailing professional norms.” Padilla v Kentucky, 559 US 356, 366; 130
S Ct 1473; 176 L Ed 2d 284 (2010) (citation omitted). “In examining whether defense counsel’s
performance fell below an objective standard of reasonableness, a defendant must overcome a
strong presumption that counsel’s performance was born from a sound trial strategy.” People v
Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012). “This Court does not second­guess
counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit of
hindsight.” People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).

        We turn first to the issue specifically mentioned by the Supreme Court in its opinion
remanding the matter to this Court. The Supreme Court briefly addressed the issue in a footnote
as follows:

                 The majority further erred by holding that it need not “resort to ineffective
         assistance of counsel principles to circumvent potential waiver issues . . . .”
         Traver, 316 Mich App at 601. In this case, defendant must establish a valid claim
         of ineffective assistance of counsel in order for him to be entitled to relief on his
         waived claims of instructional error. Defendant raised the claims of ineffective
         assistance in the Court of Appeals, but they were not addressed by the majority.


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



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       We decline to address them in the first instance and instead remand to the Court
       of Appeals for consideration of defendant’s arguments that defense counsel was
       constitutionally ineffective to the extent that defendant’s claims of instructional
       error were waived. [Traver, 502 Mich at 43 n 10.]

While the issue was not addressed in the majority opinion in the original appeal, Judge SAWYER
thoroughly discussed, and rejected, the claim of ineffective assistance of counsel as it relates to
the claims of instructional error in his dissenting opinion. Traver, 316 Mich App at 603­609
(SAWYER, J., dissenting). Moreover, defendant did not provide further argument on this issue in
his supplemental brief following remand. Accordingly, we now adopt Judge SAWYER’s
dissenting opinion as it relates to this issue and reject defendant’s claim.

       Turning next to the issue of the plea withdrawal, the trial court held the hearing on
remand and concluded that defendant was adequately advised on the potential consequences of
withdrawing his plea. The trial court concluded as follows:

                The principle [sic] argument by the Defendant in support of his
       ineffective assistance of counsel position was that he was never advised of the
       consequences of a conviction under the Weapons­Felony charge, if convicted.
       Attorney Hartman was adamant in his testimony at the Ginther Hearing, that he
       advised the Defendant of the “risk­reward” circumstances if he were to
       proceed to trial with an added count of Felony Firearm, and the consequences of
       a conviction being a mandatory two years in prison. The Court can, and does,
       confirm that the People advised the Defendant on the record that if the matter
       proceeded to trial, the Felony Firearm charge would be added to the
       Information. Despite Defendant’s testimony to the contrary, the Court is satisfied
       that this fact was known by the Defendant, as his testimony noted below
       demonstrates. As further testified by Attorney Hartman, it was “inconceivable”
       that this was not explained to the Defendant on more than one occasion. Attorney
       Hartman further testified at the Ginther Hearing that the Defendant led him to
       believe he was more interested than anything else in harvesting a large
       marijuana crop that would result in large payout. The Defendant denied this
       reasoning.

                                             * * *

                The Defendant’s first trial on the four­count information ended in a
       mistrial. For the Defendant to argue he didn’t understand the consequences of the
       Felony Firearm charge, given the facts, stretches credulity. Attorney Hickman,
       who conducted the trial which resulted in acquittal on two of the four counts,
       Carrying a Concealed Weapon (CCW) and Interfering with an Electronic Device,
       echoed the same sentiments of Attorney Hartman. Attorney Hickman was
       adamant that he advised the Defendant of the inherent risks in taking the matter to
       trial, but regardless of those efforts, the Defendant was adamant about having of
       [sic] his day in court. Further, the Defendant at the Ginther Hearing,
       acknowledged that he understood the benefit of the original plea bargain when he


                                                ­3­
       testified that, why would he risk prison or jail given the bargain he was offered.
       The Defendant testified as follows:

               “As far as good goes, it was—as Mr. Hartman explained it, a no­
       brainer. He says, if you got 80 percent chance of—this is how they explained it to
       me. You got 20 percent chance to lose. This is all you got to do. Call in
       probation and this, this, this. Is that worth a 20 percent chance, he says to me, to
       go to prison or to go to jail for whatever amount of time?”

               This statement alone indicates that Attorney Hartman advised the
       Defendant of the consequences of taking the matter to trial long before Attorney
       Hickman became involved, and despite the fact that the Defendant stated he
       didn’t understand it could be a mandatory two years if convicted.

              The Defendant’s testimony, the Court finds, given the complete record
       of the Ginther Hearing, when compared to the facts and testimony of the
       two attorneys and the Court’s recollection of the facts, failed to support
       any argument of ineffectiveness of counsel.         The Court finds a lack of
       credibility demonstrated by the Defendant, given the record before the Court.
       All the witnesses had difficulty in remembering certain aspects of the case,
       but this Court cannot find the lack of recall by counsel for the Defendant
       determinative of any ineffectiveness. In every trial, reasons may exist as to
       why things were done or not, and nothing in the record before the Court
       depicts what, in this Court’s view, constitutes proof of ineffectiveness.

        Defendant now contends that this Court should ignore the trial court’s factual findings
and conclude that defendant was not, in fact, aware that he would be charged with one count of
felony­firearm, carrying a mandatory sentence of two years’ imprisonment, when he withdrew
his plea. The testimony of the attorneys was clear: defendant was fully aware that the
prosecutor would add a charge of felony­firearm, carrying a two­year minimum sentence, if
defendant withdrew his plea. The trial court found this testimony credible; it found that
defendant’s contradictory testimony was not believable. This Court should defer to the trial
court’s credibility determinations. People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008),
amended 481 Mich 1201 (2008). Because defendant was, in fact, informed of the likely
consequence of withdrawing his plea, his claim that counsel was ineffective for failing to inform
him of that very consequence necessarily fails. Indeed, we agree with the trial court’s
concluding sentence in its opinion: “The ineffectiveness, the Court further finds, was in the
Defendant’s ability to listen, his erroneous belief that he understood more than his several
counsel about the law, and in the end got exactly what he bargained for, a trial and the
subsequent results.”

        We next turn to defendant’s claim that trial counsel was ineffective for failing to obtain a
ruling on the motion to quash. This issue, however, is not properly before us. The scope of the
Supreme Court’s remand to this Court was “for review of defendant’s previously unaddressed
arguments relating to ineffective assistance of counsel.” Traver, 502 Mich at 43 (emphasis
added). Defendant did not raise this issue in his original brief on appeal, raising only in his


                                                ­4­
supplemental brief following remand. Therefore, it does not constitute one of his “previously
unaddressed arguments.” As we noted in Russell, 297 Mich App at 714, when “an appellate
court remands a case with specific instructions, it is improper for a lower court to exceed the
scope of the order.” Because the Supreme Court did not direct us to consider any new issues
raised by defendant, it would be improper for us to now consider this issue and we decline to do
so.

        A similar problem exists in part with defendant’s remaining issues regarding ineffective
assistance of counsel. Defendant did raise those issues in his original brief and, therefore, those
issues are properly before us. But we did not direct the trial court to consider those issues or
hold a hearing on remand on those issues. Indeed, we specifically limited the scope of remand to
the plea­withdrawal issue:

               Pursuant to Part IV of this Court’s opinion in People v Traver, 316
       Mich App 588, 602­603; 894 NW2d 89 (2016), aff’d in part, rev’d in part, lv
       den in part __ Mich __ (2018) (Docket No. 154494), the Court orders that the
       matter is remanded so that defendant­appellant may, if he so chooses, move
       for an evidentiary hearing in support of his claim that his trial counsel did not
       adequately apprise him of the potential consequences of withdrawing his plea.
       If such a hearing is requested, an evidentiary hearing must be held, and the
       trial court shall determine whether counsel was ineffective after conducting
       the evidentiary hearing. Id. “If the court determines that counsel performed
       ineffectively by failing to advise [defendant] that the prosecutor intended to
       file a felony­firearm charge carrying a mandatory two­year imprisonment
       penalty, and that [defendant] would have declined to withdraw his plea had he
       been aware of this risk, the court must then order the prosecutor to reoffer the
       original plea agreement.” Id. at 603. Proceedings on remand are limited to
       the plea-withdrawal issue. [Unpublished order of the Court of Appeals,
       issued 7/20/2018 (emphasis added).]

        Accordingly, to the extent that the trial court considered or even took testimony on any
claim of ineffective assistance of counsel other than the plea­withdrawal issue, the trial court
exceeded the scope of remand. Therefore, we will not consider any such testimony or arguments
based upon the testimony given at the hearing on remand as it relates to any claim other than the
plea­withdrawal issue. Rather, we limited our consideration to the record as it existed at the time
of our original opinion.

        In his original brief on appeal, defendant contends that he received ineffective assistance
of counsel when counsel failed to investigate and present character witnesses and an expert
medical witness. “Trial counsel’s failure to a call a witness is only considered ineffective
assistance if it deprived the defendant of a substantial defense. A substantial defense is one that
could have affected the outcome of the trial.” People v Putnam, 309 Mich App 240, 248; 870
NW2d 593 (2015) (citation omitted).

        Defendant claims that defense counsel failed to contact “multiple witnesses who all
attested in writing that I was not a bully and that I had never been in a fight for as long as they


                                                ­5­
had known me.” These alleged mistakes are not apparent on the record. In any event, defense
counsel’s decision not to pursue these unnamed witnesses was a trial strategy that we will not
second guess. People v Dunigan, 299 Mich App 579, 590; 831 NW2d 243 (2013).

       Moreover, these purported character witnesses would not have provided an outcome
determinative defense given that there is no evidence that they would have directly refuted the
two eyewitnesses who testified to seeing defendant physically assault the victim with a gun in his
hand. Similarly, defense counsel’s decision not to pursue an expert to testify as to defendant’s
physical capacity cannot be considered outcome determinative in light of the eyewitness
testimony.

       Affirmed.



                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ David H. Sawyer
                                                            /s/ Michael J. Kelly




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