                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 20, 2016
               Plaintiff-Appellee,

v                                                                   No. 328002
                                                                    Ingham Circuit Court
NEIL ADAM KECKLER,                                                  LC No. 11-000674-FC

               Defendant-Appellant.


Before: JANSEN, P.J., and K. F. KELLY and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of disseminating sexually explicit
matter to a minor, MCL 722.675, and six counts of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1)(a) and (2)(b) (victim less than 13 years of age and defendant at least 17 years
of age). Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to two to
three years’ imprisonment for disseminating sexually explicit matter to a minor, and 30 to 60
years’ imprisonment for each CSC-I conviction. We affirm.

                                            I. FACTS

         The victim, NC, is defendant’s biological daughter. The victim testified that defendant
first sexually assaulted her when she was four or five years old, and the abuse continued until she
was nine years old. She also testified that defendant showed her pornographic videos, once
mimicking the content with her. Eventually, NC disclosed the abuse to her grandmother. A
medical examination disclosed that NC’s vagina was remarkably deep for a prepubertal girl and
that her hymen was almost completely gone. The examining doctor explained that this was
“highly suspicious physical evidence, or affirmative physical evidence that what she was saying
happened.” The doctor conceded that insertion of a sex toy could have caused the injuries, but
explained that was highly unlikely because it would cause a lot of pain and most children would
not hurt themselves to this extent.

        Defendant testified and denied the charges. He admitted that he and his wife, NC’s
mother, kept pornographic videos in their bedroom and that he stored pornography on their
digital video recorder (DVR). Defendant asserted, however, that he never allowed NC to view
the pornography and that the DVR had a password protected code that only he and his wife
knew. Defendant testified that NC was always a problem as a child, and her attitude and

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behavior worsened in the months before the allegations surfaced. Defendant and NC’s mother
voluntarily relinquished their parental rights to NC. NC’s mother also relinquished her parental
rights to NC’s half siblings, BC and MC.1

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant first argues that the trial court erred in denying his motion for a Ginther2
hearing to consider his claim that his trial counsel did not provide effective assistance.
Specifically, defendant claims that his trial counsel was ineffective for failing to call BC and MC
to testify at trial.3 We disagree.

        We review a trial court’s decision whether to hold an evidentiary hearing for an abuse of
discretion. People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). “An abuse of
discretion occurs when the court chooses an outcome that falls outside the range of reasonable
and principled outcomes.” Id. The assertion that a defendant was denied the right to effective
assistance of trial counsel raises a mixed question of fact and constitutional law. People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). The trial court’s factual findings, if any,
are reviewed for clear error, and its constitutional determinations are reviewed de novo. Id.
“Clear error exists when the reviewing court is left with a definite and firm conviction that a
mistake was made.” People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). “When
no Ginther hearing has been conducted, our review of the defendant’s claim of ineffective
assistance of counsel is limited to mistakes that are apparent on the record.” People v Mack, 265
Mich App 122, 125; 695 NW2d 342 (2005).

        To show that defense counsel was ineffective, a defendant must establish (1) that
counsel’s performance fell below an objective standard of reasonableness and (2) that the
defendant was prejudiced because of counsel’s performance. People v Vaughn, 491 Mich 642,
669; 821 NW2d 288 (2012). A prejudice showing means that “ ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” Id. (citation omitted).

        “Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses,” and a substantial defense is a defense that might have made a difference in the
outcome of trial. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). “ ‘[T]he
failure to call witnesses only constitutes ineffective assistance of counsel if it deprives the
defendant of a substantial defense.’ ” People v Russell, 297 Mich App 707, 716; 825 NW2d 623
(2012) (citation omitted; alteration in original). “[D]ecisions regarding what evidence to present


1
    Defendant is not the biological father of BC or MC.
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
 Defendant raised several other alleged instances of ineffective assistance in a motion in the trial
court for a new trial or an evidentiary hearing. Those arguments were found meritless by the
court and are not repeated on appeal.


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and which witnesses to call are presumed to be matters of trial strategy, and we will not second-
guess strategic decisions with the benefit of hindsight.” People v Dunigan, 299 Mich App 579,
589-590; 831 NW2d 243 (2013).

        Although defendant mentions both MC and BC in his brief on appeal, his argument
focuses on the testimony of BC. Defendant asserts that BC would have contradicted NC’s
statement to the doctor who examined her that defendant had also abused BC, as well as testified
that she observed NC using a sex toy. Defendant argues that this evidence would have
undermined NC’s credibility and provided an alternate explanation for her injuries. We first
conclude that defendant failed to overcome the presumption that defense counsel’s conduct
constituted sound trial strategy. The only evidence in the record indicating the potential
testimony of BC is her police statement. A police report regarding her interview was submitted
to the trial court in response to defendant’s motion for an evidentiary hearing. Some of the
material in BC’s statement might have been helpful to defendant. For example, BC told the
police that defendant never touched her inappropriately and that she was unaware that defendant
ever touched NC inappropriately.

        However, other statements can be seen as unhelpful or even damaging to the defense.
For example, BC stated that defendant was often drunk and that she mainly stayed in her
bedroom when she was at home, indicating that she would not have had the opportunity to
witness many of the incidents. Thus, defense counsel may have reasonably and strategically
concluded that calling BC to testify carried more of a potential to harm defendant’s cause than to
benefit it. Further, counsel may have concluded that calling a child to testify could be viewed as
inappropriate by the jury, or might introduce a potentially volatile and uncontrollable element
into the case. Accordingly, we conclude that defendant failed to overcome the presumption that
defense counsel’s conduct constituted sound trial strategy.

         Furthermore, defendant failed to establish that the failure to call BC deprived him of a
substantial defense. BC’s proffered testimony would have done nothing more than bolster the
defense theory that counsel pursued at trial—that NC was fabricating the abuse. Throughout
trial, counsel attempted to show that NC was not testifying truthfully because she was regularly
angry at defendant for disciplining her, including grounding her for 30 days immediately
preceding NC’s disclosures. NC’s mother and defendant testified that NC consistently exhibited
poor behavior and that defendant would discipline her. NC admitted during cross-examination
that defendant would discipline her and she would, as a result, get angry with him. There was
also testimony presented at trial that NC wrote a letter stating that defendant did not touch her.
Because BC’s proffered testimony would not provide an alternative defense to present to the
jury, and because there was ample evidence supporting the defense theory, the failure to call BC
did not deprive defendant of a substantial defense.

        Moreover, the testimony that defendant claims BC would have given was provided
through other witnesses. During cross-examination, a police officer who interviewed the
children testified that BC did not disclose any sexual abuse and “had a normal physical exam.”
In addition, NC’s mother testified that she observed NC touching her private area with a sex toy.
We therefore conclude that BC’s testimony was cumulative and would not have affected the
outcome of the trial. Therefore, defendant fails to establish that the failure to call BC as a
witness deprived him of a substantial defense and that there is a reasonable probability that, but

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for defense counsel’s conduct, the result of the trial would have been different. We likewise
conclude that because defendant failed to show that his counsel was ineffective, the trial court
did not abuse its discretion in declining to hold an evidentiary hearing on the matter.

                                  III. SENTENCING ERROR

       Defendant also argues that he is entitled to resentencing because the trial court engaged in
impermissible judicial fact-finding with regard to the scoring of offense variables (OVs) 4, 10,
and 11. We disagree.

        Defendant claims that the trial court used impermissible judicial fact-finding to score OV
4 (psychological injury to victim), MCL 777.34, OV 10 (exploitation of a vulnerable victim),
MCL 777.40, and OV 11 (criminal sexual penetration), MCL 777.41. The prosecution concedes
that each of these scores was indeed subject to judicial fact-finding, but argues that because
defendant was subject to a departure sentence (from both the guidelines and the applicable
mandatory-minimum), the scores did not affect his sentence, and there is no Sixth Amendment
violation.

        Defendant’s guidelines minimum sentence range was calculated at 135 to 225 months’
imprisonment for his CSC-I convictions. Pursuant to MCL 750.520b(2)(b), a 25-year minimum
sentence is mandated. The trial court exceeded both when it imposed a 30-year minimum
sentence. Defendant did not object to his guidelines minimum sentence range based on
impermissible judicial fact-finding. See People v Lockridge, 498 Mich 358, 392; 870 NW2d 502
(2015). Thus, the issue is unpreserved and will be reviewed for plain error affecting substantial
rights. Id.

        In Lockridge, 498 Mich at 364, our Supreme Court concluded that Michigan’s sentencing
guidelines were “constitutionally deficient” to “the extent to which the guidelines require
judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense
variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range.”
As a result, the Court “sever[ed] MCL 769.34(2) to the extent that it is mandatory and [struck]
down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines
range in MCL 769.34(3).” Id. at 391. The Court determined that the sentencing guidelines are
advisory only. Id. at 365. Accordingly,

       [w]hen a defendant’s sentence is calculated using a guidelines minimum sentence
       range in which OVs have been scored on the basis of facts not admitted by the
       defendant or found beyond a reasonable doubt by the jury, the sentencing court
       may exercise its discretion to depart from that guidelines range without
       articulating substantial and compelling reasons for doing so. A sentence that
       departs from the applicable guidelines range will be reviewed by an appellate
       court for reasonableness. Resentencing will be required when a sentence is
       determined to be unreasonable. Because sentencing courts will hereafter not be
       bound by the applicable sentencing guidelines range, this remedy cures the Sixth
       Amendment flaw in our guidelines scheme by removing the unconstitutional
       constraint on the court’s discretion. Sentencing courts must, however, continue to
       consult the applicable guidelines range and take it into account when imposing a
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       sentence. Further, sentencing courts must justify the sentence imposed in order to
       facilitate appellate review. [Id. at 391-392 (citations omitted).]

The Court further concluded that “all defendants (1) who can demonstrate that their guidelines
minimum sentence range was actually constrained by the violation of the Sixth Amendment and
(2) whose sentences were not subject to an upward departure” can show “a threshold showing of
the potential for plain error sufficient to warrant a remand to the trial court for further inquiry.”
Id. at 395. The Court stated that if the sentence was imposed on or before the date of the Court’s
decision in Lockridge, a trial court must hold a hearing consistent with United States v Crosby,
397 F3d 103 (CA 2, 2005), to determine whether the court “would have imposed a materially
different sentence but for the constitutional error.” Id. at 397. However, the defendant in
Lockridge was not entitled to resentencing. Id. at 393-394. The Court explained:

       Because he received an upward departure sentence that did not rely on the
       minimum sentence range from the improperly scored guidelines (and indeed, the
       trial court necessarily had to state on the record its reasons for departing from that
       range), the defendant cannot show prejudice from any error in scoring the OVs in
       violation of Alleyne. [Id. at 394.]

The Court further explained that

       [i]n cases such as this one that involve a minimum sentence that is an upward
       departure, a defendant necessarily cannot show plain error because the sentencing
       court has already clearly exercised its discretion to impose a harsher sentence than
       allowed by the guidelines and expressed its reasons for doing so on the record. It
       defies logic that the court in those circumstances would impose a lesser sentence
       had it been aware that the guidelines were merely advisory. Thus, we conclude
       that as a matter of law, a defendant receiving a sentence that is an upward
       departure cannot show prejudice and therefore cannot establish plain error. [Id. at
       395 n 31.]

        In People v Steanhouse, 313 Mich App 1, 44-48; 880 NW2d 297 (2015), lv gtd 499 Mich
934 (2016), this Court clarified that a trial court abuses its discretion in imposing a sentence if
the sentence violates the principle of proportionality test as set out in People v Milbourn, 435
Mich 630; 461 NW2d 1 (1990). The Milbourn test requires sentences “ ‘to be proportionate to
the seriousness of the circumstances surrounding the offense and the offender,’ ” Steanhouse,
313 Mich App at 45, quoting Milbourn, 435 Mich at 636, taking “ ‘into account the nature of the
offense and the background of the offender,’ ” Steanhouse, 313 Mich App at 45, quoting
Milbourn, 435 Mich at 651.

               Factors previously considered by Michigan courts under the
       proportionality standard included, among others, (1) the seriousness of the
       offense; (2) factors that were inadequately considered by the guidelines; and (3)
       factors not considered by the guidelines, such as the relationship between the
       victim and the aggressor, the defendant’s misconduct while in custody, the
       defendant’s expressions of remorse, and the defendant’s potential for
       rehabilitation. [Steanhouse, 313 Mich App at 46 (citations omitted).]

                                                -5-
 “[A] sentence that fulfills the principle of proportionality under Milbourn, and its progeny,
constitutes a reasonable sentence under Lockridge.” Id. at 47-48. However, because the trial
court was unaware of and not expressly bound by this reasonableness standard at the time of
sentencing, the Steanhouse Court concluded that a Crosby remand was necessary. Id. at 48.
This Court held that the Crosby remand procedure outlined in Lockridge should continue to
apply. Id. at 48-49. A defendant may, however, choose to decline resentencing by providing
prompt notice of his or her decision to the trial court. Id. at 48.

       We first note that this case involves a departure from a statutorily-mandated 25-year
minimum sentence, as opposed to a departure from a sentence within the sentencing guidelines
range. However, we see no reason for treating this departure differently from the departure in
Lockridge as both situations involve imposing a longer term of imprisonment than the defendant
would have otherwise received. Accordingly, we conclude that the trial court imposed a
departure sentence under the meaning of the term in Lockridge.

        However, we conclude that remand is not required in this case. Although the trial court
did not know that it was bound by the reasonableness standard articulated in Milbourn, its
statements during sentencing encompassed this standard. The court emphasized the seriousness
of the offense defendant committed against NC. The court stated that NC was “used as a
receptacle” and that defendant was “a terrorist in a way.” The court explained that NC was held
captive in her own home and that she could “never be in peace.” The court also considered
factors that were inadequately considered by the guidelines when the court discussed the fact that
there were numerous instances of abuse and that the OVs did not take into account the fact that
the abuse occurred one or two times per week over a period of five years. In addition, the court
considered the relationship between NC and defendant as father and daughter, as well as the fact
that NC lost her parents because of the abuse. Finally, the court considered the extent of NC’s
injuries. The court concluded, “This was an extreme situation as far as not only being her father,
but the number of times that this happened and the damage that it did to her.” The court,
therefore, considered the nature of the offense and the background of defendant when imposing a
sentence that was proportionate to the seriousness of the offense and to the offender. See
Steanhouse, 313 Mich App at 45. We conclude that the sentence constituting a five-year
departure from the 25-year mandatory minimum was reasonable. Although the trial court did not
explicitly mention the “principle of proportionality” or Milbourn, we nevertheless conclude that
the trial court’s sentencing decision conformed to the law as articulated in Milbourn. Thus,
remand is not required and would constitute a waste of judicial resources.

       Affirmed.


                                                            /s/ Kathleen Jansen
                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Colleen A. O’Brien




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