                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     February 26, 2015
               Plaintiff-Appellee,

v                                                                    No. 319137
                                                                     Calhoun Circuit Court
LAWRENCE MICHAEL HINTON,                                             LC No. 2013-002116-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and MURPHY and BOONSTRA, JJ.

PER CURIAM.

       Defendant appeals as of right his convictions following a jury trial of fleeing and eluding,
MCL 257.602a(3), and two counts of assaulting, battering, resisting, obstructing, or opposing a
police officer, MCL 750.81d. He was sentenced as a fourth habitual offender, MCL 769.12, to
serve 60 to 228 months’ imprisonment for the fleeing and eluding conviction and 46 to 180
months’ imprisonment for the resisting or obstructing convictions. We affirm.

        On June 27, 2013, Battle Creek Police Officer Benjamin Clark observed a white Lincoln
Continental with an expired registration sticker. Officer Clark, who was in full uniform and was
driving a marked police cruiser, pulled behind the car and turned on his emergency lights to
affect a traffic stop. However, the vehicle did not stop. Instead, it turned onto a different street
and accelerated to 35 to 40 miles per hour. Officer Clark activated his air horn and emergency
sirens and pursued the vehicle, which continued at the same speed for some time and then pulled
over. Officer Clark exited his police cruiser and verbally commanded the driver—whom he later
identified as defendant—to stop running the engine of his vehicle. However, defendant
proceeded to drive away. Officer Clark reactivated his sirens and followed defendant.
Defendant pulled over again, this time “making a lot of . . . movements inside the car.” Based on
his training and experience, Officer Clark suspected defendant was trying to hide weapons or
contraband. Officer Clark approached defendant with his firearm drawn. He gave defendant
loud commands to exit his vehicle with his hands up. However, defendant reached his hand
through the open window, “flipped” Officer Clark off, and then drove away at a high rate of
speed.

       A second police officer in a separate marked police cruiser joined the pursuit. Both
police cars had their lights activated. Defendant once again pulled over. The second officer
pulled alongside the driver’s side of the vehicle while Officer Clark pulled his vehicle behind

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defendant’s car. Both officers approached defendant with their firearms drawn, giving loud
commands for him to show his hands. Defendant did not comply. The second officer attempted
to gain control of defendant’s hands, but defendant resisted. Officer Clark explained that it
appeared defendant was attempting to drive away yet again. Defendant was eventually extracted
forcibly from his vehicle, handcuffed, and taken to jail.

        Defendant was charged as a fourth-habitual offender with one count of fleeing and
eluding a police officer, one count of possession of cocaine, second offense, MCL
333.7403(2)(a)(v), and two counts of resisting or obstructing a police officer. Defendant waived
his right to a preliminary examination in exchange for a plea offer. Pursuant to the offer, the
prosecutor was prepared to dismiss the fourth-habitual offender notice and both charges of
resisting or obstructing a police officer. The offer was again extended after the preliminary
examination, but defendant did not accept it. Before trial, the prosecutor dismissed the
possession of cocaine charge. Trial proceeded, and defendant was convicted as indicated above.

         On April 7, 2014, defendant filed a motion to vacate his convictions and reinstate the plea
offer. He asserted that he received ineffective assistance of counsel in conjunction with the plea-
bargaining process and requested that the trial court hold a Ginther1 hearing. The parties
stipulated that an evidentiary hearing should be held before argument on defendant’s motion. At
the Ginther hearing, defendant’s trial attorneys, Niels Magnusson and James Jordan, testified
that they discussed the plea offer with defendant on multiple occasions. Attorney Jordan
testified that he went over the sentencing guidelines with defendant both under the plea
agreement and under the scenario of convictions being rendered on all of the charges, including
consideration of the habitual fourth notice.2 Both attorneys indicated that they advised defendant
that it was a good plea offer and that they recognized defendant had a weak case. They also
testified that defendant was not interested in the plea offer unless he would receive a twelve-
month cap on his sentence (county jail time only), but the prosecution was unwilling to make
such a deal. Defendant testified that his attorneys did not go over the guidelines with him. He
claimed that he was told it was possible that if he beat the resisting or obstructing charges at trial,
he could receive a lower sentence. Defendant claimed that if he knew he would face more time
if he went to trial he would have pleaded guilty.

        The trial court denied defendant’s motion. The court first found that defendant’s
testimony was not credible. On the other hand, the court found that the testimony of defendant’s
attorneys was credible. Based on the testimony from defendant’s attorneys, the court concluded
that defendant was told of two scenarios under the guidelines—his scoring under the plea and his


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
  When asked by the trial court whether he “went over with [defendant] the guidelines for all the
offenses including the habitual notice,” Jordan replied, “Yes.” The trial court later inquired
again whether Jordan “described the guidelines to [defendant] for the offenses as charged,” and
Jordan responded, “I told him yes.” Jordan testified multiple times about going over the
sentencing guidelines with defendant in relationship to the plea offer, including dismissal of the
habitual offender notice.


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scoring if convicted as charged. The court found that the attorneys informed defendant that
getting convicted as charged would be “far more serious” than if he accepted the plea offer. The
court ruled that the “issue here is . . . that he didn’t want to sacrifice two more months under the
fourteen month minimum under the plea agreement guidelines.”

        Defendant’s only argument on appeal is that he received ineffective assistance of counsel
in conjunction with the plea-bargaining process. He asserts that trial counsel failed to adequately
explain the consequences of accepting or not accepting the plea offer. Specifically, defendant
asserts that his attorneys did not provide a thorough and accurate explanation of the potential
risks and that they spent an inadequate amount of time explaining the plea offer, the maximum
sentence under the plea offer, and the maximum sentence if defendant was convicted as charged.

       In People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011), our Supreme Court
explained the applicable standard of review:

               Whether a defendant received ineffective assistance of trial counsel
       presents a mixed question of fact and constitutional law. 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. We review
       the trial court's factual findings for clear error. Clear error exists if the reviewing
       court is left with a definite and firm conviction that the trial court made a
       mistake. We review de novo questions of constitutional law. [Citations and
       quotation marks omitted.]

       With respect to the assistance of counsel in the context of plea bargaining, the Court in
People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014), observed:

               As at trial, a defendant is entitled to the effective assistance of counsel in
       the plea-bargaining process. A defendant seeking relief for ineffective assistance
       in this context must meet . . . [the] familiar two-pronged standard by showing (1)
       that counsel's representation fell below an objective standard of reasonableness,
       and (2) that there is a reasonable probability that, but for counsel's unprofessional
       errors, the result of the proceeding would have been different. In demonstrating
       prejudice, the defendant must show the outcome of the plea process would have
       been different with competent advice. [Citations and quotation marks omitted.]

        “The defendant has the burden of establishing the factual predicate of his ineffective
assistance claim.” Id. at 592. “Effective assistance of counsel is presumed, and the defendant
bears a heavy burden of proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683
NW2d 761 (2004).

        Attorney Jordan explained at the Ginther hearing that he went over defendant’s
sentencing guidelines with him, both under the plea agreement and were he to be convicted as
charged with the habitual fourth sentence enhancement. Both attorneys testified that defendant
wanted a twelve-month cap on his sentence and that anything to the contrary was unacceptable to
defendant. The plea offer simply did not allow for a twelve-month cap. Both attorneys testified
that they told defendant that the plea offer was a good offer, and Magnusson testified that he

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“advised [defendant] that he would be better off with a plea.” In fact, Magnusson testified that,
after defendant had decided to go to trial, both attorneys still went to the jail “to try and resolve
the matter and basically indicate to . . . [defendant] what his options were and what the risks
were of going to trial.” Magnusson believed that defendant understood the potential penalties
upon conviction of all the counts, together with the habitual offender notice. Defendant argues
that the attorneys recognized that the evidence against him was overwhelming and should have
compelled them to make that clear to defendant when he was contemplating the plea offer. We
surmise that defendant was already fully aware that the evidence against him was overwhelming.

        To the extent that defendant’s testimony supported his position and conflicted with the
testimony offered by his attorneys, the trial court found that defendant’s testimony was not
credible, and credibility determinations are generally left to the trial court when ruling in an
evidentiary hearing. People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008); MCR
6.001(D); MCR 2.613(C). We decline to disturb the trial court’s factual and credibility
determinations. The attorneys’ representation of defendant with respect to the plea negotiations
did not fall below an objective standard of reasonableness.

       Affirmed.



                                                              /s/ Michael J. Riordan
                                                              /s/ William B. Murphy
                                                              /s/ Mark T. Boonstra




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