                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   November 27, 2018
              Plaintiff-Appellee,

v                                                                  No. 337917
                                                                   Kent Circuit Court
TOM ANTHONY WILLINGHAM,                                            LC No. 13-004018-FH

              Defendant-Appellant.


Before: MURPHY, P.J., and O’CONNELL and BECKERING, JJ.

PER CURIAM.

        Following a bench trial, defendant was convicted of one count of second-degree criminal
sexual conduct, MCL 750.520c(1)(a) (victim under 13 years of age). He was sentenced, as a
third-offense habitual offender, MCL 769.11, to 5 to 30 years’ imprisonment. On appeal, this
Court affirmed defendant’s conviction. People v Willingham, unpublished per curiam opinion of
the Court of Appeals, issued August 18, 2015 (Docket No. 321586). Defendant, acting pro se,
filed a late application for leave to appeal with our Supreme Court, which was rejected.
Subsequently, defendant filed a motion for relief from judgment in the trial court pursuant to
MCR 6.500 et seq., raising multiple arguments, including a claim that trial and appellate counsel
were ineffective for not challenging the prosecution’s failure to file a written proof of service
(POS) relative to providing a habitual offender notice as required by MCL 769.13. Defendant
contended that the failure to comply with the statute prohibited any enhancement of his sentence.
The trial court denied the motion and, with respect to the POS-habitual-offender issue, the court
found no due process violation and that, regardless, any error was harmless beyond a reasonable
doubt. This Court granted, in part, defendant’s application for leave to appeal, limiting the
appeal to the issue concerning the enhancement of defendant’s sentence based on his habitual
offender status. People v Willingham, unpublished order of the Court of Appeals, entered June
27, 2017 (Docket No. 337917). We affirm.

        We start our review by quoting the relevant subsections of MCL 769.13, which provide
as follows:

               (1) In a criminal action, the prosecuting attorney may seek to enhance the
       sentence of the defendant as provided under section 10, 11, or 12 of this chapter,
       by filing a written notice of his or her intent to do so within 21 days after the


                                               -1-
         defendant's arraignment on the information charging the underlying offense or, if
         arraignment is waived, within 21 days after the filing of the information charging
         the underlying offense.

                 (2) A notice of intent to seek an enhanced sentence filed under subsection
         (1) shall list the prior conviction or convictions that will or may be relied upon for
         purposes of sentence enhancement. The notice shall be filed with the court and
         served upon the defendant or his or her attorney within the time provided in
         subsection (1). The notice may be personally served upon the defendant or his or
         her attorney at the arraignment on the information charging the underlying
         offense, or may be served in the manner provided by law or court rule for service
         of written pleadings. The prosecuting attorney shall file a written proof of service
         with the clerk of the court.

        Our examination of the lower court record in this case reveals that the felony warrant and
complaint included the language, “HABITUAL OFFENDER – THIRD OFFENSE NOTICE.”
The specifics regarding two prior felony convictions are listed under the notices. On April 19,
2013, defendant was arraigned in the district court. Later, on May 2, 2013, defendant appeared
at his preliminary examination but then waived his right to the examination, acknowledging in
writing that he would be “bound over to circuit court on the charges in the complaint and
warrant[.]”1 Also on May 2, 2013, the prosecution placed the following rejected plea offer on
the record:
                 Yes, Your Honor, we’ve offered the Defendant the opportunity to plead
         guilty as charged to count one as a second sexual offender, and upon successful
         plea and sentence, thereto, we will dismiss count two and the supplemental
         information charging him as a third felony offender.
       On May 2, 2013, defendant additionally waived his circuit court arraignment, executing a
form which provided that defendant had received a copy of the felony information, that he read it
or had it explained to him, and that he understood the substance of the charges.2 The felony
information contained the same habitual-offender, third-offense notice provision found in the
felony warrant and complaint.3 On the date of trial in early 2014, defendant waived his right to a

1
  Defendant’s attorney had executed a demand for discovery that requested, in part, a copy of the
felony complaint and warrant.
2
    Defendant’s attorney also signed the form.
3
 At oral argument, the prosecutor informed the panel that her review of the file showed that the
prosecution had not provided a copy of the information to defendant. In defendant’s appellate
brief, after referencing the felony information and indicating that it contained the habitual
offender notice, defendant states that neither he nor his attorney “were served with the habitual
offender notice.” We note that the felony information was signed by the prosecutor about two
weeks prior to the scheduled preliminary examination and filed with the court approximately two
weeks after defendant waived the examination and circuit court arraignment.



                                                  -2-
jury trial, and he expressly indicated that he understood that if found guilty in the bench trial, it
would make him a third habitual offender subject to an enhanced maximum sentence of 30 years.
At the sentencing hearing and in the presentence investigation report, it was expressed that
defendant was being sentenced as a third-offense habitual offender, yet no objection or challenge
was raised on the matter.
        We review a trial court’s ruling on a motion for relief from judgment brought pursuant to
MCR 6.500 et seq., for an abuse of discretion, although any of the court’s underlying factual
findings are reviewed for clear error. People v Swain, 288 Mich App 609, 628; 794 NW2d 92
(2010). “A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes or makes an error of law.” Id. at 628-629 (citation omitted).
Associated questions of law are reviewed de novo. Id. at 629.

        Under MCR 6.508(D)(3), a “defendant has the burden of establishing entitlement to the
relief requested.” And a court is generally not permitted to grant relief from a conviction or
sentence unless a defendant has exhausted his appellate rights to a direct appeal under MCR
7.200 and 7.300 et seq, is not raising an issue that was previously rejected, and, absent “good
cause” and “actual prejudice,” is not alleging grounds for relief that could have been argued on
direct appeal. MCR 6.508(D)(1) to (3). To obtain relief, defendant was required to establish, in
part, “good cause” for not previously raising on appeal the POS-habitual-offender issue. 4 For
purposes of showing “good cause” under MCR 6.508(D)(3)(a), it “can be established by proving
ineffective assistance of counsel.” People v Kimble, 470 Mich 305, 314; 684 NW2d 669 (2004).
“To demonstrate ineffective assistance, it must be shown that defendant's attorney's performance
fell below an objective standard of reasonableness and this performance prejudiced him.” Id.

        We cannot conclude that defendant’s trial or appellate counsel was ineffective for not
raising the POS-habitual-offender argument. We initially note that it is absolutely clear and
beyond dispute that defendant had notice and was aware of the fact that the prosecution sought
sentence enhancement based on defendant’s status, upon conviction, as a third habitual offender.
The notice was contained in the felony warrant and complaint, which were requested by
defendant through discovery, and he acknowledged in writing on the date he waived his right to
a preliminary examination that he was being bound over “on the charges in the complaint and
warrant[.]” Given the prosecutor’s concession at oral argument that the prosecution did not
serve the felony information on defendant, even though defendant acknowledged receiving it in
the waiver of circuit court arraignment, we shall proceed on the basis that defendant was not
served with the information. That said, the prosecutor stated on the record at the scheduled
preliminary examination, with defendant present, that defendant was offered and rejected a plea
that would have included dismissal of “the supplemental information charging him as a third
felony offender.” We also note that when defendant waived his right to a jury trial on the date of


4
  “The court may waive the ‘good cause’ requirement of subrule (D)(3)(a) if it concludes that
there is a significant possibility that the defendant is innocent of the crime.” MCR 6.508(D)(3).
In the instant case, the trial court did not waive the “good cause” requirement and, moreover, the
issue posed by defendant regards his sentencing and not the conviction.



                                                -3-
trial, he acknowledged that if found guilty in the bench trial, he would be sentenced as a third
habitual offender.

        In People v Walker, 234 Mich App 299, 314-315; 593 NW2d 673 (1999), this Court,
facing a similar situation, observed and held:

                There is no question that MCL 769.13 provides that the prosecution shall
       file in the lower court a written proof of service of its notice of intent to seek an
       enhanced sentence. Here, no such proof of service is contained in the lower court
       file. Even if we were to assume, however, that the prosecution failed to file the
       proof of service (as opposed to the alternative explanation that the trial court clerk
       failed to place the proof of service in the file), defendant has offered no reason
       whatsoever for us to find that he is entitled to a reversal of his convictions.

              In particular, defendant asserts in a conclusory fashion that his right to due
       process was violated by the prosecution's failure to file a proof of service.
       Defendant has cited, and we have located, no authority whatsoever to support
       such a proposition. In any event, reversal is not warranted on a basis of this issue
       because any error was harmless beyond a reasonable doubt. Defendant makes no
       claim that he did not receive the notice of intent to enhance. Indeed, defense
       counsel admitted at the sentencing hearing that the notice of intent had been
       received; defendant simply contends that the proof of service was not filed with
       the lower court. If true, this in no way prejudiced defendant's ability to respond to
       the habitual offender charge. [Citations omitted.]

        Here, defendant’s claim of appeal following his conviction was filed on May 1, 2014, and
his brief in support of that appeal was filed on September 16, 2014. Walker certainly appeared to
be binding precedent at the time the appeal and brief were filed, MCR 7.215(J)(1), such that the
performance of trial and appellate counsel in not raising a POS-habitual-offender argument
cannot be deemed deficient, where any assumed error was plainly harmless beyond a reasonable
doubt in light of defendant’s timely knowledge of the sought-after enhancement. Failure to
advance a futile or meritless argument does not constitute ineffective assistance of counsel.
People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).

       The Supreme Court did issue an order in People v Cobley, 463 Mich 893 (2000), wherein
the Court, in lieu of granting leave to appeal, remanded a case to the trial court, directing:

               On remand, the defendant's sentence, as a fourth habitual offender, is to be
       vacated and the defendant resentenced because the prosecutor has not proven that
       the notice of sentence enhancement was served on defendant within 21 days after
       the defendant was arraigned. In all other respects, the application for leave to
       appeal is denied.

        In the case presently before us, the record indisputably establishes that defendant was
made aware within the 21-day period that the prosecution was seeking sentence enhancement as
a third felony offender, given that the prosecutor referenced it on the record on May 2, 2013; the


                                                -4-
district court arraignment was conducted about two weeks earlier on April 19, 2013. On May 2,
2013, defendant also acknowledged that he was being bound over on the charges in the
complaint and warrant, which both had a third-offense habitual notice. Moreover, there was no
prejudice to defendant’s ability to respond to the habitual offender charge. Assuming that trial
and appellate counsel were or should have been aware of Cobley, there would have been no
factual basis to raise an issue about the notice.

      By order dated October 30, 2015, the Michigan Supreme Court in People v Muhammad,
498 Mich 909 (2015), ruled:

               The Court of Appeals erred by applying harmless error analysis without
       first determining whether the trial court's order dismissing the habitual offender
       notice was erroneous. See MCR 2.613(A) (stating that a judgment or order of the
       court may not be vacated, modified, or otherwise disturbed “unless refusal to take
       this action appears to the court inconsistent with substantial justice”). The
       prosecutor has conceded that it did not timely serve the habitual offender notice
       under MCL 769.13. On remand, we direct the Court of Appeals to determine
       whether the trial court erred by concluding that the proper remedy for the
       prosecutor's statutory violation was dismissal of the habitual offender notice.

       This order, like the Cobley order, concerned a failure to provide notice within the allotted
time period. Moreover, the Muhammad order was entered after our defendant’s appellate brief
was filed in this Court and after this Court’s opinion was issued. Thus, the Muhammad order
does not lend support for defendant’s claim of ineffective assistance of counsel.

        Recently, this Court in People v Head, 323 Mich App 526, 542; 917 NW2d 752 (2018),
addressed a situation in which the defendant contended that he was entitled to resentencing
because the prosecutor had failed to file a POS relative to a fourth-offense, habitual-offender
notice. The Head panel held:

              The failure to file a proof of service of the notice of intent to enhance the
       defendant's sentence may be harmless if the defendant received the notice of the
       prosecutor's intent to seek an enhanced sentence and the defendant was not
       prejudiced in his ability to respond to the habitual offender notification. People v
       Walker, 234 Mich App 299, 314-315; 593 NW2d 673 (1999).

               In this case, defendant is correct that the prosecutor failed to file a proof of
       service of the notice of intent to enhance defendant's sentence. However, the error
       is harmless because defendant had actual notice of the prosecutor's intent to seek
       an enhanced sentence and defendant was not prejudiced in his ability to respond
       to the habitual offender notification.

              In particular, the charging documents in the lower court file all apprised
       defendant of his fourth-offense habitual offender status. Although defendant
       vaguely asserts that the habitual offender notice was not properly “served” on
       defendant or defense counsel, defendant does not specify what he means by this.


                                                 -5-
         Defendant does not claim that he and defense counsel never received a copy of
         the charging documents. Moreover, defendant received actual notice on the record
         at the preliminary examination that he was being charged as a fourth-offense
         habitual offender. [Head, 323 Mich App at 543-544.]

        The opinion in Head, which confirmed the harmless-error principle invoked in Walker,
further supports our conclusion that trial and appellate counsel in the instant case were not
ineffective for failing to raise a POS-habitual-offender argument. Their performances did not
fall below an objective standard of reasonableness. Kimble, 470 Mich at 314. Again, failing to
pursue a futile or meritless argument does not constitute ineffective assistance of counsel.
Ericksen, 288 Mich App at 201.

        We acknowledge that in People v Straughter, 501 Mich 944, 944-945 (2017), our
Supreme Court entered an order granting oral argument on a pending application for leave,
directing the appellant to address the following issues:

                 (1) whether the harmless error tests articulated in MCR 2.613 and MCL
         769.26[5] apply to violations of the habitual offender notice requirements set forth
         in MCL 769.13 . . .; (2) whether the prosecutor may establish that a defendant
         received a habitual offender notice at any time before the 21–day time limit
         in MCL 769.13 by any means other than a proof of service; and (3) whether
         providing a habitual offender notice in district court satisfies the requirement set
         forth in MCL 769.13 that the habitual offender notice be served within 21 days
         after the defendant's arraignment on the information.

Our Supreme Court entertained oral argument on October 9, 2018, in Straughter, and a ruling
has not been issued or entered as of the date of this opinion.

        We find no need to await the Straughter decision or to hold this case in abeyance pending
a ruling in Straughter, because even if our Supreme Court overrules Head and Walker, we could
hardly hold trial and appellate counsel ineffective for decisions made years earlier, where Walker
controlled. The performance of counsel was not ineffective as judged by the applicable law at
the time they represented defendant.




5
    MCL 769.26 provides:
                 No judgment or verdict shall be set aside or reversed or a new trial be
         granted by any court of this state in any criminal case, on the ground of
         misdirection of the jury, or the improper admission or rejection of evidence, or for
         error as to any matter of pleading or procedure, unless in the opinion of the court,
         after an examination of the entire cause, it shall affirmatively appear that the error
         complained of has resulted in a miscarriage of justice.



                                                  -6-
         In sum, defendant did not establish “good cause” for purposes of MCR 6.508(D)(3)(a);
therefore, he cannot be excused for having failed to raise the POS-habitual-offender issue in the
earlier direct appeal. Accordingly, the trial court did not err in denying defendant’s motion for
relief from judgment.

       Affirmed.


                                                           /s/ William B. Murphy
                                                           /s/ Peter D. O'Connell
                                                           /s/ Jane M. Beckering




                                               -7-
