            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 21, 2019
               Plaintiff-Appellee,

v                                                                  No. 338683
                                                                   Wayne Circuit Court
JEANETTA KAY DENT,                                                 LC No. 16-008983-01-FH

               Defendant-Appellant.


Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.

PER CURIAM.

       Defendant, Jeanetta Dent, appeals as of right her conviction of one count of assault with a
dangerous weapon (felonious assault), MCL 750.82, and one count of possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced
defendant to concurrent terms of one year of probation for the felonious assault conviction and
two years’ imprisonment for the felony-firearm conviction. We affirm.

                                      I. BACKGROUND

        On September 10, 2016, Kiaira Barker went to the school for her youngest son’s football
practice and waited for her ex-husband, Allen Barker, defendant’s boyfriend, to arrive to pick up
their three sons for the weekend in the parking lot of Stevenson Middle School in Westland.
When Allen and defendant arrived, Allen parked defendant’s car two spaces over from Kiaira’s
car and one row down. Allen and Kiaira exited the vehicle. Allen engaged in a conversation
with Kiara’s mother behind Kiaira’s car. Allen told defendant to return to her car after she and
Kiaira exchanged words. When defendant got back to her car, she and Kiaira continued to
exchange unpleasantries. Kiaira diverted her attention to try to listen to Allen’s conversation
with her mother. She next heard defendant call her name, so she looked over to defendant’s car
and saw defendant standing with the car door open pointing a gun at her with her finger on the
trigger. Defendant pointed the gun at Kiaira for approximately 15 seconds, then got back into
her car and closed the door. Allen and Kiaira’s mother did not witness defendant’s actions.
They were engaged in an altercation of their own. Later, Kiaira reported the incident to the
Westland Police Department and officers were dispatched to investigate.
        The following day police took defendant into custody and a detective interviewed her
after she waived her Miranda1 rights. During the recorded interview, defendant stated that
Kiaira threatened to kill her, her son, and Allen. Defendant also stated that she believed Kiaira
had a gun, although she did not see one. She admitted that she pointed her gun at Kiaira.

        During the trial, defendant testified that, although she had a gun, it remained holstered the
entire time during the incident. She stated that she never pointed the gun at Kiaira. Following
the bench trial, the trial court found defendant guilty of the charged offenses.

         Defendant argues on appeal that defense counsel provided ineffective assistance by
failing to present a sound trial strategy, failing to present witnesses regarding Kiaira’s motive to
lie, failing to interview and present Allen as a defense witness, failing to communicate with
defendant regarding plea offers, and by stopping to work for defendant when she became unable
to pay him. We find defendant’s arguments unpersuasive.

                                  II. STANDARD OF REVIEW

         To preserve a claim of ineffective assistance of counsel, a defendant must move for a new
trial or a Ginther2 hearing in the trial court. People v Payne, 285 Mich App 181, 188; 774 NW2d
714 (2009). Defendant moved for a new trial and argued the same bases now raised on appeal.
At the hearing defendant requested a new trial or a Ginther hearing. The trial court denied
defendant’s motion and the requested relief. “The question whether defense counsel performed
ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial
court’s findings of fact and reviews de novo questions of constitutional law.” People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012) (citation omitted).

                                         III. ANALYSIS

       “Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). To
succeed on a claim of ineffective assistance of counsel, “a defendant must establish that
‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ ” People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012),
quoting Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
The question whether counsel performed reasonably is “an objective one and requires the
reviewing court to ‘determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.’ ” Vaughn, 491
Mich at 670, quoting Strickland, 466 US at 690.

        Defendant argues that counsel failed to advance a sound trial strategy by offering two
theories of the case: actual innocence and self-defense. A defendant may present inconsistent

1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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defenses. People v Cross, 187 Mich App 204, 205-206; 466 NW2d 368 (1991). “This Court
does not substitute its judgment for counsel’s judgment regarding trial strategy.” People v
Kevorkian, 248 Mich App 373, 414; 639 NW2d 291 (2001). Further, advancement of a
particular trial strategy does not constitute ineffective assistance simply because it did not work.
Id. at 415.

        The record reflects that during closing argument, defense counsel argued that defendant
did not threaten Kiaira or cause her fear of imminent harm with the gun. Alternatively, defense
counsel argued that defendant reasonably believed Kiaira threatened her, her son, and Allen with
imminent harm and that defendant responded appropriately under the circumstances by preparing
to defend herself. Defendant testified on her own behalf and her testimony advanced these
defense theories. The record reflects that defense counsel made the presentation of the
alternative defenses in an effort to cast doubt on the prosecution’s overwhelming case against
her. Accordingly, defense counsel’s representation did not fall below an objective standard of
reasonableness in this regard.

        Defendant also asserts that defense counsel failed to make a complete investigation by
failing to interview Allen or present him as a trial witness. “Counsel always retains the ‘duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.’ ” Trakhtenberg, 493 Mich at 52, quoting Strickland, 466 US at 690-
691. “The failure to make an adequate investigation is ineffective assistance of counsel if it
undermines confidence in the trial’s outcome.” People v Grant, 470 Mich 477, 493; 684 NW2d
686 (2004). The record reflects that Allen provided an affidavit long after trial in which he
stated that counsel never contacted him about the case and that he heard Kiaira threaten
defendant and him verbally. During the hearing on defendant’s motion for a new trial, the
prosecution pointed out that defendant testified at trial that Allen and Kiaira’s mother were
engaged in conversation 16 to 30 feet away. The trial court reflected upon the trial witnesses’
testimonies and found that Allen could not have had any personal knowledge of Kiaira’s
statement because the evidence established that he was not within proximity to hear her remarks.
We do not find that the trial court’s finding of fact on this issue were clearly erroneous.
Accordingly, defense counsel’s representation did not fall below an objective standard of
reasonableness in this regard.

        Moreover, the record indicates that, if Allen heard Kiaira make a threat, his testimony
likely would not have affected the outcome of the case. The trial court determined that any
threat made by Kiaira failed to establish defendant’s self-defense claim because Kiaira and
defendant minimally interacted from a distance and the evidence established that Kiaira did not
have a gun in her possession and she never brandished a weapon at defendant. The threatening
remarks defendant testified that Kiaira made were of future action and posed no imminent threat
of harm. Further, defendant admitted in her interview with the detective that she never saw
Kiaira with a gun but pointed the gun she held at Kiaira. Defense counsel’s failure to interview
and call Allen as a witness does not support defendant’s ineffective assistance claim. There
exists no reasonable probability that, but for defense counsel’s decision, the result of defendant’s
trial would have been different.

       Defendant next argues that defense counsel provided ineffective assistance by not
presenting any witnesses to prove her innocence by showing that Kiaira had a motive to lie to the

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police. “Trial counsel’s failure to a call a witness is only considered ineffective assistance if it
deprived the defendant of a substantial defense.” People v Putman, 309 Mich App 240, 248; 870
NW2d 593 (2015). In Putnam, this Court clarified that:

       A substantial defense is one that could have affected the outcome of the trial.
       Likewise, decisions regarding what evidence to present, what evidence to
       highlight during closing argument, whether to call witnesses, and how to question
       witnesses are presumed to be matters of trial strategy. This Court will not second-
       guess counsel on matters of trial strategy, nor will it assess counsel’s competence
       with the benefit of hindsight. [Id. (quotation marks and citations omitted).]

         Defendant does not state who defense counsel should have called to testify regarding
Kiaira’s motive to lie nor has she explained the content of that testimony. The record indicates
that evidence was presented at trial to advance the defense that Kiaira lied about seeing
defendant point a gun at her. Further, the record reflects that defense counsel cross-examined
Kiaira at length regarding animosity between her and defendant and issues that arose between
them regarding Allen and the children. The trial court considered all of the evidence including
Kiaira’s testimony regarding the incident, the background facts, and defendant’s testimony that
she never pointed or showed the gun to defendant. “This Court will not interfere with the trier of
fact’s role of determining the weight of the evidence or the credibility of witnesses.” People v
Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). Based on the record, we cannot
conclude that defense counsel provided ineffective assistance by not calling additional witnesses
to testify that Kiaira had a motive to lie to the police. The record indicates that defense counsel’s
decision did not fall below an objective standard of reasonableness and did not deprive defendant
of a defense. We do not find that a reasonable probability exists that, but for defense counsel’s
decision, the result of defendant’s trial would have been different.

         Defendant argues that counsel failed to communicate with her regarding plea offers. “As
at trial, a defendant is entitled to the effective assistance of counsel in the plea-bargaining
process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014).

        In this case, the record reflects that defense counsel properly advised defendant of the
prosecution’s plea offers. At the final pretrial conference, the prosecution stated on the record in
defendant’s presence that if defendant pleaded guilty to the felonious assault charge, the
prosecution would dismiss the felony-firearm charge and agree to a sentence of probation with
the first six months served in jail, 120 hours of community service, and completion of anger
management. The prosecution advised the trial court that defendant intended to reject the offer.
Defense counsel advised the trial court that he informed defendant of the offer and that defendant
rejected the offer. Defense counsel asked defendant if he correctly informed the trial court.
Defendant affirmed in open court that her counsel correctly advised the trial court. At trial, the
prosecution stated that the above plea offer remained available, with the change that the first 90
days of probation would be served in jail. Defendant again rejected the offer. Defendant also
admitted in her affidavit submitted as an exhibit to her motion for new trial that defense counsel
discussed with her four plea offers. The record makes abundantly clear that defendant knew of
the plea offers, discussed them with defense counsel, and decided to reject them and have her
case tried.


                                                -4-
       Defendant argues further that defense counsel told her not to accept the plea offers
because the evidence supported her innocence. In Douglas, our Supreme Court explained:

       Where, as here, the alleged prejudice resulting from counsel’s ineffectiveness is
       that the defendant rejected a plea offer and stood trial,

               a defendant must show that but for the ineffective advice of
               counsel there is a reasonable probability that the plea offer would
               have been presented to the court (i.e., that the defendant would
               have accepted the plea and the prosecution would not have
               withdrawn it in light of intervening circumstances), that the court
               would have accepted its terms, and that the conviction or sentence,
               or both, under the offer’s terms would have been less severe than
               under the judgment and sentence that in fact were imposed. [Id. at
               592, quoting Lafler v Cooper, 566 US 156, 164; 312 S Ct 1376;
               182 L Ed 2d 398 (2012).]

        Nothing in the record other than defendant’s affidavit filed with her motion for a new
trial supports defendant’s contention that defense counsel told her not to accept the plea offers
presented by the prosecution in open court. Even if he had, the United States Supreme Court has
indicated its approval of the principle that “an erroneous strategic prediction about the outcome
of a trial is not necessarily deficient performance.” Lafler, 566 US at 174. The record reflects
that during the hearing on defendant’s motion for new trial the trial court considered the
evidence in the record regarding her claim that her counsel provided ineffective assistance
respecting plea offers. The trial court found no evidence that supported her claim. We find no
mistake on the record. Therefore, we find no merit to defendant’s claim that defense counsel
provided ineffective assistance in this regard.

         Defendant further argues that defense counsel failed to communicate with her regarding
trial strategy, witness selection, and where to report after her convictions. Defendant bore “the
burden of establishing the factual predicate for [her] claim of ineffective assistance of counsel[.]”
People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). In Hoag, our Supreme Court quoted
Ginther, 390 Mich at 442-443:

       A convicted person who attacks the adequacy of the representation he received at
       his trial must prove his claim. To the extent his claim depends on facts not of
       record, it is incumbent on him to make a testimonial record at the trial court level
       in connection with a motion for a new trial which evidentially supports his claim
       and which excludes hypotheses consistent with the view that his trial lawyer
       represented him adequately. [Id.]

        Defendant’s affidavit submitted to the trial court in support of her motion for new trial
contradicts her claims of ineffective assistance because she admitted that she met with counsel
“several times to discuss my case and his defense strategies . . . .” Defendant fails to provide any
factual predicate that supports her contention that defense counsel failed to communicate with
her about witness selection and trial strategy.


                                                -5-
        Defendant’s claim that defense counsel failed to tell her where she needed to report after
her convictions did not prejudice defendant in any perceptible manner. The record does not
indicate that defendant suffered any increased punishment for her failure to report to probation
immediately following her convictions.

         Defendant’s final argument is that defense counsel provided ineffective assistance by not
working for her because she became unable to pay him. The record reflects that defense counsel
represented defendant during pretrial proceedings, the trial, and during sentencing. Defendant
claims that she had to file a handwritten motion for reconsideration which indicated that defense
counsel stopped representing her without first seeking to withdraw as her counsel. The record,
however, indicates that defendant filed without the assistance of counsel her motion before the
sentencing hearing in which she requested that the trial court reconsider her convictions and
allow her to accept the prosecution’s plea offer. At the sentencing hearing the trial court first
addressed defendant’s motion. The trial court explained to defendant that after the trial
concluded and she was convicted, the plea offer no longer had validity. The trial court stated
that it lacked the ability to consider defendant’s request and therefore, denied the motion. It is
well settled that ineffective assistance of counsel cannot be predicated on the failure to make a
frivolous or meritless motion. People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
Accordingly, because defendant predicates her claim of ineffective assistance on the ground that
defense counsel failed to file her meritless motion, defense counsel did not provide ineffective
assistance in this regard.

       We hold that the trial court did not err by ruling that defendant failed to establish that
defense counsel provided ineffective assistance. The record reflects that defense counsel’s
performance did not fall below an objective standard of reasonableness and we find no
reasonable probability that, but for defense counsel’s performance, the result of the trial court
proceedings would have been different. Vaughn, 491 Mich at 669.

       Affirmed.

                                                            /s/ Mark J. Cavanagh
                                                            /s/ Stephen L. Borrello
                                                            /s/ James Robert Redford




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