20250210_C367100_37_367100.Opn.Pdf

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 10, 2025

Plaintiff-Appellee, 3:36 PM

v No. 367100

Allegan Circuit Court

ETHAN ISAAC PENDERGRASS, LC No. 2022-025401-FC

Defendant-Appellant.

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

PER CURIAM.

Defendant appeals by right his jury-trial convictions of first-degree criminal sexual conduct

(CSC-I) (person under 13 years old), MCL 750.520b(1)(a); second-degree criminal sexual conduct

(CSC-II) (person under 13 years old), MCL 750.520c(1)(a); and assault with intent of sexual

penetration, MCL 750.520g(1). Defendant was sentenced defendant to serve 11 to 40 years’

imprisonment for the CSC-I conviction, 6 to 15 years’ imprisonment for the CSC-II conviction,

and 4 to 10 years’ imprisonment for the conviction of assault with intent of sexual penetration.

For the reasons stated in this opinion, we affirm.

I. BACKGROUND

Defendant’s convictions arise from his assault of his younger cousin, ST, multiple times

over several years. At trial, TH, another one of defendant’s younger cousins, testified that

defendant assaulted her during the same time period and that she witnessed defendant assault ST.

TH later recanted her testimony.

Defendant was convicted as described, but was acquitted of one count of CSC-I under

MCL 750.520b(2)(b) (person under 13 years old, defendant over 17 years old). Defendant moved

for a new trial, arguing that TH’s testimony was false and “highly prejudicial” to defendant because

TH had recanted her testimony that defendant abused her and that she witnessed defendant abuse

ST. The trial court denied the motion. Defendant was sentenced as stated above. This appeal

followed.

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II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that trial counsel was ineffective for several reasons. We disagree.

An ineffective-assistance-of-counsel claim presents a “mixed question of fact and

constitutional law.” People v Yeager, 511 Mich 478, 487; 999 NW2d 490 (2023). Generally, we

review de novo constitutional questions, while we review the trial court’s findings of fact for clear

error. Id.

The United States and Michigan Constitutions afford criminal defendants the right to

effective assistance of counsel. Id. at 488, citing Const 1963, art 1, § 20; US Const Am VI;

Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To prevail on a

claim of ineffective assistance, “a defendant must show that (1) counsel’s performance fell below

an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a

reasonable probability that [the] outcome would have been different.” Yeager, 511 Mich at 488

(cleaned up). “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. (cleaned up). “Effective assistance of counsel is presumed, and the defendant bears

a heavy burden of proving otherwise.” People v Head, 323 Mich App 526, 539; 917 NW2d 752

(2018) (cleaned up). We will not find trial counsel to be ineffective where an objection would

have been meritless or futile, id., nor will we second-guess matters of trial strategy or “assess

counsel’s competence with the benefit of hindsight[,]” People v Abcumby-Blair, 335 Mich App

210, 237; 966 NW2d 437 (2020) (cleaned up). This Court has explained that failing to object may

be a matter of trial strategy because “there are times when it is better not to object and draw

attention to an improper comment.” People v Unger (On Remand), 278 Mich App 210, 242; 749

NW2d 272 (2008) (cleaned up).

A. AUTOMATIC WAIVER

First, defendant argues that his trial counsel was ineffective because he failed to argue that

defendant should have been charged and sentenced as a juvenile, not an adult, because he was

under 14 years old when he committed the acts in support of his convictions. We disagree.

Generally, the family division of the circuit court has exclusive jurisdiction of proceedings

involving a juvenile under 18 years of age. MCL 712A.2(a); MCL 764.27. But the criminal

division of the circuit court “has jurisdiction to hear and determine a specified juvenile violation

if committed by a juvenile 14 years of age or older and less than 18 years of age.” MCL

600.606(1). Jurisdiction may be waived to the criminal division of the circuit court by either: (1)

automatic waiver under MCL 764.1f(1), which authorizes a prosecutor to charge a qualifying

juvenile who has committed a “specified juvenile violation” as an adult, or (2) the motion-waiver

process under MCL 712A.4(1), which authorizes a judge of the family division to waive

jurisdiction to the criminal division of the circuit court on motion of the prosecutor if a “juvenile

14 years of age or older is accused of an act that if committed by an adult would be a felony[.]”

The family division of the circuit court only has subject-matter jurisdiction over juveniles who are

at least 14 years old and are charged with specified juvenile violations if the prosecutor files a

petition in the family division instead of filing a complaint and warrant with the criminal division

of the circuit court. MCL 712A.2(a)(1).

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This case involves the automatic waiver process. It is undisputed that CSC-I is designated

as a “specified juvenile violation.” MCL 600.606(2)(a); MCL 712A.2(a)(1)(A); MCL

764.1f(2)(a). The prosecutor automatically waived the family division’s jurisdiction by filing a

felony complaint and jurisdiction was vested in the criminal division of the circuit court. MCL

600.606(1); MCL 764.1f(1). Defendant’s acquittal of the charge of CSC-I under

MCL 750.520b(2)(b) did not strip the criminal division of its jurisdiction. Once jurisdiction has

properly attached, “there is a presumption against divesting a court of its jurisdiction . . . and any

doubt is resolved in favor of retaining jurisdiction.” People v Veling, 443 Mich 23, 32; 504 NW2d

456 (1993). The criminal division had jurisdiction to sentence defendant as an adult for his

convictions. Moreover, testimony at trial established that defendant was 14 years of age or older

when the offense occurred. Trial counsel was not ineffective for failing to advocate for a meritless

position. See Head, 323 Mich App at 539.

B. FAILURE TO PREPARE WITNESSES AND UTILIZE EVIDENCE

Defendant next argues that trial counsel was ineffective because he failed to sufficiently

prepare witnesses for trial and failed to utilize certain evidence to damage the victim’s credibility.

We disagree.

Defendant’s strategy centered around the fact that the abuse did not occur. Defendant

acknowledges that the record reflects that the defense witnesses testified regarding the time

defendant lived next door to the victim, his age at that time, and provided testimony to contradict

ST’s testimony. Defendant quibbles about the amount of time trial counsel spent preparing each

witness, but has not provided any argument that the defense witnesses were unprepared to answer

the questions posed to them. He maintains that trial counsel failed to utilize testimony regarding

“unique” characteristics of defendant’s penis and the fact that he did not wear underwear to damage

the victim’s credibility.

“Decisions regarding what evidence to present, whether to call witnesses, and how to

question witnesses are presumed to be matters of trial strategy[.]” People v Horn, 279 Mich App

31, 39; 755 NW2d 212 (2008). Defendant must overcome the strong presumption that his trial

counsel’s performance constituted sound trial strategy. Abcumby-Blair, 335 Mich App at 236-

237. “A particular strategy does not constitute ineffective assistance of counsel simply because it

does not work.” People v Carll, 322 Mich App 690, 702; 915 NW2d 387 (2018) (cleaned up).

We will not second-guess matters of trial strategy or “assess counsel’s competence with the benefit

of hindsight.” Id. at 237 (cleaned up). Defendant has failed to overcome the strong presumption

that counsel engaged in sound trial strategy.

C. FAILURE TO PROVIDE CORRECT PLEA OFFER

Defendant also contends that trial counsel was ineffective because he failed to provide the

correct plea offer to defendant. We disagree.

“[A]s a general rule, defense counsel has the duty to communicate formal offers from the

prosecution to accept a plea on terms and conditions that may be favorable to the accused.”

Missouri v Frye, 566 US 134; 132 S Ct 1399; 182 L Ed 2d 379 (2012). To show that trial counsel’s

failure to inform the defendant of a formal plea offer prejudiced the defendant, a defendant must

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establish that “the outcome of the plea process would have been different with competent advice.”

People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (cleaned up).

At the plea hearing, trial counsel initially recounted that the plea offer was “to reduce this

to have [defendant] plea to one count of [CSC-III], dismiss everything else,” and he related that

defendant “doesn’t want to take that offer and wishes to proceed to trial.” Defendant agreed.

Counsel was corrected, however, because he misstated the offer. The prosecution provided the

plea offer of “one count of [CSC-II] and one count of [CSC-III], recommendation of concurrent

within the guidelines so long as there’s no additional criminal behavior or bond violations, and we

would dismiss the balance of the other charges, that being at least one count of [CSC-I] . . . .” This

was the only plea offer in the record, and it was supported by a written plea agreement form.

Moreover, even accepting defendant’s argument that there was a plea offer to have defendant plea

to only one count of CSC-III, trial counsel indicated that defendant did not want to take such an

offer, and defendant agreed on the record. There is no indication that “the outcome of the plea

process would have been different . . . .” Douglas, 496 Mich at 592. A defendant who has

maintained his innocence, as defendant did at trial, is unable to demonstrate that, but for counsel’s

advice, the result of the plea proceeding would have been different. See id. at 597-598.

Because defendant was correctly informed of the only plea offer on record, his trial

counsel’s conduct did not fall below an objective standard of reasonableness and thus his trial

counsel was not ineffective. See Yeager, 511 Mich at 488.

D. FAILURE TO CALL EXPERT WITNESS

Defendant further asserts that trial counsel was ineffective because he failed to call an

expert witness to rebut the testimony of the prosecution’s expert. We disagree.

Decisions whether to retain expert witnesses are matters of trial strategy. People v Payne,

285 Mich App 181, 190; 774 NW2d 714 (2009). “[E]ffective counsel need not always provide an

equal and opposite expert.” Carll, 322 Mich App at 702 (cleaned up). “[I]n many instances, cross-

examination will be sufficient to expose defects in an [opposing] expert’s presentation.” Id.

However, to establish ineffective assistance on this basis, a defendant must show that an “expert

witness would have been able to offer favorable testimony.” Id. at 703.

In this case, the prosecution called a forensic interviewer to testify about delayed disclosure

and forensic-interview protocol. But she did not interview the victim. Trial counsel conducted an

extensive cross-examination of the prosecution’s expert witness. We will not second-guess

matters of trial strategy or “assess counsel’s competence with the benefit of hindsight.” Abcumby-

Blair, 335 Mich App at 237 (cleaned up). Defendant has failed to overcome the strong

presumption that counsel engaged in sound trial strategy. See Abcumby-Blair, 335 Mich App

at 236-237. Moreover, a defendant cannot establish a claim of ineffective assistance of counsel

merely by speculating that an expert witness could have provided favorable testimony. Payne,

285 Mich App at 190.

III. MOTION FOR A NEW TRIAL

Finally, defendant argues that the trial court abused its discretion by denying his motion

for new trial. We disagree.

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We review a trial court’s decision regarding a defendant’s motion for a new trial for an

abuse of discretion. People v Rogers, 335 Mich App 172, 191; 966 NW2d 181 (2020). A court

abuses its discretion when its decision falls outside the range of reasonable and principled

outcomes. Id. “A mere difference in judicial opinion does not establish an abuse of discretion.”

People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018). Any factual findings by the trial

court are reviewed for clear error. Id. at 565. A finding is clearly erroneous when this Court “is

left with a definite and firm conviction that the trial court made a mistake.” Id. “In the application

of this principle, regard shall be given to the special opportunity of the trial court to judge the

credibility of the witnesses who appeared before it.” MCR 2.613(C).

Generally, courts are reluctant to grant new trials on the basis of newly discovered

evidence. People v Grissom, 492 Mich 296, 312; 821 NW2d 50 (2012). Our Supreme Court has

established four requirements that a defendant must meet to demonstrate that a new trial is

warranted on the basis of newly discovered evidence:

(1) the evidence itself, not merely its materiality, was newly discovered; (2) the

newly discovered evidence was not cumulative; (3) the party could not, using

reasonable diligence, have discovered and produced the evidence at trial; and (4)

the new evidence makes a different result probable on retrial. [People v Cress, 468

Mich 678, 692; 664 NW2d 174 (2003) (cleaned up).]

The defendant bears the onus of establishing “the requisite showing” regarding the four elements

of the Cress test. People v Rao, 491 Mich 271, 274; 815 NW2d 105 (2012). “In order to determine

whether newly discovered evidence makes a different result probable on retrial, a trial court must

first determine whether the evidence is credible.” Johnson, 502 Mich at 566-567. “In making this

assessment, the trial court should consider all relevant factors tending to either bolster or diminish

the veracity of the witness’s testimony.” Id. at 567.

At trial, TH testified that defendant similarly abused her when she was five or six years

old. After defendant was convicted, TH recanted her testimony. TH explained that defendant’s

mother, TH’s aunt, did not speak to her for two weeks following the trial. Upon reconnecting,

defendant’s mother showed TH family pictures from the time period that TH testified that the

abuse occurred. Defendant’s mother maintained that defendant did not live there at the time the

abuse occurred and encouraged TH to change her testimony. After TH recanted, she testified that

she did not know the identity of her abuser, but maintained that it was not defendant.

The trial court determined that the evidence was newly discovered evidence and not

cumulative. But the trial court concluded, “the evidence [was] not likely to render a different result

probable on retrial because of the inherent unreliability of recanting testimony.” The trial court

determined that “there [were] influences happening to [TH].” The trial court also noted that TH

was not the only complaining witness, and the jury found the testimony of the “actual victim”

credible. Accordingly, the trial court denied the motion for new trial.

As our Supreme Court has explained, a trial court must first determine whether the newly

discovered evidence is credible in order to determine whether a different result is probable on

retrial. Johnson, 502 Mich at 566-567. All relevant factors tending to either bolster or diminish

the veracity of the witness’s testimony should be considered by the trial court. Id. at 567. In

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determining whether new evidence makes a different result probable on retrial, the trial court must

consider the evidence that was previously introduced at trial. Id. at 571. “As a rule the court is

not impressed by the recanting affidavits of witnesses who attempt to show that they perjured

themselves at the trial.” People v Norfleet, 317 Mich App 649, 661; 897 NW2d 195 (2016)

(citation omitted); see also People v Barbara, 400 Mich 352, 362-363; 255 NW2d 171 (1977)

(“Where such [newly discovered] evidence, however, takes the form of witnesses’ recantation

testimony, it has been traditionally regarded as suspect and untrustworthy.”); People v Van Den

Dreissche, 233 Mich 38, 46; 206 NW 339 (1925) (“[R]ecanting testimony is exceedingly

unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such

testimony is true.”) (cleaned up).

We are not left with a definite and firm conviction that the trial court made a mistake in its

assessment of TH’s credibility and the influence she experienced that caused her to recant her

testimony. Considering the evidence presented at trial and TH’s recantation testimony, the trial

court did not err by concluding that TH’s testimony would not make a different result probable on

retrial. Accordingly, the trial court did not abuse its discretion when it denied defendant’s motion

for new trial.

Affirmed.

/s/ Stephen L. Borrello

/s/ James Robert Redford

/s/ Sima G. Patel

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