People of Michigan v. Creighton Ronee McCullough

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

April 19, 2018

Plaintiff-Appellee,

v No. 337600

Bay Circuit Court

CREIGHTON RONEE MCCULLOUGH, LC No. 16-010547-FH

Defendant-Appellant.

Before: MURPHY, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial conviction of domestic violence, third offense,

MCL 750.81(5). He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 60 to

240 months’ imprisonment. We affirm.

Defendant’s conviction arose from a July 26, 2016 altercation with his wife, from whom

he was separated. Although she threw a drink at defendant, he struck her on the side of her head

with his hand and told her to get in the house, where he pushed her down and proceeded to choke

her.

The prosecution offered defendant a plea agreement before trial that would have removed

his habitual offender designations in this matter, and would have dismissed charges against

defendant in another matter. Defendant was informed by the trial court that he faced a possible

term of incarceration of life imprisonment due to his fourth habitual offender designation. MCL

769.12(1)(b) provides that a habitual offender with three or more felonies is subject to a term of

life imprisonment or a lessor term for a crime with a maximum term of five years’ imprisonment

or more. Thus, by accepting the plea, defendant could have reduced his potential maximum

sentence from life imprisonment to five years’ imprisonment.

Defense counsel, Matthew Reyes, stated on the record that he had discussed the pros and

cons of the plea agreement with defendant, as well as the possible minimum sentencing

guidelines ranges if defendant was convicted as charged or accepted the plea agreement.

Defendant stated that he understood the plea agreement and that the trial court could impose a

life sentence if he were convicted as charged. Regardless, defendant rejected the plea agreement.

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Following trial, defendant discharged Reyes, obtained new counsel, and moved for a new

trial based on ineffective assistance of counsel. He argued that he faced a considerably longer

minimum term of imprisonment after trial than his maximum term of imprisonment under the

plea agreement, and alleged that “had [he] realized the extent of his exposure he would have

taken the plea agreement.”

The court held a hearing on defendant’s motion at which Reyes testified that he and

defendant looked at the sentencing grid book and estimated defendant’s minimum guidelines

range at 12 to 48 months’ imprisonment, or depending on what offense variable points were

assessed at sentencing, up to 58 months’ imprisonment. Reyes stated that he told defendant that

the trial judge would make the final decision on the guidelines range and might disagree with the

parties’ calculations, that the court could depart from any guideline range and sentence him to a

longer term of imprisonment, and that counsel’s estimates were not guaranteed. The court

denied defendant’s motion for a new trial and calculated defendant’s minimum guidelines range

at 19 to 76 months. As previously stated, it imposed a minimum sentence of 60 months’

imprisonment.

Defendant argues that he received ineffective assistance of counsel where Reyes

incorrectly calculated his possible guidelines and advised him to go to trial, and further that the

trial court therefore erred in denying his motion for a new trial. We disagree.

This Court reviews a trial court’s decision to grant or deny a motion for a new trial for an

abuse of discretion. People v Lonsby, 248 Mich App 375, 382; 707 NW2d 610 (2005).

However, “[w]hether a defendant has been denied the effective assistance of counsel is a mixed

question of fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d

255 (2016). A trial court's findings of fact, if any, are reviewed for clear error, and questions of

law are reviewed de novo. Id. at 188.

Effective assistance of counsel is presumed, and criminal defendants have a heavy burden

of proving otherwise. People v Schrauben, 314 Mich App 181, 190; 886 NW2d 173 (2016).

When claiming ineffective assistance of counsel, it is a defendant's burden to prove “(1)

counsel's performance was deficient, meaning that it fell below an objective standard of

reasonableness, and (2) but for counsel's error, there is a reasonable probability that the outcome

of the defendant's trial would have been different.” Solloway, 316 Mich App at 188,

citing Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A

defendant must show that “but for counsel's deficient performance, a different result would have

been reasonably probable.” People v Armstrong, 490 Mich 281, 290; 806 NW2d 676 (2011),

citing Strickland, 466 US at 694–696. “[D]efendant has the burden of establishing the factual

predicate for his claim of ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6;

594 NW2d 57 (1999).

“As at trial, a defendant is entitled to the effective assistance of counsel in the plea-

bargaining process.” People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014), citing

Lafler v Cooper, 566 US 156, 163; 132 S Ct 1376; 182 L Ed 2d 398 (2012). A defendant

seeking relief for ineffective assistance in this context must also meet Strickland’s 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

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unprofessional errors, the result of the proceeding would have been different.” Douglas, 496

Mich at 592, quoting Lafler, 566 US at 164. “In demonstrating prejudice, the ‘defendant must

show the outcome of the plea process would have been different with competent advice.’ ” Id.

“Where, as here, the alleged prejudice resulting from counsel’s ineffectiveness is that the

defendant rejected a plea agreement and stood trial,”

a defendant must show that but for the ineffective advice of counsel there is a

reasonable probability that the plea agreement 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.]

“Defendant has the burden of establishing the factual predicate of his ineffective assistance

claim.” Douglas, 496 Mich at 592, citing People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).

Defendant’s ineffective assistance of counsel claim hinges on two assertions: (1) that

Reyes miscalculated his guidelines while advising him on the plea agreement; and (2) that Reyes

erroneously advised him to reject the plea agreement based on those miscalculated guidelines.

Defendant contends that as a result, he is entitled to reinstatement of the proposed plea

agreement. “When ineffective assistance of counsel is claimed in the context of a plea, the

pertinent inquiry is whether the defendant tendered the plea voluntarily and understandingly.”

People v Armisted, 295 Mich App 32, 48-49; 811 NW2d 47 (2011), citing People v Swirles

(After Remand), 218 Mich App 133, 138; 553 NW2d 357 (1996).

Defendant’s claim that counsel miscalculated his guidelines is misguided. It is

unreasonable to say that counsel miscalculated the guidelines in advising defendant where

counsel advised that the figures provided were variable estimates. Logically, for a range of

figures to be miscalculated, there must be a “correct” range of figures. It does not follow that a

sentencing estimate can be “miscalculated” where it is inherently nebulous before the sentencing

hearing. Also, defendant cannot logically assert that he rejected the plea agreement due to

miscalculation, because defendant knew his sentence could be up to life in prison. Moreover,

estimates at the time of a plea agreement can be affected by facts that came out during trial that

were not so obvious at the time of the plea agreement. As trial counsel made clear to defendant,

his estimates were not guarantees.

Defendant next argues that he did not make a knowing and intelligent choice to go to

trial, because if he had known that after trial, the trial court could have sentenced him to a longer

minimum sentence than what had been offered under the plea agreement, he would have

accepted the plea agreement. The record does not support defendant’s contention. Rather, our

review of the records supports our conclusion that defendant was well apprised of all possible

outcomes prior to rejecting the plea agreement. Although defendant argues he believed the

longest minimum term of imprisonment would be 48 months if he rejected the plea agreement,

Reyes testified he informed defendant that if convicted, he would likely face a sentence between

12 and 48 months’ imprisonment, or up to 58 months, depending on how the court assessed OV

scores. Reyes further testified that he qualified his advice, stating that the estimated guidelines

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range was only probable, that the court could disagree with his calculations, that his calculations

were “no guarantee,” that the court could upwardly depart from the guidelines, and that he could

be sentenced to life in prison. Further, the trial court expressly informed defendant of a possible

maximum sentence of life imprisonment. Clearly, defendant was advised of the advantages and

disadvantages of rejecting the plea agreement. Padilla v Kentucky, 559 US 356, 370; 130 S Ct

1473; L Ed 2d 284 (2010) (noting “the critical obligation of counsel to advise the client of the

advantages and disadvantages of a plea agreement”); People v Corteway, 212 Mich App 442,

446; 538 NW2d 60 (1995) (explaining that counsel must provide advice during plea negotiations

that is sufficient to allow the defendant “to make an informed and voluntary choice between trial

and a guilty plea”).

Moreover, defendant has failed to establish he did not understand the plea agreement.

Defendant contends that counsel estimated his guidelines incorrectly and did not advise him that

he could receive a minimum sentence after trial that would be higher than the maximum sentence

provided in the plea agreement. This contention is not supported by the record. Defendant was

advised by both counsel and the trial court that he could face a maximum sentence far in excess

of that offered in his plea agreement – life in prison instead of five years. Further, the trial court

found that “Mr. Reyes told him that [the estimated calculation was] not a sure thing,” and Reyes

testified that he advised that the trial court could always depart from the minimum sentencing

guidelines range. Further, before rejecting the plea agreement, defendant testified under oath

that he fully understood it.

Defendant also averred that he understood “life” in prison to mean “like, twenty years” in

prison. We cannot accept defendant’s contention that he possessed a different understanding of

“life” in prison as a basis for vacating his sentence. “A word is but a symbol which may stand

for one of an innumerable number of objects. It is only as custom and usage and agreement

attach a particular meaning to a particular word that it has any significance in relation to either a

tangible or an intangible object.” Satterley v City of Flint, 373 Mich 102, 110; 128 NW2d 508

(1964). “Life” means “natural life,” and not “like twenty years.” Defendant himself admitted

that he had a different understanding of “life” in prison than “everyone else.”

The record shows that defendant knew the terms of the plea available to him, and the

consequences he faced in rejecting that plea. “The decision to plead guilty first, last, and always

rests with the defendant, not his lawyer. . . . [T]he ultimate decision of whether to go to trial

must be made by the person who will bear the ultimate consequence of a conviction.” Smith v

United States, 348 F3d 545, 552 (CA 6, 2003). Given defendant’s unambiguous confirmation in

open court that he understood the plea agreement, coupled with counsel’s assurances to

defendant that nothing about the sentencing estimate they fashioned together was confirmed, we

cannot conclude that defense counsel’s performance fell below an objective standard of

reasonableness. Accordingly, we need not analyze defendant’s claim under the second prong of

Strickland. Further, based on the foregoing, we conclude that where the record clearly supports

the trial court’s finding that defendant knowingly and intelligently rejected the plea agreement,

we are not left with a definite and firm conviction that the trial court clearly erred by denying

defendant’s motion for a new trial. Trakhtenberg, 493 Mich at 47.

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Affirmed.

/s/ William B. Murphy

/s/ Kathleen Jansen

/s/ Brock A. Swartzle

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