The opinion
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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 22, 2021
Plaintiff-Appellee,
v No. 350536
Wayne Circuit Court
CHRISTOPHER ANDREW CANALES, LC No. 19-002316-01-FC
Defendant-Appellant.
Before: TUKEL, P.J., and SAWYER and CAMERON, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of torture, MCL 750.85; unarmed
robbery, MCL 750.530; unlawful imprisonment, MCL 750.349b; assault with intent to do great
bodily harm (AWIGBH), MCL 750.84, felonious assault, MCL 750.82; and assault or assault and
battery (assault and battery), MCL 750.81. Defendant was sentenced, as a fourth-offense habitual
offender, MCL 769.12, to 50 to 75 years’ imprisonment for his torture conviction, 25 to 37 ½
years’ imprisonment for each of his unarmed robbery, unlawful imprisonment, AWIGBH, and
felonious assault convictions, and 93 days’ jail for his assault and battery conviction. On appeal,
defendant argues he was (1) denied due-process when the prosecutor failed to timely disclose
photographs of the victim’s injuries until trial, (2) prejudiced by the prosecutor’s conduct and the
trial court’s failure to enforce the discovery order, (3) denied effective assistance of counsel by
trial counsel’s failure to ensure that defendant had the opportunity to review all of the discovery
before deciding whether to accept a plea offer and failure to call a witness at trial, and (4) as a
result, the trial court erred in its findings of fact, leading this Court to deny the motion to remand
in error. In addition, defendant argues the trial court made a mistake of law during his sentencing,
and the failure to recognize and raise the error by trial counsel and appellate counsel constituted
ineffective assistance of counsel. We affirm, but conclude that trial counsel was ineffective at
sentencing in failing to recognize errors in the presentence investigation report (PSIR), and we
remand solely for resentencing and to correct the PSIR.
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I. FACTS AND PROCEDURAL BACKGROUND
This case arises from the physical assault incident of the victim. Around midnight, on the
day of the incident, the victim was walking home from his friends’ apartment building when he
ran into defendant and codefendant, Clarence Campbell.1 Defendant and Campbell asked the
victim for the money he owed them, which the victim knew was the $20 the victim owed to
“somebody else . . . over a phone.” After insisting he had no money, the victim was dragged by
his hooded sweatshirt by defendant and Campbell into an apartment building. The victim was
dragged into apartment unit one, which he recognized as the place where he had purchased crack
cocaine and heroin in the past. Inside the apartment, the victim saw between five and seven people,
recognizing some of the people but only identifying the apartment’s tenant, Dawn Gilson, and a
man she lived with. In the living room of the apartment, defendant and Campbell punched the
victim and searched him for money, pulling off his clothes. At one point, Campbell found the
victim’s debit card and called the victim’s bank to determine the balance of the account. The
victim testified that defendant and Campbell refused to let him call someone to obtain the money
he owed them. Defendant obtained a stick and started hitting the victim with it until it broke into
two pieces, then defendant and Campbell each started hitting the victim with the pieces of stick.
The victim was then dragged into the bathroom and told to sit on the toilet while defendant and
Campbell cut the victim’s hair with scissors and electric clippers. While attempting to cover his
face with his hands and close his eyes, the victim felt hair spray being sprayed in his face. The
victim heard someone say “it’s flammable[,] . . . [a]nd the next thing you know I hear a lighter go
off and . . . a burning feeling on my face. I open up my eyes real[ly] quick and [my face is] just
burning and it’s on fire.” The victim got in the bathtub and attempted to put out the fire using the
shower curtain. After the fire was extinguished, defendant turned on the hot water to the shower.
The victim attempted to lower the water temperature but defendant told him not to touch the faucet
handle. Defendant eventually turned off the water, turned off the bathroom light, and left the
victim in the bathroom alone. The victim heard a knock at the door to the apartment and defendant
told the victim “to keep quiet or he was gonna kill me.”
Outside the apartment, the responding Detroit Police Officers, Mitchell Griggs and Brent
Miller, heard “a fuss on the inside [of the apartment] like people moving around, closing doors,
that kind of thing.” The door to the apartment was opened by a female occupant, the officers asked
if anybody was injured inside the apartment. After the female responded, Officer Griggs heard
someone yell “[h]elp really loudly.” The officers entered the apartment, finding the victim in the
bathroom, stating that he needed help and “they” would not let him leave.2 After speaking to the
victim, the officers arrested defendant and Campbell for suspected aggravated assault, felonious
assault, and possible kidnapping. The victim was transported to the hospital and remained
hospitalized for his burns for three days.
1
Campbell pleaded guilty to one count of torture.
2
While the officers were at the apartment, Officer Miller wore a body camera that captured the
events as testified by Officer Griggs. The video footage from the body camera was played for the
jury during trial with the exception of redacted sections containing the victim’s personal
information.
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Before trial, defendant was offered a plea agreement, allowing defendant to have pleaded
to the torture charge with a sentence of 12 to 20 years’ imprisonment, with the dismissal of the
remaining counts and fourth-offense habitual offender status. Defendant reviewed the victim’s
medical records and photographs of the victim’s injuries that had been disclosed by the prosecutor,
deciding to reject the plea offer. At trial, the victim testified that he did not have a weapon on his
person, including a piece of brick, but that he had a lighter at some point during the incident; he
did not argue with Gilson inside the apartment; and he was not under the influence of drugs at the
time of the incident, but he had used drugs the morning of the incident. After defendant cross-
examined the victim, the prosecutor sought to admit six photographs of the victim’s injuries taken
at the hospital on the day of the incident. Defendant’s trial counsel objected to the admission,
arguing “these photos have been in existence since the day they were taken on March 7th. There’s
a discovery order . . . requiring a prompt turnover, uh, a mutual discovery of all these items[,] [and]
I’m just getting these yesterday.” As a result, trial counsel argued it was “too late” and
“prejudiced” defendant to admit the photographs now and without proper and timely disclosure.
The trial court allowed the photographs to be admitted, stating:
Trial Counsel: . . . We need to have these in a timely fashion because it
goes into all of the things that develop with a, a defendant’s rep—representation
including the possibility of whether an appropriate plea is appropriate—
Trial Court: Counsel—
Trial Counsel: —for defendant.
Trial Court: —we’re way past that.
Trial Counsel: I know we’re way past that. We have to, we have to have
them. We have to have—
Trial Court: Why?
Trial Counsel: —them early on.
* * *
Trial Counsel: The photographs are gonna be an indication [of] this man’s
injuries.
Trial Court: I know that.
Trial Counsel: Yes.
Trial Court: So what will they tell you about this trial. She wants to
introduce them now.
Trial Counsel: Yeah. I’m saying it’s too late.
Trial Court: Overruled. You can bring the jury in.
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When the prosecutor resumed with redirect examination of the victim and introduction of the
photographs, trial counsel objected and requested a voir dire examination. The victim testified
that he had not seen the photographs before that day, prompting trial counsel’s restated objection
because the victim had not seen the photographs before; however, the trial court overruled the
objection and admitted the photographs. When redirect examination resumed, the victim testified
that the photographs showed the burn marks on his face, sections of his hair that had been cut,
blood on his head, and injuries from the stick.
Defendant elected to testify at trial, giving a different description of the incident. Before
the incident, defendant stated he was at a nearby bar, when his daughter’s grandmother, Karen
Puente, called him, asking to borrow some money. Defendant met Puente to give her money and
then went to Gilson’s apartment to spend the night because he forgot his keys to his own house.
About ten minutes later, defendant was sitting in the living room with about six other people when
the victim, whom defendant recognized as “Robin” and a person that he had sold drugs to a couple
times, arrived at the apartment with a female named Alexis. Defendant suspected the victim was
“high on drugs because he was tweaking . . . like jittery [and] . . . blabbering. He couldn’t stand
still.” Defendant observed the victim and Gilson get into an argument and then the victim “reached
in his pocket and pulled out, uh, a half a brick and like kind of like threatened [Gilson] with it.”
Because defendant thought the victim was going to throw or hit Gilson with the brick, defendant
slammed the victim to the floor, punched him twice, and attempted to grab the brick from him.
Defendant stated that Campbell took the brick from the victim and defendant “held the victim’s
arms down for a minute and told him to go clean up.” At that point, the victim “willingly went to
the bathroom.” Defendant heard the shower turn on, so he went to the bedroom to sleep.
Defendant stated he was awoken by a police officer, telling him to come into the living room.
Defendant denied approaching the victim on the street, demanding money from the victim, hitting
the victim with a stick, removing the victim’s clothing, cutting the victim’s hair, and burning the
victim’s face.
During defendant’s cross-examination, a portion of defendant’s interrogation with police
was played for the jury. In the interrogation, defendant stated that the victim owed money for a
television and drugs but that he only physically restrained the victim and Campbell hit the victim
with the stick. Defendant later admitted during the interrogation that he lied about being asleep at
the time of the incident. At the end of the trial, the jury found defendant guilty of torture, unarmed
robbery, unlawful imprisonment, AWIGBH, felonious assault, and assault and battery. Defendant
was sentenced as delineated above.
After sentencing, defendant filed a timely claim of appeal from the trial court’s judgment
of sentence. With his appellate brief, defendant moved to remand to develop a claim of ineffective
assistance of trial counsel, arguing trial counsel was ineffective for failing to obtain the
photographs of the victim’s injuries before the deadline for defendant to accept a plea offer and
failing to call Puente as a witness. Defendant also argued he was prejudiced by the prosecution’s
withholding of the photographs of the victim’s injuries. This Court granted defendant’s motion to
remand “to allow defendant to file a motion for the relief he deems appropriate and have an
evidentiary hearing and decision whether defendant was denied effective assistance of counsel.”
People v Canales, unpublished order of the Court of Appeals, entered June 18, 2020 (Docket No.
350536).
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On remand to the trial court, defendant argued he was (a) denied due process when the
prosecutor withheld the photographs of the victim’s injuries until the plea offer expired, (b)
prejudiced by the prosecutor’s violation of the discovery order and the trial court’s failure to
enforce the order, and (c) denied effective assistance of counsel for trial counsel’s failure to obtain
the photographs before trial and not calling Puente as a witness. Because of the COVID-19
pandemic, the trial court conducted the People v Ginther, 390 Mich 436; 212 NW2d 922 (1973),
hearing by Zoom technology, as authorized by the Michigan Supreme Court, without objection by
any of the parties. Defendant’s trial counsel, John Holler, testified that on the first day of trial he
received two photographs of the victim’s burn marks on his face allegedly from the incident. As
a result, trial counsel stated that he objected to the photographs:
These were especially egregious to me, they were in violation, clear violation of the
Court’s order of discovery. They were [a] surprise to the defendant and me, and I
also made it clear, I thought, on the record that I needed to have these—this
photograph and another to deal with my client and consult with my client in
evaluating the plea offer.
* * *
Without question it just sabotaged my ability to properly and effectively represent
[defendant] and consulting with him.
However, trial counsel testified that timely disclosure of the photographs would not have made a
difference in his trial strategy. As to calling Puente as a witness, trial counsel testified:
[S]he didn’t go inside the apartment building[,] she just went on her way. So[,] she
was never a witness to any of the—to whatever happened inside the apartment
building that [the victim] says is an assault against his person that resulted in these
burns. . . . I reached out and tried to contact her through another person and didn’t
get much response and then finally I told my—it appeared to me that even if you
take everything that [defendant] is telling me was true then she would apply no
value at all to his defense.
The trial court denied defendant’s motion for a new trial, stating “there was no error on the part of
[trial counsel] in his representation of [defendant].” The trial court concluded that trial counsel’s
performance did not fall below the objective standard of reasonableness because (1) trial counsel
appropriately determined that Puente provided no value to the defense because she was not a
witness to the incident; (2) trial counsel’s inability to effectively negotiate a plea deal because of
the late disclosure did not affect his trial strategy; and (3) trial counsel made a timely objection to
the admission of the photographs. A written order memorializing the trial court’s ruling was
entered the same day.
Shortly thereafter, defendant again moved for remand, arguing the Michigan Department
of Corrections (MDOC) sent two letters to the trial court after defendant’s sentencing that indicated
there were errors in the PSIR that needed to be corrected. Consequently, defendant contended that
the trial court sentenced defendant, relying on the errors, under the mistaken idea that the
mandatory 25-year sentence applied to all felony convictions, instead of only applying to the
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AWIGBH conviction, and erroneously sentenced defendant to a term greater than the 15-year
maximum for his felonious assault conviction because the letters were never mentioned. Because
neither trial counsel nor appellate counsel recognized or addressed this issue, defendant also
argued ineffective assistance of counsel on this basis. In response, plaintiff agreed that the PSIR
incorrectly stated that the 25-year minimum sentence for a violent habitual offender, under MCL
769.12(1)(a), applied to all felony convictions and that defendant’s felonious assault sentence was
limited to not more than 15 years; and therefore, the trial court erred. However, plaintiff argued
remand was not necessary because the sentencing issues could be corrected in this Court’s ultimate
opinion on appeal. This Court denied defendant’s motion to remand “for failure to persuade the
Court of the necessity of a remand at this time.” People v Canales, unpublished order of the Court
of Appeals, entered on March 18, 2020 (Docket No. 350536).
II. ANALYSIS
Defendant was not denied due process or prejudiced by the prosecutor’s failure to timely
disclose photographs of the victim’s injuries until trial or the trial court’s failure to enforce the
discovery order. Further, he was not denied effective assistance of counsel by trial counsel’s
failure to ensure that defendant had the opportunity to review all of the discovery before deciding
whether to accept the plea offer and failure to call Puente as a witness at trial. As a result, the trial
court did not err in its findings of fact, leading this Court to deny the motion to remand in error.
However, the trial court did make a mistake in law during defendant’s sentencing, although the
failure to raise this error by trial counsel and appellate counsel only constituted ineffective
assistance of counsel with regard to trial counsel.
A. STANDARD OF REVIEW
A defendant’s constitutional questions, including due-process rights, are reviewed de novo.
People v Borgne, 483 Mich 178, 184; 768 NW2d 290 (2009). This Court reviews “a trial court’s
decision regarding the appropriate remedy for noncompliance with a discovery order for an abuse
of discretion.” People v Davie, 225 Mich App 592, 597-598; 571 NW2d 229 (1997). Likewise,
this Court reviews the trial court’s decisions regarding the information in a defendant’s PSIR for
an abuse of discretion. People v Lampe, 327 Mich App 104, 120; 933 NW2d 314 (2019). An
abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and
principled outcomes. People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017). “Generally,
‘a defendant is entitled to resentencing where a sentencing court fails to exercise its discretion
because of a mistaken belief in the law.’ ” People v Sexton, 250 Mich App 211, 228; 646 NW2d
875 (2002) (citation omitted). Additionally, a trial court abuses its discretion when the sentence
imposed by the trial court is disproportionate to the seriousness of the circumstances involving the
offense and the offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). If the trial
court selects a sentence that falls within the range recommended under the advisory guidelines,
that sentence is presumptively proportionate. Id. at 658. The reviewing court must affirm a
sentence that falls within the recommended sentencing range absent an error in scoring or reliance
on inaccurate information. People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173
(2016).
In addition, the determination of whether a defendant has been deprived of the effective
assistance of counsel presents a mixed question of fact and law. People v LeBlanc, 465 Mich 575,
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579; 640 NW2d 246 (2002). The trial court’s factual findings are reviewed for clear error, while
its constitutional determinations are reviewed de novo. Id. “A trial court’s factual finding is
clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial
court made a mistake.” People v Wiley, 324 Mich App 130, 165; 919 NW2d 802 (2018) (quotation
marks and citation omitted). “[T]he test for ineffective assistance of appellate counsel is the same
as that applicable to a claim of ineffective assistance of trial counsel.” People v Uphaus, 278 Mich
App 174, 186; 748 NW2d 899 (2008). “Hence, defendant must show that his appellate counsel’s
decision not to raise a claim of ineffective assistance of trial counsel fell below an objective
standard of reasonableness and prejudiced his appeal.” Id. However, when “claims of ineffective
assistance of counsel are unpreserved, our review is limited to errors apparent on the record.”
People v Unger, 278 Mich App 210, 253; 749 NW2d 272 (2008).
B. DISCOVERY
Defendant argues he was denied due-process and prejudiced by the prosecutor’s untimely
disclosure of photographs depicting the extent of the victim’s injuries until trial and the trial court’s
failure to enforce the discovery order. We disagree.
Unlike civil litigation, which primarily only limits discovery by the relevancy of the
information sought and its likelihood to lead to the discovery of admissible evidence, “discovery
in criminal cases is constrained by the limitations expressly set forth in the reciprocal criminal
discovery rule promulgated by our Supreme Court, MCR 6.201.” People v Greenfield, 271 Mich
App 442, 447; 722 NW2d 254 (2006). In fact, “our Supreme Court has plainly stated that MCR
6.201 governs and defines the scope of criminal discovery in Michigan.” Id. “Under due process
principles, the prosecution is obligated to disclose evidence that is both favorable to the defendant
and material to the determination of guilt or punishment.” People v Fink, 456 Mich 449, 454; 574
NW2d 28 (1998). Under MCR 6.201(H), the prosecution has a continuing duty to disclose
“additional information or material subject to disclosure under this rule, without further request[.]”
MCR 6.201(H). If the discovery requirements of MCR 6.201 have been violated, the trial court
has discretion to fashion an appropriate remedy after balancing the interests of the court, the
parties, and the public. Davie, 225 Mich App at 598. This balancing includes the consideration
of the reasons for noncompliance and the resultant actual prejudice, if any. Id. “It requires inquiry
into all the relevant circumstances, including the causes and bona fides of tardy, or total,
noncompliance, and a showing by the objecting party of actual prejudice.” Id. (quotation marks
and citation omitted).
Defendant was not denied due-process by the prosecutor’s disclosure on the first day of
trial of the photographs of the victim’s injuries. To support his argument, defendant primarily
argues that the photographs were taken within a short time after the incident and, therefore, should
have been timely disclosed before trial began. Specifically, defendant contends that if the
prosecutor had timely disclosed the two photographs that emphasized the victim’s burn marks on
his face, defendant would have accepted the plea offer before trial began. We also note that
defendant’s claim of prejudice is solely argued regarding his plea negotiation and does not
challenge the impact of the photographs regarding his conviction. A review of the record indicates
that defendant did timely receive all but two photographs depicting the victim’s injuries but
received the two photographs depicting the victim’s burn marks on the first day of trial. While it
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does appear that there was a delay in delivery to defendant of the two photographs in question, we
do not conclude that such delay was intentional by the prosecutor or prejudicial to defendant.
To start, there is no record that the prosecutor deliberately waited to disclose the
photographs to defendant. Instead, the late disclosure was apparently caused within the police
department by the evidence technician’s late delivery of the photographs to the officer-in-charge.
In fact, we take defendant’s decision not to present any witnesses or evidence on remand to support
his argument as an indication that the prosecutor timely disclosed the photographs to defendant.
As a result, defendant has not supported his argument that the prosecutor purposefully violated the
discovery order to infringe on defendant’s due-process rights. Davie, 225 Mich App at 598.
Even to the extent the discovery order was violated, defendant has not established that the
trial court’s decision to admit the photographs was an abuse of its discretion. In determining
whether to admit the photographs at trial, the trial court heard and overruled defendant’s objection
that he needed to have the photographs “in a timely fashion because it goes into all of the things
that develop with a, a defendant’s rep—representation including the possibility of whether an
appropriate plea is appropriate . . . for defendant.” While the trial court’s balancing of the interests
is not thoroughly outlined in the record, its decision reasonably falls within its discretion. As
stated, there is no record that the prosecutor deliberately failed to comply with the discovery order.
As to actual prejudice to defendant, a review of the record indicates that defendant was aware of
the extent of the victim’s injuries before the trial began, including the burn marks. Specifically,
defendant received the victim’s medical records and reviewed all but two photographs showing
the victim’s injuries, indicating scratches, bruises, missing hair, and the body camera footage from
the night of the incident. With this information, defendant rejected the plea offer and maintained
the defense that the victim caused his own injuries by using a “crack lighter.” In fact, trial counsel
indicated the photographs would not “have made a difference in the strategy of trial[.]”
Accordingly, the trial court’s finding that defendant did not establish actual prejudice from the
prosecutor’s late disclosure is supported by the record. On this basis, we conclude that the trial
court did not abuse its discretion, nor infringe on defendant’s due-process rights, in admitting the
photographs of the victim’s injuries at trial over defendant’s objection.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues he was denied effective assistance of counsel by trial counsel’s
failure to ensure that he had the opportunity to review all of the discovery before deciding whether
to accept a plea offer and the failure to call Puente as a witness at trial. We disagree.
Effective assistance of counsel is presumed and defendant bears a heavy burden to prove
otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). To establish
ineffective assistance of counsel, defendant must show that counsel’s performance fell below an
objective standard of reasonableness, and that the representation so prejudiced defendant that he
was denied the right to a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994).
To establish prejudice, defendant must show a reasonable probability that, but for counsel’s error,
the result of the proceeding would have been different. People v Johnson, 451 Mich 115, 124; 545
NW2d 637 (1996). Defendant must overcome the strong presumption that counsel’s actions
constituted sound trial strategy under the circumstances. People v Toma, 462 Mich 281, 302; 613
NW2d 694 (2000).
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Defendant was not denied effective assistance of counsel for trial counsel’s failure to
ensure that all the photographs had been disclosed by the prosecutor before trial. “The failure to
reasonably investigate a case can constitute ineffective assistance of counsel, but only when such
failure undermines confidence in the trial’s outcome.” People v Anderson, 322 Mich App 622,
630-631; 912 NW2d 607 (2018) (quotation marks and citation omitted). This Court “will not
second-guess counsel on matters of trial strategy, nor will we assess counsel’s competence with
the benefit of hindsight.” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Defendant
contends that trial counsel’s failure to ensure defendant had all of the discovery kept trial counsel
from discovering the two photographs of the victim’s burn marks before trial; and if trial counsel
had ensured defendant had all of the discovery, defendant would have accepted the plea offer
before it expired. However, the record does not indicate whether trial counsel had any reason to
believe that defendant did not already have all of the discovery at the time of trial. Rather, trial
counsel indicated that he and defendant reviewed the victim’s medical records and the photographs
of the victim’s injuries that had been disclosed before trial. Additionally, there is no record that
the prosecution was aware of the two photographs depicting the victim’s burn marks until the first
day of trial. Consequently, there is no evidence that trial counsel should have been aware of the
existence of the photographs depicting the victim’s burn marks or failed to obtain any other
discovery that existed before trial. Further, while we note trial counsel’s delay in objecting to the
photographs by not moving to exclude the photographs on receipt of the prosecutor’s disclosure
after the first day of trial, trial counsel did swiftly object to the admission of the photographs on
the second day of trial.
Even to the extent that trial counsel failed to ensure defendant had all of the discovery
before trial, defendant has not established that the outcome would have been different had the
photographs of the victim’s burn marks been discovered before the plea expired. Defendant
contends that he would have accepted the plea offer if he had reviewed the photographs with the
rest of discovery. However, because defendant had access to the victim’s medical records,
photographs of the victim’s other injuries, and the victim’s statement regarding the incident, we
are not persuaded that the two photographs of the victim’s burn marks would have unequivocally
convinced defendant to accept the plea offer. Likewise, because of the cumulative nature of the
photographs with the victim’s testimony and other photographs of the victim’s injuries, it is
unlikely that the photographs of the victim’s burn marks were determinative of the jury’s verdict.
Instead, defendant’s challenge to trial counsel’s performance appears to arise from his buyer’s
remorse in rejecting the plea offer before trial rather than any actual error by trial counsel. As a
result, we opine defendant was not denied the effective assistance of counsel for failing to ensure
that the prosecutor had disclosed all of the discovery before trial.
In addition, defendant was not denied effective assistance of counsel for trial counsel’s
failure to call Puente as a witness. The decision whether to call or question witnesses is presumed
to be a matter of trial strategy. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012).
Further:
[A] claim of ineffective assistance of counsel premised on the failure to call
witnesses is analyzed under the same standard as all other claims of ineffective
assistance of counsel, i.e., 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
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have been different.” [People v Jurewicz, ___ Mich ___; 948 NW2d 448 (2020),
quoting People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012), and citing
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).]
To support his argument, defendant argues Puente should have been called as a witness at trial to
corroborate some of defendant’s testimony regarding the incident. A review of the record
establishes that trial counsel was aware of Puente; however, he did not pursue her as a witness
because “she was never a witness to . . . whatever happened inside the apartment building[.]” On
this basis, excluding Puente as a witness was not an objectively unreasonable decision because
Puente’s testimony would not have assisted defendant’s defense or corroborated defendant’s claim
that the victim caused his own injuries. People v Davis, 250 Mich App 357, 369; 649 NW2d 94
(2002).
To the extent that trial counsel failed to call Puente as an allegedly favorable witness for
the defense, defendant has not established that the outcome of his trial would have been different
had Puente testified. Defendant suggests that Puente would have corroborated his version of the
events, including the time of his arrival at the apartment building before the victim arrived.
However, defendant’s argument is speculative because Puente was not responsive to trial counsel’s
attempts to contact her. Additionally, even Puente’s alleged testimony that she walked with
defendant to the apartment building and watched him go inside, would not have conclusively
established that defendant did not commit the acts alleged by the victim. On this basis, because
Puente’s testimony would not have corroborated the events that occurred at the time of the incident,
the decision to not call Puente as a witness was a matter of trial strategy. Regardless, defendant
has not provided an affidavit of what Puente’s proposed testimony would have been at trial, making
defendant’s corroboration argument purely speculative. People v Avant, 235 Mich App 499, 508;
597 NW2d 864 (1999). Accordingly, defendant was not deprived of effective assistance of counsel
because Puente’s testimony would not have supported defendant’s denial that the incident, as the
victim testified, occurred. Instead, it is evident that trial counsel’s strategy was to focus on the
victim’s drug use and credibility as a witness, which was reasonably persuasive given the
prosecutor’s initial plea offer of a minimum sentence of 12 years’ imprisonment for the torture
charge and dismissal of the remaining counts. As a result, we opine defendant was not denied the
effective assistance of counsel for failing to call Puente as a witness.
D. REMAND
Defendant further argues the trial court erred in its findings of fact, which led this Court to
deny the motion to remand in error. To support his argument, defendant contends the trial court
only addressed whether trial counsel provided effective assistance at trial without discussing the
prejudice that resulted from the prosecutor’s alleged violation of the discovery order. However,
we note this Court’s order to remand was for the stated purpose to conduct “an evidentiary hearing
and decision whether defendant was denied the effective assistance of counsel.” Canales, unpub
order at 1. “When a case is remanded by an appellate court, proceedings on remand are limited to
the scope of the remand order.” People v Canter, 197 Mich App 550, 567; 496 NW2d 336 (1992).
As stated, “[a] trial court’s factual finding is clearly erroneous if the reviewing court is left with a
definite and firm conviction that the trial court made a mistake.” Wiley, 324 Mich App at 165.
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At the Ginther hearing, defendant argued, in addition to ineffective assistance of counsel,
that he was denied due process when the prosecutor withheld the photographs of the victim’s
injuries until the plea offer expired, and was prejudiced by the prosecutor’s violation of the
discovery order and the trial court’s failure to enforce the order. The trial court concluded that
“based on the testimony and evidence there was no violation of [defendant’s] due process right on
this record.” Moreover, defendant reviewed all of the discovery and was given time to consider
whether to accept the plea offer before it expired. Notably, after the prosecutor disclosed the two
additional photographs at trial, defendant did not express any desire to reconsider his decision to
reject the plea offer to the trial court or prosecutor. Rather, the only noticeable effect the
photographs appeared to have on defendant was a request for an amended plea offer of 4 to 20
years’ imprisonment, which was a significant reduction from the original 12 years’ imprisonment
sentence. On this basis, we conclude that the trial court addressed the prosecutor’s disclosure of
the photographs on remand, even if briefly, finding that the disclosure did not affect defendant’s
due-process rights. As stated, defendant has not supported his argument that the prosecutor
purposefully violated the discovery order, infringing on defendant’s due-process rights, nor did
the trial court abuse its discretion or infringe on defendant’s due-process rights by admitting the
photographs of the victim’s injuries at trial over defendant’s objection. Further, we note that the
two photographs disclosed at trial were, at best, cumulative of the victim’s medical records and
the previously disclosed photographs, indicating that defendant had all the relevant information
available to him when he decided to reject the plea offer. Therefore, the trial court did not err in
its findings of fact, which led this Court to deny the motion to remand.
E. PSIR
Defendant argues the trial court erred in sentencing defendant, relying on the PSIR that
inaccurately stated that the violent offender provision of the fourth-offense habitual offender
statute had a 25-year mandatory minimum for all felony counts. We agree to the extent that remand
is appropriate for the task of resentencing defendant under the correct and applicable statutes and
amendment of the PSIR. Defendant also asserts trial counsel and appellate counsel were
ineffective for failing to ascertain the trial court’s mistake of law at sentencing and to seek
correction of this error. While trial counsel was ineffective at sentencing, appellate counsel noted
the error and has sought correction.
The PSIR “is an information-gathering tool for use by the sentencing court.” Lampe, 327
Mich App at 120 (quotation marks and citation omitted). In addition to the trial court’s use of the
PSIR at sentencing, the PSIR also follows a defendant to prison and can have ramifications related
to security classification and parole. Id. The information in the PSIR “is presumed to be accurate,
and the defendant has the burden of going forward with an effective challenge, but upon assertion
of a challenge to the factual accuracy of information, a court has a duty to resolve the challenge.”
Id. (quotation marks and citation omitted). “If the court finds that challenged information is
inaccurate or irrelevant, that finding must be made part of the record and the information must be
corrected or stricken from the report.” Id. (quotation marks and citation omitted).
The trial court erred in sentencing defendant, relying on the PSIR that inaccurately stated
that the violent offender provision of the fourth-offense habitual offender statute had a 25-year
mandatory minimum for all felony counts. A review of the record indicates that defendant was
sentenced using a PSIR that deemed him to be a violent habitual offender, under MCL
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769.12(1)(a). The statute requires that defendant be convicted of a “serious crime” to receive the
mandatory minimum sentence of 25 years:
If the subsequent felony is a serious crime or a conspiracy to commit a serious
crime, and 1 or more of the prior felony convictions are listed prior felonies, the
court shall sentence the person to imprisonment for not less than 25 years. Not more
than 1 conviction arising out of the same transaction shall be considered a prior
felony conviction for the purposes of this subsection only. [MCL 769.12(1)(a).]
A serious crime is defined by the statue as “an offense against a person in violation of section 83,
84, 86, 88, 89, 317, 321, 349, 349a, 350, 397, 520b, 520c, 520d, 520g(1), 529, or 529a of the
Michigan penal code[.]” MCL 769.12(6)(c). On this basis, the only crime that defendant was
convicted of that qualified as a serious crime was his AWIGBH conviction, i.e., MCL 750.84.
However, the PSIR broadly indicates that all of defendant’s convictions, except for assault and
battery, were subject to the 25-year mandatory minimum sentence. Because this amounts to an
incorrect statement of law, the PSIR requires correction to this effect and resentencing is required.
Similarly, the trial court erred in sentencing defendant to 25 to 37-½ years’ imprisonment
for his felonious assault conviction. Under MCL 769.12(1)(c):
If the subsequent felony is punishable upon a first conviction by imprisonment for
a maximum term that is less than 5 years, the court, except as otherwise provided
in this section or section 1 of chapter XI, may sentence the person to imprisonment
for a maximum term of not more than 15 years. [MCL 769.12(1)(c).]
The felonious assault statute states that “a person who assaults another person with . . . [a]
dangerous weapon . . .is guilty of a felony punishable by imprisonment for not more than 4
years[.]” MCL 750.82(1). On this basis, defendant’s maximum sentence for felonious assault
could not be greater than 15 years’ imprisonment. However, the PSIR indicates that defendant
was subject to a maximum sentence for this charge of 25 years. Because this also amounts to an
incorrect statement of law, the PSIR requires correction to this effect and resentencing is
necessitated.
We note that the prosecution agreed with defendant’s argument that the PSIR required
correction as stated above. Because the violent habitual offender statute was included in the PSIR
as applying to all of defendant’s felony convictions and defendant’s maximum sentence for his
felonious assault conviction exceeds the statutory maximum sentence, the PSIR is not accurate.
Although the MDOC sent two letters to the trial court in an attempt to correct these errors, a review
of the record does not indicate whether the trial court was aware of the errors in the PSIR or the
letters. In fact, we suspect the trial court only first became aware of the errors when briefly
addressed at the Ginther hearing:
Appellate Counsel: I did have one other area that I forgot to address on
direct. I don’t know if the Court minds me doing this. Subsequent to the
representation, have you received copies of letters from the [Department] of
Correction[s] regarding Mr. Canales sentence?
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Trial Counsel: Yeah, I have. There’s a—there was—they sent a letter to
the Judge saying the judgment of sentence needed to be corrected. It doesn’t affect
his overall length of sentence, but there’s some errors on it that need to be corrected
and I thought that Judge Callahan or someone was going to do that sua sponte but
it doesn’t appear like it. And I followed up with the Department of Corrections. I
never filed a motion to correct the judgment, but yes I did. And it looks like it’s
never been done.
On this basis, remand is appropriate for the task of correcting the PSIR to omit the violent offender
provision of the fourth-offense habitual offender statute for all of defendant’s felony convictions,
except AWIGBH, and to correct the maximum sentence for defendant’s felonious assault
conviction.
Further, resentencing is also appropriate to determine whether the trial court’s sentence
was grounded on an accurate recitation of the statutes. As stated, it is unclear whether the trial
court was under the impression that the 25-year minimum sentence, under MCL 769.12(1)(a),
applied to all the felony convictions or only AWIGBH. At sentencing, trial counsel requested a
minimum sentence of 25 years, stating “I think that the 25 years minimum itself I think is more
appropriate for a case like this.” The trial court proceeded to sentence defendant to “the minimum
of 25 years” for felonious assault, AWIGBH, unlawful imprisonment, and unarmed robbery. On
this basis, it would appear that the trial court sentenced defendant to a 25-year minimum sentence
for these felony convictions in conjunction with the violent offender provision of the fourth-
offense habitual offender statute, which, as stated above, constitutes a misapplication of the law.
Therefore, remand is also appropriate for the task of resentencing defendant under the correct and
applicable statutes highlighted above.
In addition, defendant argues he was denied effective assistance of counsel for the failure
of trial counsel and appellate counsel to identify or raise the errors in the PSIR. We agree to the
extent that trial counsel was ineffective but disagree in regard to appellate counsel.
To start, we note that a claim of ineffective assistance of counsel must be raised below in
a motion for a new trial or an evidentiary hearing under Ginther. People v Snider, 239 Mich App
393, 423; 608 NW2d 502 (2000). However, because defendant argued for the first time on appeal
that he was denied effective assistance of counsel for trial counsel’s and appellate counsel’s failure
to discover the error in the PSIR, this issue is unpreserved for appellate review, limiting our review
to “errors apparent on the record.” Unger, 278 Mich App at 253.
“The Court uses the same legal standard for ineffective assistance of counsel when
scrutinizing the performance of trial counsel and appellate counsel.” People v Lopez, 305 Mich
App 686, 693; 854 NW2d 205 (2014). As stated, effective assistance of counsel is presumed and
defendant bears a heavy burden to prove otherwise. Rockey, 237 Mich App at 76. To establish
ineffective assistance of counsel, defendant must show that counsel’s performance fell below an
objective standard of reasonableness, and that the representation so prejudiced defendant that he
was denied the right to a fair trial. Pickens, 446 Mich at 338. To establish prejudice, defendant
must show a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. Johnson, 451 Mich at 124. Defendant must overcome the strong presumption
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that counsel’s actions constituted sound trial strategy under the circumstances. Toma, 462 Mich
at 302.
Defendant was denied effective assistance of counsel for trial counsel’s failure to recognize
and address the errors in the PSIR at sentencing. We agree with defendant that trial counsel should
have discovered the errors in the PSIR. At sentencing, trial counsel explicitly stated that he had
reviewed the PSIR, and indicated that the violent offender habitual provision of the fourth-offense
habitual offender statute was applied correctly. As a result of trial counsel’s failure, defendant was
prejudiced because he was sentenced using an inaccurate PSIR, which the trial court appeared to
rely on, involving a mistake of law. Therefore, defendant was denied effective assistance by trial
counsel’s failure to recognize and address the errors in the PSIR.
Conversely, defendant was not denied effective assistance of counsel for appellate
counsel’s failure to raise the errors in the PSIR. A review of the record indicates that appellate
counsel did identify the errors in the PSIR and, at a minimum, attempted to raise the issue at the
Ginther hearing when questioning trial counsel as highlighted above. Because appellate counsel
recognized the errors in the PSIR and is actively seeking remand and resentencing to correct the
errors in defendant’s sentencing, we opine that appellate counsel has provided effective assistance
of counsel at this time.
III. CONCLUSION
Remanded to the extent necessary to correct the PSIR and to resentence defendant under
the correct and applicable statutes. We do not retain jurisdiction.
/s/ Jonathan Tukel
/s/ David H. Sawyer
/s/ Thomas C. Cameron
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