People of Michigan v. Javon Robert Dabney

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

March 21, 2024

Plaintiff-Appellee,

v No. 361972

Wayne Circuit Court

JAVON ROBERT DABNEY, LC No. 21-000850-01-FC

Defendant-Appellant.

Before: CAVANAGH, P.J., and JANSEN and MALDONADO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of conspiracy to commit first-degree

premeditated murder, MCL 750.157a & MCL 750.316(1)(a), armed robbery, MCL 750.529, three

counts of assault with intent to commit murder (AWIM), MCL 750.83, carrying a concealed

weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f(1), and six counts

of possession of a firearm during the commission of a felony, second offense, MCL 750.227b.

The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to

concurrent prison terms of paroleable life imprisonment for the conspiracy conviction, 40 to 60

years each for the armed robbery and AWIM convictions, and 5 to 20 years each for the CCW and

felon-in-possession convictions, to be served consecutive to six concurrent five-year terms of

imprisonment for the felony-firearm convictions. We affirm.

I. FACTUAL OVERVIEW

Defendant’s convictions arise from his participation with Michael Allen in the December

5, 2018 armed robbery of Sammy’s Appliance Store in Detroit and the nonfatal shootings of store

personnel. The prosecution presented evidence that on December 5, defendant called the store

several times to complain that appliances he purchased were not working. Subsequently,

defendant visited the store twice, upset and continuing to complain about the appliances. During

his second visit, defendant appeared very angry and requested a refund for the appliances. The

store owner and an employee, who are both Arabic, told defendant that the store’s policy, which

was printed on his receipt, did not permit refunds. Defendant was told to leave and he threatened

the employees before leaving the store. Approximately 30 minutes later, Allen entered the store,

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demanded the location of the “Arabics,” shot two employees, and fired shots toward a third

employee before stealing the receipt books and fleeing the store.

The prosecution’s theory at trial was that Allen, “the brawn,” was acting on behalf of

defendant, who was “the brains” and the person who was angry with the store’s owners. Allen,

who testified at trial pursuant to a plea agreement, claimed that defendant picked him up on

December 5 and asked him to kill the Arab owners of the appliance store. Defendant drove him

to the store, gave him a .40-caliber pistol, instructed him to take the receipt books after killing the

owners, and dropped him off after the episode. Defendant gave Allen, who was addicted to drugs

and alcohol at the time, approximately $18 and three packets of heroin for shooting the victims.

The defense denied that defendant was involved in this incident, and argued that Allen was not a

credible witness and there was nothing to prove that Allen and defendant were associates.

II. EFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that he is entitled to a new trial because defense counsel was ineffective

in several respects. We disagree.

A claim alleging ineffective assistance of counsel presents a mixed question of law and

fact. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002); People v Russell, 297 Mich

App 707, 715; 825 NW2d 623 (2012). Questions of law are reviewed de novo, and a trial court’s

findings of fact are reviewed for clear error. Id. “To demonstrate ineffective assistance of counsel,

a defendant must show that his or her attorney’s performance fell below an objective standard of

reasonableness under prevailing professional norms and that this performance caused him or her

prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013). “To demonstrate

prejudice, a defendant must show the probability that, but for counsel’s errors, the result of the

proceedings would have been different.” Id. The effective assistance of counsel is presumed, and

the burden is on the defendant to establish the contrary. People v Roscoe, 303 Mich App 633, 644;

846 NW2d 402 (2014). The defendant also has the burden of establishing the factual predicate of

his ineffective-assistance-of-counsel claim. People v Douglas, 496 Mich 557, 592; 852 NW2d

587 (2014).

A. FAILURE TO CALL AN ALIBI WITNESS AND BRITTANY JOHNSON, AND TO USE

PRIVATE INVESTIGATOR INFORMATION

Defendant first asserts that defense counsel was ineffective for failing to call two witnesses,

his uncle (who “could have testified as to [defendant’s] whereabouts at the time of the offense”),

and Brittany Johnson (“who would have reported what Allen told her about the shooting and never

mention[ed] [defendant]”). Decisions about defense strategy, including whether to call witnesses,

are matters of trial strategy, People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999), and

counsel has wide discretion in matters of trial strategy, People v Heft, 299 Mich App 69, 83; 829

NW2d 266 (2012).

Defendant claims that he informed defense counsel that his uncle could offer an alibi, and

it is apparent that counsel was aware of Johnson because she gave a statement to the police and

her name was mentioned during trial. Defendant has not overcome the presumption that defense

counsel reasonably declined to call these two witnesses for various reasons, including that their

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testimony would not have been helpful, and might have been harmful, to the defense. Although

defendant asserts that the proposed witnesses’ testimony would have been exculpatory, he has not

provided any witness affidavits, or identified any other evidence of record, showing what

testimony the witnesses would have offered if called. Indeed, defendant has not even identified

his uncle. Further, absent such a showing, defendant cannot establish that he was prejudiced by

defense counsel’s failure to call his uncle or Johnson as witnesses. See Nix, 301 Mich App at 207.

Accordingly, defendant has not demonstrated that defense counsel was ineffective for failing to

call these witnesses at trial.1

B. ADVISING DEFENDANT NOT TO TESTIFY

Defendant argues that defense counsel was ineffective for advising him not to testify

because he had a prior conspiracy conviction. He asserts that if he had been called as a witness,

he would have testified that he did not know Allen.

A criminal defendant has a fundamental constitutional right to testify at trial. US Const,

Am XIV; Const 1963, art 1, §§ 17, 20. “Although counsel must advise a defendant of this right,

the ultimate decision whether to testify at trial remains with the defendant.” People v Bonilla–

Machado, 489 Mich 412, 419; 803 NW2d 217 (2011). The decision to testify or not to testify is a

strategic one “best left to an accused and his counsel.” People v Martin, 150 Mich App 630, 640;

389 NW2d 713 (1986). “If the accused expresses a wish to testify at trial, the trial court must grant

the request, even over counsel’s objection.” People v Simmons, 140 Mich App 681, 685; 364

NW2d 783 (1985). “[I]f defendant . . . decides not to testify or acquiesces in his attorney’s

decision that he not testify, the right will be deemed waived.” Id. (quotation marks and citation

omitted).

Defendant has not demonstrated that defense counsel was ineffective for advising him

against testifying and not calling him as a witness. It is clear from the record that defendant and

defense counsel discussed whether defendant should testify. The decision whether to call

defendant as a witness was a matter of trial strategy, Russell, 297 Mich App at 716, for which

counsel has wide discretion, Heft, 299 Mich App at 83, and defendant has not identified or offered

any evidence to overcome the strong presumption of sound strategy in counsel’s advice that

defendant not testify. Further, there is no indication in the record that defendant expressed a desire

to testify to counsel. To the contrary, the record shows that the trial court questioned defendant at

length about his decision not to testify, which included the following exchange:

1

As part of this claim, defendant also states that defense counsel was ineffective for failing “to use

information from a private investigator,” but he fails to provide any information about what a

private investigator supposedly discovered and does not otherwise discuss this claim in his

analysis. “An appellant may not merely announce his position and leave it to this Court to discover

and rationalize the basis for his claims[.]” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d

480 (1998). A defendant abandons his claims when he fails to make a meaningful argument in

support of his position. See MCR 7.212(C)(7); People v Payne, 285 Mich App 181, 188; 774

NW2d 714 (2009). Consequently, defendant has abandoned his claim that defense counsel was

ineffective for failing to use information from a private investigator.

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The court: And, Sir, you understand that as the defendant in this case, you

have the absolute right to remain silent?

Defendant: Yes.

The court: And if you choose to remain silent, the jury will be instructed

they can’t use it against you in any way in making their decision. Do you

understand that?

Defendant: Yeah.

The court: But you also have the right to waive that right to remain silent,

take the stand, and tell your version of the facts. Do you understand that?

Defendant: Yes.

The court: And have you had an opportunity to discuss with your attorney

whether you wish to testify or not testify in this case?

Defendant: Yeah.

The court: And what is your decision?

Defendant: Not to testify.

The court: Okay. And has anyone promised you anything to get you to

waive your right to take the stand?

Defendant: No.

The court: Has anyone threatened or coerced you in any way to waive your

right to testify?

Defendant: No.

The court: It’s your own free and voluntary decision?

Defendant: Yes.

The court: You understand [defense counsel] can give you advice, but it’s

ultimately your decision to make?

Defendant: Right.

The court: And are you satisfied with [defense counsel’s] advice and

counsel that he’s given you with regard to this decision?

Defendant: Yes, Ma’am.

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Defendant does not claim that he was ignorant of his right to testify, or that defense counsel

coerced him into not testifying. Based on the foregoing, defendant cannot show that defense

counsel was ineffective for advising him not to testify.

C. FAILURE TO CALL A CELL PHONE EXPERT

Defendant also asserts that defense counsel should have called a defense cell phone expert

to attack the prosecution’s cell phone tracking testimony. A defendant cannot establish his claim

of ineffective assistance of counsel using speculation that an expert would have testified favorably.

People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009). In this case, defendant has not

submitted an offer of proof regarding the substance of any testimony a defense expert could have

offered.2 Defendant’s mere speculation that an expert might be able to provide unspecified

favorable testimony is insufficient to show that defense counsel’s failure to call an expert was

objectively unreasonable, or that there is a reasonable probability that the outcome of trial would

have been different if an expert had been called. See Heft, 299 Mich App at 83; Rockey, 237 Mich

App at 76. Accordingly, defendant has not demonstrated that defense counsel was ineffective for

failing to call a defense expert.

D. FAILURE TO REQUEST THE ADDICT-INFORMER JURY INSTRUCTION

Defendant next faults defense counsel for failing to request M Crim JI 5.7, a jury instruction

on addict-informer testimony, in relation to Allen, who described himself as a “[d]rug addict,

loser.” M Crim JI 5.7 provides:

(1) You have heard the testimony of __________, who has given

information to the police in this case. The evidence shows that [he / she] is addicted

to a drug, namely __________.

(2) You should examine the testimony of an addicted informer closely and

be very careful about accepting it.

(3) You should think about whether the testimony is supported by other

evidence, because then it may be more reliable. However, there is nothing wrong

with the prosecutor using an addicted informer as a witness. You may convict the

defendant based on such a witness’s testimony alone if you believe the testimony

and it proves the defendant’s guilt beyond a reasonable doubt.

(4) When you decide whether to believe [name witness], consider the

following:

2

This Court previously granted defendant’s motion to hold this appeal in abeyance until “after the

completion of [a] report by defendant’s expert concerning the extraction and analysis of the

cellphones at issue.” People v Dabney, unpublished order of the Court of Appeals, entered October

10, 2023 (Docket No. 361972). However, defendant later notified this Court that his expert was

unable to perform the extraction and analysis.

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(a) Did the fact that this witness is addicted to drugs affect

[his / her] memory of events or ability to testify accurately?

(b) Does the witness’s addiction give [him / her] some

special reason to testify falsely?

(c) Does the witness expect a reward or some special

treatment or has (he / she) been offered a reward or been promised

anything that might lead (him / her) to give false testimony?

(d) Has the witness been promised that (he / she) will not be

prosecuted for any charge, or promised a lighter sentence or allowed

to plead guilty to a less serious charge? If so, could this have

influenced (his / her) testimony?

(e) Was the witness’s testimony falsely slanted to make the

defendant seem guilty because of the witness’s own interests or to

remove suspicion from others, or because (he / she) feared

retaliation from others in drug trafficking?

(f) Was the witness affected by the fear of being jailed and

denied access to drugs?

(g) Does the witness have a past criminal record?

(5) In general, you should consider an addicted informer’s testimony more

cautiously than you would that of an ordinary witness. You should be sure you have

examined it closely before you base a conviction on it. [Brackets in original.]

The use note for M Crim JI 5.7 states that the

instructions are based on similar instructions on accomplice testimony. Upon

request the trial court and the prosecutor must disclose any leniency or immunity

granted the witness or any reasonable expectations of leniency resulting from

contact with the prosecutor. This is a cautionary instruction to be used where the

uncorroborated testimony of an addict informant is the only evidence linking the

accused with the alleged offense.

“Trial counsel is responsible for preparing, investigating, and presenting all substantial

defenses,” and “[f]ailing to request a particular jury instruction can be a matter of trial strategy.”

People v Thorne, 322 Mich App 340, 347; 912 NW2d 560 (2017) (quotation marks and citations

omitted). Due process requires that the trial court “properly instruct the jury so that it may correctly

and intelligently decide the case.” People v Clark, 453 Mich 572, 584-585; 556 NW2d 820 (1996).

To that end, the jury instructions “must include all the elements of the crime charged, and must

not exclude from jury consideration material issues, defenses or theories if there is evidence to

support them.” People v Armstrong, 305 Mich App 230, 240; 851 NW2d 856 (2014) (quotation

marks and citation omitted). Jury instructions are, however, reviewed in their entirety to determine

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whether any error requiring reversal occurred. People v Kowalski, 489 Mich 488, 501; 803 NW2d

200 (2011). An imperfect instruction will not warrant reversal if the instructions, examined as a

whole, fairly presented the issues to be tried and sufficiently protected the defendant’s rights. Id.

at 501-502.

Considering the evidence presented in this case and the trial court’s other jury instructions,

defense counsel’s decision not to request an addict-informer instruction was not objectionably

unreasonable, and did not prejudice defendant. While Allen described himself as a drug and

alcohol addict, M Crim JI 5.7 “is to be used where the uncorroborated testimony of an addict

informant is the only evidence linking the accused with the alleged offense.” People v McKenzie,

206 Mich App 425, 432; 522 NW2d 661 (1994) (emphasis added). In this case, there was other

evidence linking defendant to the offenses. In particular, defendant was linked to the shooting

because, approximately 30 minutes earlier, he visited the store and became very argumentative

with the Arabic store personnel and threatened them. Witnesses also testified that when Allen

arrived at the store, he stated that he was looking for the “Arabics” and opened fire. This

information led police witnesses, who were unaware of Allen’s identity at the time, to suspect that

defendant may have facilitated the shooting. Indeed, store employees testified that defendant was

very angry as he argued with the owner and an employee, and before leaving the store after his

second visit that day, he said: “Don’t be surprised if something happen to you all before the night

over with.” Shortly thereafter, Allen entered the store looking for the Arabic store personnel,

ultimately fired multiple shots, and stole only the receipt books before fleeing. Furthermore,

Allen’s testimony regarding where defendant picked him up before the shooting, when they went

to the appliance store, and where defendant dropped him off after the shooting was corroborated

by cellular phone tracking evidence for defendant’s cell phone. Because Allen’s testimony was

not uncorroborated or the only evidence linking defendant to the alleged offenses, the addict-

informer instruction under M Crim JI 5.7 was inapplicable. Id. Therefore, defense counsel was

not ineffective for failing to request it.

Furthermore, the use notes for M Crim. JI 5.7 recognize that there may be other instructions

that may also be applicable. As the trial court recognized when denying defendant’s motion for

an evidentiary hearing or a new trial on this basis, Allen’s addiction to drugs and alcohol at the

time of the shooting and the details of his plea agreement, including that Allen agreed to testify

against defendant pursuant to a sentence agreement for a reduced sentence, were issues that were

fully explored at trial. The court also observed that it gave other instructions that adequately

advised the jury in a manner similar to M Crim JI 5.7 on how to evaluate Allen’s credibility. In

particular, the court gave instructions on how to evaluate the testimony from an undisputed

accomplice, and the effect of a plea agreement when evaluating a witness’s credibility. The court

instructed that Allen had already been convicted of the same crime and was an accomplice,

instructed the jury to “examine an accomplice’s testimony closely and be very careful about

accepting it,” and to consider, inter alia, (1) was his “testimony falsely slanted to make the

defendant seem guilty because of the accomplice’s own interests, bias, or for some other reason,”

(2) has “the accomplice been offered a reward or been promised anything that might lead him to

give false testimony,” and (3) has “the accomplice been promised that he will not be prosecuted,

or promised a lighter sentence, or allowed to plead guilty to a less serious charge? If so, could this

have influenced his testimony?” Further, the trial court instructed the jury that there was evidence

that Allen “made an agreement with the prosecutor about charges against him, and a Sentence

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Agreement in exchange for his testimony in this trial,” that he “faces a possible penalty of up to

life or any term of years as a result of those charges,” and “to consider this evidence only as it

relates to [his] credibility as it may tend to show [his] bias or self-interest.” The trial court’s

instructions also advised the jury that in determining whether a witness was credible, it should

consider factors such as whether “anything else [was] going on that might have distracted the

witness,” “[d]id the witness seem to have a good memory,” “[d]oes the witness have any bias,

prejudice, or personal interest in how this case is decided,” and “does the witness have any special

reason to lie.” These instructions adequately advised the jury to consider the impact of Allen’s

disposition, whether he had a motive to lie, and his plea agreement when evaluating his credibility.

In sum, because M Crim. JI 5.7 did not precisely fit the facts of this case and because the

trial court’s remaining instructions adequately advised the jury on how to consider Allen’s

credibility, defendant cannot show a reasonable probability that, but for counsel not requesting the

addict-informer instruction, the result of the proceedings would have been different. See Nix, 301

Mich App at 207.

E. FAILURE TO OBJECT TO THE PROSECUTOR’S IMPROPER VOUCHING

Defendant also asserts that the prosecutor, who “is not a human lie detector,” improperly

vouched for Allen’s honesty, and that defense counsel was ineffective for failing to object to the

following comments by the prosecutor during closing argument:

And Michael Allen had nothing to lose. Michael Allen gained nothing out

of this. He didn’t gain anything.

Now, there was questioning about him gaining, oh, a shorter sentence versus

a longer sentence. Last time I checked, doing 14 to 20 years in prison is a pretty

significant sentence.

And he also, what he indicated, he was risking his life to testify. You cannot

quantify that, ever. You cannot quantify your life ever with regards to that. So he

may be doing 14 to 20, but he’s risking his life is what he said.

A prosecutor may not vouch for the credibility of a witness by conveying that he or she has

some special knowledge that the witness is testifying truthfully. People v Knapp, 244 Mich App

361, 382; 624 NW2d 227 (2001). However, a “prosecutor may fairly respond to an issue raised

by the defendant[,]” People v Brown, 279 Mich App 116, 135; 755 NW2d 664 (2008), and may

argue the evidence and all reasonable inferences that arise from the evidence as they relate to the

prosecutor’s theory of the case. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995)

(quotation marks and citation omitted). Prosecutors are also permitted to argue from the facts in

evidence that a witness is worthy of belief. People v Cain, 299 Mich App 27, 36; 829 NW2d 37

(2012), vacated in part on other grounds 495 Mich 874 (2013).

The challenged remarks, viewed in context, were part of a permissible argument regarding

credibility and were responsive to defense counsel’s implication and assertions throughout trial

that Allen was not credible. The prosecutor did not refer to any special knowledge, beyond the

evidence presented at trial, to indicate that she knew Allen was truthful. The prosecutor argued

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that Allen should be believed because there was evidence that (1) defendant was the person who

had a connection to the appliance store, i.e., defendant argued with store personnel and threatened

them approximately 30 minutes before the shooting, (2) Allen had no independent connection to

the store and did not take anything of value for him from the store, (3) tracking of defendant’s cell

phone corroborated Allen’s testimony regarding his and defendant’s movements at the time of the

episode, and (4) that Allen’s plea deal still resulted in a significant sentence of 14 years, and,

according to Allen, placed his life at risk because he chose to testify for a reduced sentence.

Further, similar to Cain, it was the defense theory that Allen was not credible, and the

prosecutor was permitted to respond that he had no motive to lie. See Cain, 299 Mich App at 37.

For example, in opening statement, defense counsel stated: [T]here’s no videos, there’s no audio,

there’s nobody but Mr. Allen saying these things happened . . . . But if you think about it, it doesn’t

make sense.” Defense counsel cross-examined Allen at length about his account of what occurred,

and elicited that (1) Allen was experiencing the effects of withdrawal from heroin and alcohol at

the time he committed the shooting, (2) Allen had no idea about defendant’s alleged dispute with

the Arabic owners before the shooting, (3) Allen initially told the police that he “don’t even

remember what [defendant] really said[,]” (4) that Allen admitted that there was never any price

established for Allen to commit the shooting supposedly for defendant, and (5) that Allen was a

member of the Latin Kings gang. Defense counsel questioned Allen’s alleged relationship with

defendant, emphasizing that they were not friends on any social media platform. Defense counsel

also questioned Allen about his plea agreement, eliciting that Allen asked the police “20 or 30

times” how much he could reduce “the time” he was facing for the crimes. Counsel specifically

questioned Allen about the numerous charges he was originally facing, the charges that were

dismissed, whether he was originally facing life imprisonment, and how his sentence was

significantly reduced from a possible life sentence because he agreed to testify against defendant.

Allen agreed when defense counsel stated that Allen was “not testifying because . . . it’s the right

thing to do,” but because of the “time reduction.” In closing argument, defense counsel reiterated

and summarized the defense theory, arguing, inter alia, that (1) Allen testified against defendant

knowing what “he has to say” because of his plea agreement, (2) drug users are “much better liars

than any other people,” (3) Allen has no social media connections with defendant “[a]nd everybody

has social media” to show that they were friends, (4) Allen had a motive to lie because he

“obviously received a sentence reduction,” and (5) this case was not the first time that Allen

testified “about somebody in order to get a better deal for himself.” Defense counsel’s opening

statement, cross-examination of Allen, and closing argument clearly involved challenges to the

credibility of Allen’s account of the offenses.

In sum, the prosecutor’s argument was responsive to the defense theory presented

throughout trial that Allen was untruthful. Further, the prosecutor’s arguments were based on the

evidence and Allen’s appearance at trial, and the prosecutor did not suggest that she had some

special knowledge, unknown to the jury, that Allen was truthful. Therefore, the prosecutor’s

remarks were not improper.

Furthermore, to the extent that the prosecutor’s remarks could be considered improper,

defendant is not entitled to a new trial. In its final instructions, the trial court instructed the jury

that the lawyers’ statements, arguments, and any commentary are not evidence, that the jurors are

the sole judges of witness credibility, and that the jury was to follow the court’s instructions. The

trial court’s instructions were sufficient to dispel any possible prejudice arising from the

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prosecutor’s remarks and to protect defendant’s substantial rights. See People v Long, 246 Mich

App 582, 588; 633 NW2d 843 (2001). Jurors are presumed to have followed their instructions,

People v Breidenbach, 489 Mich 1, 13; 798 NW2d 738 (2011), and defendant has not provided

any basis for concluding that the jurors failed to do so in this case.

For these reasons, the prosecutor’s remarks, which were responsive to the evidence and

defense theories presented at trial, were not improper. Therefore, counsel’s failure to object was

not objectionably unreasonable. Failure to advance a “futile objection does not constitute

ineffective assistance of counsel.” People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120

(2010). Further, because the trial court’s jury instructions were sufficient to dispel any possible

prejudice, there is no reasonable probability that counsel’s failure to object affected the outcome

of defendant’s trial. See Nix, 301 Mich App at 207. Therefore, defendant cannot establish a claim

of ineffective assistance of counsel.

F. ADVISING DEFENDANT TO REJECT A NO-CONTEST PLEA OFFER

In his last ineffective-assistance claim, defendant faults defense counsel for advising him

to reject a no-contest plea offer and proceed to trial. Defendant claims that defense counsel advised

him that the only evidence against him was from Allen, who could be impeached because he was

not a credible witness, was a drug addict, and had a fraud conviction. Defendant further claims

that counsel did not inform him that he could “get life if [he] went to trial,” but told him that he

“would go home.” The record does not support this claim.

“Defendants are entitled to the effective assistance of counsel when considering or

negotiating a plea agreement.” People v White, 331 Mich App 144, 148; 951 NW2d 106 (2020).

“Defense counsel’s obligation was to properly advise defendant regarding the nature of the charges

or the consequences of the guilty plea and the possible defenses to the charges to which the

defendant is pleading guilty, so defendant has the ability to make an intelligent and informed

choice from among his alternative courses of action.” Id. (quotation marks and citation omitted.)

As with any other claim of ineffective assistance, “[t]he defendant has the burden of establishing

the factual predicate of his ineffective assistance claim.” Douglas, 496 Mich at 592. To

demonstrate prejudice with respect to ineffective assistance of counsel in the plea-bargaining

process, the “ ‘defendant must show the outcome of the plea process would have been different

with competent advice.’ ” Id., quoting Lafler v Cooper, 566 US 156, 163-164; 132 S Ct 1376; 182

L Ed 2d 398 (2012).

Considering the record in this case, defendant is not entitled to a new trial on the basis of

defense counsel’s alleged advice to reject a no-contest plea offer. Preliminarily, contrary to what

defendant asserts, there is no record evidence that the prosecution ever negotiated or offered

defendant a no-contest plea. The prosecution’s plea offers were placed on the record at four

different hearings before trial and none of those offers mentioned a no-contest plea. Counsel could

not have been ineffective for advising defendant to reject a type of plea that was never offered.

Furthermore, the record does not support defendant’s claim that counsel never informed him that

he could be sentenced to life imprisonment if convicted at trial. The record is clear that defendant

was informed on numerous occasions, and expressed his understanding at the last hearing before

trial, that he could be sentenced to life with parole if found guilty at trial. In response to both

defense counsel’s and the trial court’s questions, defendant expressed that he understood the

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potential life sentence if he was found guilty. Defendant reiterated his choice to proceed to trial.

Thus, the record does not support defendant’s claims that he was offered a no-contest plea or that

he was unaware that he could be sentenced to life imprisonment if he was found guilty. See

Douglas, 496 Mich at 592 (defendant has the burden of establishing the factual predicate of his

ineffective-assistance-of-counsel claim).

Further, even accepting defendant’s claim about why defense counsel supposedly advised

him to reject the plea offer, defendant cannot show that counsel was ineffective. Defendant claims

that counsel informed him that he could impeach Allen. The record shows that defense counsel

cross-examined Allen at length at trial and attempted to impeach his credibility by vigorously

offering a multitude of reasons why Allen’s testimony should not be believed, and revisited the

credibility issues during closing argument. Indeed, had defense counsel managed to convince the

jury that Allen, who clearly had credibility issues that were explored at trial, was not a truthful

witness, defendant likely would have been acquitted. The fact that defense counsel’s strategy did

not work does not constitute ineffective assistance of counsel. People v Stewart, 219 Mich App

38, 42; 555 NW2d 715 (1996).

In sum, we agree with the trial court’s finding when denying defendant’s motion for a new

trial or evidentiary hearing on this matter, which was: “I think at this point, it’s in hindsight he’s

regretting not taking that plea offer, and it was clearly explained to him what [amount of prison

time] he was facing.” Defendant’s own unsupported arguments and the record support this finding.

In his affidavit filed with his motion for a new trial, defendant asserted: “I would have accepted

the plea to avoid doing life . . . . I would like the opportunity to take the plea bargain now that I

understand everything.” As plaintiff aptly notes: “Defendant’s regret—in hindsight—does not

prove that he would have accepted the deal when it was offered.” Indeed, the record clearly

demonstrates that defendant understood when he rejected the plea offer that he could be sentenced

to life imprisonment if he was found guilty at trial. Defendant has not demonstrated that defense

counsel was ineffective in this regard.

Affirmed.

/s/ Mark J. Cavanagh

/s/ Kathleen Jansen

/s/ Allie Greenleaf Maldonado

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