# People of Michigan v. Javon Robert Dabney

> Michigan Court of Appeals · March 21, 2024

URL: https://www.frixlaw.com/law-library/cases/9953461

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** March 21, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9953461. Public record. Not legal advice.