Opinion
SC: 163945 COA: 352309
09-21-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Edward LEE, Sr., Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the November 18, 2021 judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the judgment of the Court of Appeals concluding that no prejudice resulted from trial counsel's deficient performance in failing to object when the defendant's son impermissibly opined on the defendant's credibility, and we REMAND this case to that court for reconsideration of that ineffective assistance of counsel claim. Although the Court of Appeals cited the correct standard for assessing prejudice under Strickland v Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it failed to apply that standard. The defendant was not required to show that, but for counsel's deficient performance, there was insufficient evidence to sustain his convictions. Rather, prejudice is established where a defendant shows that "but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v Trakhtenberg , 493 Mich. 38, 51, 826 N.W.2d 136 (2012) (emphasis added). On remand, the Court of Appeals shall resolve the defendant's claim of ineffective assistance of counsel under this standard. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.