Opinion
364535
05-30-2023
People of Michigan v. John Henry Williams
LC No. 06-009250-01-FC
Anica Letica Presiding Judge Kirsten Frank Kelly Thomas C. Cameron Judges
ORDER
The motion to waive fees is GRANTED for this case only.
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, we VACATE the Wayne Circuit Court's October 18, 2022 order and REMAND for further proceedings consistent with this order.
The trial court erred by holding that defendant was procedurally barred under MCR 6.508(D)(2) from arguing that his trial counsel had performed ineffectively by failing to object to "other acts" testimony that, less than two weeks before the victim's murder, defendant had broken into the victim's house and stolen marijuana. On direct review in People v Williams, unpublished per curiam opinion of the Court of Appeals, issued March 25, 2008 (Docket Nos. 275083 &275589), defendant argued that his counsel should have objected under MRE 404(b) to evidence that defendant was a "drug dealer." But for purposes of MRE 404(b), evidence that defendant was "a drug dealer"-i.e., that he routinely committed crimes, wrongs, or acts related to the sale of illegal narcotics-is conceptually distinguishable from evidence that he had broken into the victim's house to steal a large quantity of marijuana less than two weeks before the victim's murder-i.e., that he had committed specific crimes, such as larceny and breaking and entering, against the victim on a specific date. Because that issue was neither raised nor decided on direct review, MCR 6.508(D)(2) is inapplicable. See People v Springer, 498 Mich. 908 (2015).
The trial court further erred by failing to adjudicate defendant's request for a Ginther hearing while simultaneously rejecting several of his claims of ineffective assistance of counsel for lack of record support. It is axiomatic that a "defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel," see People v Hoag, 460 Mich. 1, 6; 594 N.W.2d 57 (1999), and of doing so by reference to "record evidence," see People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). Indeed, the entire purpose of a Ginther hearing is to adduce factual support for claims of ineffective assistance that are not supported by the existing record. See People v Randolph, 502 Mich. 1, 14-15; 917 N.W.2d 249 (2018). Of course, not every request for a Ginther hearing need be granted; rather, a court has discretion whether to grant such a hearing. See, e.g., People v Chapo, 283 Mich.App. 360, 369; 770 N.W.2d 68 (2009) (denying remand for a Ginther hearing because this Court was "not persuaded that defendant ha[d] demonstrated any issue for which further factual development would advance his claim"). Here, however, the trial court did not rule on defendant's request for a Ginther hearing at all. Such failure to exercise discretion when called on to do so constitutes an abuse of discretion. See People v Grant, 329 Mich.App. 626, 638; 944 N.W.2d 172 (2019).
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
On remand, the trial court should reconsider this matter on the merits in light of this order. Before considering the substantive merits of defendant's arguments, the trial court should first decide whether defendant is entitled to a Ginther hearing.
In light of the foregoing, defendant's motion to remand for a Ginther hearing is DENIED without prejudice to defendant obtaining such a hearing from the trial court on remand.
This order is to have immediate effect. MCR 7.215(F)(2). We do not retain jurisdiction.