Opinion
SC: 161605 COA: 342999
01-27-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald Lynn ALLEN, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the March 17, 2020 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE Part III.B.2 of the judgment of the Court of Appeals and we REMAND this case to that court for reconsideration of the defendant's ineffective assistance of counsel claim, based on trial counsel's failure to call witnesses, under the correct standard. The Court of Appeals erred in holding that "[b]ecause Allen was not deprived of a substantial defense, trial counsel's decision not to call Dr. Hicks and Dr. Defriez as witnesses at trial did not fall below an objective standard of reasonableness and counsel was not ineffective in this respect." People v. Allen , 331 Mich.App. 587, 605, 953 N.W.2d 460, 2020 WL 1291438 at *7 (2020). The defendant was not required to show, in order to obtain relief for ineffective assistance of counsel, that trial counsel's failure to call witnesses deprived him of a substantial defense. Rather, 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 have been different." People v. Trakhtenberg , 493 Mich. 38, 51, 826 N.W.2d 136 (2012) ; see also Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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.
We do not retain jurisdiction.