Opinion
358236
06-15-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. PARIS AMOUR BRADFORD, Defendant-Appellant.
UNPUBLISHED
Cass Circuit Court LC No. 20-010170-FH
Before: CAMERON, P.J., and MURRAY and GADOLA, JJ.
PER CURIAM
A jury convicted defendant of carrying a concealed weapon, MCL 750.227; felon in possession of a firearm (felon-in-possession), MCL 750.224f; felon in possession of ammunition, MCL 750.224f(6); and three counts of felony possession of a firearm (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 3 to 20 years each for carrying a concealed weapon, felon-inpossession, and felon in possession of ammunition. The trial court sentenced defendant to concurrent prison terms of two years for each count of felony-firearm, to be served consecutive to and before defendant's other sentences. Because defendant was on parole when he committed the subject offenses, defendant's new sentences were consecutive to his parole sentence. In this appeal of right, defendant asserts that he received ineffective assistance of counsel, that the lead investigator's trial testimony violated his due-process right to a fair trial, that he should have received 356 days of jail credit, and that the statute authorizing the trial court to impose court costs is unconstitutional. Finding no error requiring reversal, we affirm defendant's convictions and sentence.
The jury acquitted defendant of one count of receiving and concealing a stolen firearm, MCL 750.535b.
I. RELEVANT FACTS
On July 19, 2020, law enforcement officers from various agencies were dispatched to Barnswallow Apartments in Cassopolis in response to the report of a fight involving firearms. As Cassopolis Police Officer Donald Obermesik approached the parking lot, he saw the two vehicles described by dispatch heading toward one of the parking lot exits. He blocked the exit with his patrol car, activated his lights, got out of his vehicle, and approached the first vehicle, a light pickup truck driven by defendant. Ontwa Township/Edwardsburg Police Department Officer Tanner Sinclair parked his patrol car in front of defendant's truck, asked defendant to step out of his truck, and performed a quick pat down of defendant to make sure that he was not carrying a weapon. Officer Sinclair asked defendant for identification, and defendant told the officer that his identification should be in his wallet in the driver's door of the truck and gave the officer permission to get the wallet. When Officer Sinclair opened the door of the truck to get defendant's wallet, the officer saw a black, short-nosed revolver on the seat where defendant had been sitting. Officer Sinclair asked defendant if the gun was his, and defendant replied, "Oh, sh*t, yeah." Moments later, defendant asserted that the gun was not his and that someone else might have thrown it into his truck. Cass County Sheriff's Deputy Joseph Sheteron ran the gun's serial number through the Law Enforcement Information Network, and the weapon came back as reported stolen.
Defendant was arrested, charged, convicted, and sentenced as indicated. After filing a timely claim of appeal in this Court, defendant moved in the trial court for a new trial on the basis of the same issues that he raises on appeal. The trial court denied defendant's motion and this appeal proceeded.
II. PRIOR FELONY CONVICTION
Defendant first argues that defense counsel rendered constitutionally ineffective assistance by failing to stipulate to defendant's prior felony conviction.
Whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and law. People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). The trial court's factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo. Id. The trial court did not hold an evidentiary hearing, and this Court denied defendant's motion for a remand. Therefore, this Court's review is limited to mistakes apparent on the record. See People v Jordan, 275 Mich.App. 659, 667; 739 N.W.2d 706 (2007).
Effective assistance of counsel is presumed, and defendant bears a heavy burden to prove otherwise. See People v Rockey, 237 Mich.App. 74, 76; 601 N.W.2d 887 (1999). To establish ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Smith v Spisak, 558 U.S. 139, 149; 130 S.Ct. 676; 175 L.Ed.2d 595 (2010); People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012). Defendant must overcome the strong presumption that counsel's actions constituted sound trial strategy under the circumstances. See People v Toma, 462 Mich. 281, 302; 613 N.W.2d 694 (2000). The presumption of competent representation requires courts to give defense counsel the benefit of the doubt and affirmatively consider the range of possible reasons for the act or omission. See People v Gioglio (On Remand), 296 Mich.App. 12, 22-23; 815 N.W.2d 589 (2012).
Defendant was charged with felon-in-possession, an essential element of which is a prior felony conviction. See People v Bass, 317 Mich.App. 241, 267; 893 N.W.2d 140 (2016). As a safeguard against unfair prejudice, the prosecutor and defense counsel may introduce by stipulation the fact of a defendant's prior felony conviction. See People v Green, 228 Mich.App. 684, 691-692; 580 N.W.2d 444 (1998). Here, defense counsel did not stipulate to defendant's prior felony conviction, nor is there any evidence that counsel offered to stipulate. Instead, defense counsel allowed the prosecution to introduce the prior conviction through a record of defendant's conviction of assault with attempted sexual penetration.
Defense counsel's decision not to stipulate to defendant's prior felony conviction can be considered sound trial strategy. As the trial court recognized, counsel's decision prevented the jury from speculating whether the prior felony involved gun charges, and allowed the jury to know that the current weapons charges were not the continuation of a prior pattern of criminal activity. Counsel's decision also communicated that defendant was forthcoming and credible, which contributed to the defense theory that the police conducted an insufficient investigation on the basis of assumptions that defendant was being untruthful when he told them that someone else put the gun in his truck. Showing that the current charges were not part of a pattern of criminal charges involving weapons and that defendant was being forthcoming arguably fall within the range of possible reasons for allowing the jury to hear the nature of defendant's prior felony conviction. See Gioglio, 296 Mich.App. at 22-23. This Court will not substitute its judgment for that of counsel regarding trial strategy. People v Payne, 285 Mich.App. 181, 190; 774 N.W.2d 714 (2009).
Because defendant has not overcome the presumption that it was sound trial strategy to enter defendant's prior felony conviction into evidence through the record of his conviction rather than through stipulation, defendant has not met his burden to establish that defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. See Trakhtenberg, 493 Mich. at 51. Having failed to establish that defense counsel performed deficiently, defendant's ineffective assistance of counsel argument must fail. See id.
III. CREDIBILITY TESTIMONY
Defendant next contends that his due-process right to a fair trial was violated when Deputy Sheteron testified during trial that people lie during criminal investigations. Alternatively, defendant contends that defense counsel was ineffective for failing to object to the deputy's testimony.
The due-process argument was not preserved with a timely objection. Therefore, this issue is unpreserved, see People v Pipes, 475 Mich. 267, 277; 715 N.W.2d 290 (2006), and our review is for plain error affecting defendant's substantial rights, People v Carines, 460 Mich. 750, 764; 597 N.W.2d 130 (1999). To prevail under plain error review, defendants must establish that error occurred, that the error was obvious, and that it affected their substantial rights. Id. at 763. An error affected substantial rights if it "affected the outcome of the proceedings." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764 (quotation marks, citation, and alteration omitted).
The foundation for defendant's challenge arises from the following exchange at trial between the prosecutor and Deputy Sheteron:
Q. Deputy Sheteron, when you're-when you're conducting an investigation into possible criminal activity, do people ever lie to you?
A. Typically-most of the time, that's what I face in my career field.
Defendant argues that the deputy's testimony that" 'most people lie' is 'not rationally based on his [sic] own perceptions as required by MRE 701 .' " As the foregoing exchange shows, however, the deputy's response was based on and limited to his personal investigative experiences and did not directly pertain to defendant. The deputy's testimony was not based on overly scientific, technical, or specialized knowledge and experience, such that expert testimony on the subject matter was necessary. See MRE 702.
Under MRE 701, the deputy's testimony was limited to opinions and inferences that were "rationally based" on his perception and "helpful to a clear understanding of [his] testimony or the determination of a fact in issue."
Quoting Miller v Hensley, 244 Mich.App. 528, 531; 624 N.W.2d 582 (2001).
Defendant's argument on appeal that the "jury rendered a verdict in conformance with Deputy Sheteron's improper testimony" implies that the jury simply deferred to Deputy Sheteron's testimony regarding whether defendant's version of events should be believed. The record indicates otherwise. The trial court instructed the jurors extensively regarding their responsibility to decide the facts of the case, to determine which witnesses to believe, to determine the relative importance of each witness's testimony, and to assess police testimony in the same way that it would assess the testimony of any other witness. Jurors are presumed to follow the trial court's instructions, People v Abraham, 256 Mich.App. 265, 279; 662 N.W.2d 836 (2003), and defendant has not rebutted that presumption in this case.
For the foregoing reasons, we agree with the trial court that defendant has not established plain error. Even if the subject question and answer were not relevant and would have been stricken had defense counsel so requested, Deputy Sheteron's testimony was not outcomedeterminative and, therefore, did not affect defendant's substantial rights. See Carines, 460 Mich. at 764.
Defendant's argument that defense counsel rendered ineffective assistance by not objecting to Deputy Sheteron's testimony also fails because defendant has not overcome the presumption that defense counsel's decision was sound trial strategy. See People v Unger, 278 Mich.App. 210, 242, 253; 749 N.W.2d 272 (2008) (indicating that defense counsel can reasonably decline to object to evidence as a matter of trial strategy). The defense theory was that law enforcement officials made assumptions that caused them to conduct an insufficient investigation. That defendant was lying was one of those assumptions. In support of this theory, defense counsel elicited an affirmative response from Officer Sinclair when counsel asked on cross-examination whether the officer "had already made an assumption that [defendant] was lying about [someone having thrown the gun in his truck]." In addition, defense counsel argued in closing that the case was "about assumptions" that stopped the investigation before it began. For example, because defendant appeared to have a gun and to have been sitting on it, officers assumed that the gun was his and the investigation stopped, without sending the gun and ammunition for a fingerprint analysis and without giving any credence to defendant's insistence that someone else put the gun in his truck. Deputy Sheteron's testimony arguably served the defense's theory by suggesting that law enforcement approached the investigation with skepticism regarding whether people involved in criminal investigations were telling the truth. "If this Court can conceive of a legitimate strategic reason for trial counsel's act or omission, this Court cannot conclude that the act or omission fell below an objective standard of reasonableness." People v Haynes, 338 Mich.App. 392, 429-430; 980 N.W.2d 66 (2021). Accordingly, we conclude that defendant has not overcome the strong presumption that defense counsel's actions constituted sound trial strategy under the circumstances. See Toma, 462 Mich. at 302.
IV. JAIL CREDIT
Defendant also argues that he was entitled to jail credit. He was not. Generally, "[w]hether a defendant is entitled to credit for time served in jail before sentencing is a question of law that [this Court] review[s] de novo." People v Armisted, 295 Mich.App. 32, 49; 811 N.W.2d 47 (2011).
MCL 769.11b provides as follows:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.
The Supreme Court held in People v Idziak, 484 Mich. 549, 552; 773 N.W.2d 616 (2009), that under MCL 791.238(2), a parolee incarcerated for committing a new crime while on parole and who had time left on his or her earlier sentence "resumes serving his earlier sentence on the date he is arrested for the new criminal offense." Because "the parolee is not being held in jail 'because of being denied or unable to furnish bond,' the jail credit statute does not apply." Id., quoting MCL 769.11b. The Court also held that "the denial of credit against a new minimum sentence does not violate . . . the equal protection clauses of the United States or Michigan constitutions." Idziak, 484 Mich. at 552. Defendant's arguments on appeal are essentially the same as those considered and rejected by the Idziak Court. Therefore, the trial court correctly denied the requested jail credit.
Defendant also asserts that Idziak should not apply because government-imposed mandates during the COVID-19 pandemic extended the time that he spent in jail awaiting trial and sentencing. However, defendant cites no cases supporting the proposition that this Court should disregard controlling law to award defendant credit for time served that is flatly prohibited by statutes and caselaw. The Idziak Court acknowledged that disparities or arbitrariness would result from the Court's interpretation of MCL 769.11b when factors that a given defendant cannot control came into play, such as docket congestion or a judge's illness. Idziak, 484 Mich. at 572-574. Similarly, delays occasioned by the COVID-19 pandemic cannot justify a departure from the mandate of MCL 769.11b. Therefore, defendant has failed to demonstrate any entitlement to an award of jail credit against his current prison terms.
With respect to defendant's arguments that the trial court erred by not granting him jail credit for the time he served in jail before the Department of Corrections filed a detainer, it is true that in People v Allen, 507 Mich. 597, 600; 968 N.W.2d 532 (2021), the Court held that parolees are entitled to jail credit under MCL 769.11b from the time of their arrest and incarceration for a new crime committed while on parole until the Department issues a parole detainer. However, when an arrest is made under MCL 791.238, which provides a "warrant-based process for arresting and detaining," the warrant serves as a detainer. Id. at 610. Defendant has given this Court no basis upon which to conclude that he is entitled to any jail credit under Allen because he has provided no evidence of the date that the Department issued a parole detainer.
V. COURT COSTS
Lastly, defendant contends that the trial court erred by imposing court costs under MCL 769.1k(b)(iii). Defendant argues that the statute violates the separation of powers clause of the state Constitution by assigning tasks to the judicial branch that undermines its credibility and create an objective risk of actual bias. This Court reviews "de novo constitutional issues and matters involving statutory interpretation." People v Johnson, 336 Mich.App. 688, 692; 971 N.W.2d 692 (2021).
MCL 769.1k(1)(b)(iii) "permits a trial court to impose court costs on a convicted defendant that are reasonably related to the actual costs incurred in processing a criminal case." In Johnson, 336 Mich.App. at 690, this Court concluded that the statute did not deprive criminal defendants of an impartial decision-maker because there was no evidence of a close nexus between the courts and the costs that they imposed under the statute. The Court also concluded that the statute did not violate separation-of-powers principles because the defendant had not shown that the statute prevented the judicial branch" 'from accomplishing its constitutionally assigned functions.'" Id. at 704, quoting Nixon v Administrator of Gen Servs, 433 U.S. 425, 443; 97 S.Ct. 2777; 53 L.Ed.2d 867 (1977). Unless the Supreme Court modifies Johnson, this Court is bound to follow its holding, see MCR 7.215(C)(2), and it is a decision that we fully endorse.
Affirmed.
Thomas C. Cameron, Christopher M. Murray, Michael F. Gadola JJ.