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People v. Guajardo

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 333012 (Mich. Ct. App. Jul. 18, 2017)

Opinion

No. 333012

07-18-2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ISAAC JAMES GUAJARDO, Defendant-Appellant.


UNPUBLISHED Eaton Circuit Court
LC No. 16-020012-FH Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM.

Defendant appeals by right his conviction, following a jury trial, of one count of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(c) (sexual penetration of a physically helpless victim). The trial court sentenced defendant to 25 to 180 months' imprisonment. After defendant filed his claim of appeal, we granted defendant's motion to remand for an evidentiary hearing and to allow defendant to move the court trial to reinstate a plea offer. After a Ginther hearing, the trial court denied defendant's motion to reinstate the plea offer. We affirm.

People v Guajardo, unpublished order of the Court of Appeals, issued January 20, 2017 (Docket No. 333012).

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises out of the sexual assault of the victim while she was unconscious or sleeping after becoming intoxicated. At a status conference held before trial, the parties informed the trial court that a plea offer had been made to defendant under which he would plead guilty to one count of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e. A Cobbs conference with a different judge had been held a few weeks earlier and, according to the prosecution, that judge had agreed to sentence defendant within the recommended minimum sentencing guideline range (of zero to 11 months' imprisonment) for a CSC-IV conviction. The prosecution also stated at the status conference that defendant's minimum sentencing range under the guidelines for a CSC-III conviction was "15 to 25 months at MDOC." Defendant was present at the status conference and confirmed to the trial court that he was rejecting the plea offer.

People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).

Defendant went to trial and was convicted as described. In support of his motion to remand made to this Court, he argued that defense counsel "wrongly counseled [him] to reject the offer, incorrectly informed him of the amount of time he was looking at if convicted, and failed to inform him of the sentencing benefits of the plea offer." In an affidavit, defendant stated that defense counsel had told him that he "had a good defense" and "that if I had known the true strength of my case, the amount of time I was facing, or the [sex offender] registration consequences, I would have taken the plea offer."

At the Ginther hearing, defense counsel testified that he discussed the "possible penalties" with defendant several times, including the corresponding sex offender registration requirements. Defense counsel explained that defendant had maintained his innocence throughout the proceedings and "was adamant that he did not want to be placed on the Michigan Sex Offender Registry" for any amount of time. With regard to the plea offer, defense counsel at first could not recall whether he had informed defendant that pleading guilty to CSC-IV could result in probation, jail time, or prison time. But on cross-examination he answered affirmatively when asked, "And did you inform [defendant] he was looking at a jail sentence with the plea deal?" Counsel also answered affirmatively when asked if he told defendant that he "had a good case" and that "it was a winnable trial," but denied advising him to reject the offer because he thought it was a "winnable" case.

Defendant testified that he did not learn until "around sentencing" that he could have received probation or a jail sentence under the plea offer that he had rejected. He testified that his counsel had told him "that it was better to go trial." Defendant explained that he would have accepted the plea offer even though he was maintaining his innocence because "I didn't want to go to prison." Defendant also testified that the victim had consented to the sexual encounter, but when asked if he believed that the victim was physically helpless, defendant answered "[i]f that means that she was . . . highly intoxicated, yes." And when asked, "Do you believe you're guilty of a crime," defendant answered, "To a point, yes."

The trial court expressed that it was "somewhat concerned" that defendant "doesn't understand the difference between looking at jail time and looking at prison time," but found that it had been "explained [to defendant] what the plea offer was and what the difference was" at the status conference. The trial court also found that defense counsel had advised defendant regarding the "possible penalties of both the reduced charge and the charge he was facing." The trial court thus concluded that defendant had failed to demonstrate that defense counsel's representation fell below an objective standard of reasonableness, and denied defendant's request to reinstate the plea offer. This appeal followed. On appeal, defendant argues that his counsel was ineffective when he advised defendant regarding the consequences of rejecting the plea offer.

II. STANDARD OF REVIEW

"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law. A judge first must find the facts, and then must decide whether those facts constitute a violation of the defendant's constitutional right to effective assistance of counsel." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). "A trial court's findings of fact . . . are reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo." People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Johnson, 466 Mich 491, 497-498; 647 NW2d 480 (2002).

III. ANALYSIS

"Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process." Lafler v Cooper, 566 US 156, 162; 132 S Ct 1376; 182 L Ed 2d 398 (2012). "To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that his attorney's performance was objectively unreasonable in light of prevailing professional norms; and (2) that he was prejudiced by the deficient performance." People v Walker, 497 Mich 894, 895; 855 NW2d 744 (2014). "There is a presumption that counsel was effective, and a defendant must overcome the strong presumption that counsel's challenged actions were sound trial strategy." People v Cooper, 309 Mich App 74, 80; 867 NW2d 452 (2015). When advising a defendant of a plea offer, "[d]efense counsel must explain to the defendant the range and consequences of available choices in sufficient detail to enable the defendant to make an intelligent and informed choice." People v Jackson, 203 Mich App 607, 614; 513 NW2d 206 (1994). "Defense counsel's advice does not need to be correct, but it must fall within the range of competence demanded of attorneys in criminal cases." People v Davidovich, 238 Mich App 422, 425; 606 NW2d 387 (1999).

Defendant first argues that defense counsel's performance was not objectively reasonable because counsel did not understand the elements of CSC-III or the prosecution's theory of the case. In support of his position, defendant points to defense counsel mistakenly recalling at the Ginther hearing that defendant was charged with engaging in sexual penetration by means of force or coercion, in violation of MCL 750.520d(1)(b). But, as defendant acknowledges, defense counsel corrected himself and recalled that the prosecution's theory was that defendant sexually penetrated the victim when he knew or had reason to know that she was physically helpless. And the trial transcripts show that at the time of trial defense counsel was fully aware of what the prosecution was required to prove to convict defendant of CSC-III under the prosecution's chosen theory, notwithstanding any initial misremembering or misspeaking at the Ginther hearing.

Defendant also argues that defense counsel "overestimated the strength of a consent defense" in advising defendant that he had a "winnable" case, because the defense of consent is inapplicable when the charge is that the victim was physically helpless. Under its chosen theory, the prosecution was required to prove that the victim was physically helpless, i.e. "unconscious, asleep, or for any other reason is physically unable to communicate an unwillingness to an act." See MCL 750.520a(m). The defense of consent has been described as comprehending a "willing, noncoerced act of sexual intimacy or intercourse between persons of sufficient age who are neither 'mentally defective', . . . 'mentally incapacitated', . . . nor 'physically helpless.' " See People v Bayer, 279 Mich App 49, 67; 756 NW2d 242, vacated in part on other grounds 482 Mich 1000 (2008), quoting People v Khan, 80 Mich App 605, 619 n 5; 264 NW2d 360 (1978) (ellipses in Bayer). Therefore, defendant is correct that the defense of consent is technically and by definition inapplicable where the prosecution's theory is that the victim was physically helpless.

However, it is equally true that if the jury believed that the victim had consented, then it again, by definition, would also have necessarily determined that the victim was not physically helpless. The contention of the defense was that the victim was conscious and consented to sex with defendant (and thus was not physically helpless). The evidence presented by defense counsel, including the victim's testimony, was therefore not only relevant to the issue of consent but was also relevant to whether the victim was physically helpless. And defense counsel successfully argued that a consent instruction should be given to the jury. Defense counsel's statements in support of his argument indicate that he understood the prosecution's theory of the case and believed that offering evidence of consent would necessarily negate the theory that the victim was physically helpless by showing that she was "awake and that she had a memory of what was going on." The trial court instructed the jury that, "[i]n deciding whether or not [the victim] consented to the act . . . [i]t may help you to think about the following questions as you proceed: . . . Was [the victim] physically helpless and unable to consent?" The jury was instructed that if the evidence raised a reasonable doubt as to the victim's consent, defendant must be found not guilty. We have reviewed the record and find that defense counsel's advice regarding the strength of the defense, despite its ultimate failure, "fall[s] within the range of competence demanded of attorneys in criminal cases." Davidovich, 238 Mich App at 425.

Defendant also argues that defense counsel gave incorrect advice regarding the potential penalties of the plea offer and of a conviction at trial. Defendant acknowledges that defense counsel testified to having discussed the potential penalties with him "several times." However, defendant argues that defense counsel's request for a 12-month jail sentence and probation for the CSC-III conviction at sentencing shows that defense counsel was not aware of the potential penalties associated with going to trial. Defendant is correct that CSC-III is expressly excluded from the probation act, see MCL 771.1(1), and that, absent a departure, jail time was not a sentencing option in this case. But there are no indications that defendant was led to believe, at the time he rejected the plea offer, that a CSC-III conviction after trial could result in probation or jail time rather than prison. Indeed, defendant testified that he believed a conviction would result in a prison sentence.

Defendant's minimum recommended sentencing range was 15 to 25 months. Jail confinement is available as an intermediate sanction if the lower limit of the recommended minimum sentence is 12 months or less. See MCL 769.31(b)(viii); MCL 769.34(4)(a), (c).

Defendant argues that he was not informed by his counsel that probation and jail time were available sentences if he were to plead guilty to CSC-IV under the plea offer. Defense counsel and defendant gave conflicting testimony regarding whether the possibility of a jail sentence under the plea offer was discussed. The trial court did not expressly resolve that conflict, and instead correctly indicated that defendant was informed of that possibility at the status conference. So even assuming that defense counsel did not expressly inform defendant of that possibility, defendant had been adequately apprised of it by the time he rejected the plea offer.

We note that the record shows that defendant maintained his innocence and was very opposed to the requirement of registration as a sex offender, which would have been required if he had pled guilty to CSC-IV. Defendant also testified that he believed the victim was conscious and had consented, and that he was opposed to spending any time incarcerated, whether in jail or in prison. Therefore, even if his counsel failed to appropriately apprise him of the sentencing consequences of both a rejection and an acceptance of the plea offer, defendant has not shown that "but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances) . . . ." People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014), quoting Lafler, 132 S Ct at 1385. --------

In sum, the advice provided to defendant was sufficiently detailed to enable him to make an intelligent and informed decision regarding the plea offer, Jackson, 203 Mich App at 614, and the trial court therefore did not err by rejecting his claim that his trial counsel was ineffective and by rejecting defendant's motion to reinstate the plea offer.

Affirmed.

/s/ Jane E. Markey

/s/ Amy Ronayne Krause

/s/ Mark T. Boonstra


Summaries of

People v. Guajardo

STATE OF MICHIGAN COURT OF APPEALS
Jul 18, 2017
No. 333012 (Mich. Ct. App. Jul. 18, 2017)
Case details for

People v. Guajardo

Case Details

Full title:PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ISAAC JAMES…

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Jul 18, 2017

Citations

No. 333012 (Mich. Ct. App. Jul. 18, 2017)