People of Michigan v. Anthony Maurice Wallace ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 25, 2015
Plaintiff-Appellee,
v No. 321455
Wayne Circuit Court
ANTHONY MAURICE WALLACE, LC No. 13-101724-FC
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of armed robbery, MCL 750.529,
carrying a concealed weapon, MCL 750.227, felon in possession of a firearm, MCL 750.224f,
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was sentenced, as a third habitual offender, MCL 769.11, to 15 to 30 years’
imprisonment for the armed robbery conviction, one to five years’ imprisonment for the carrying
a concealed weapon conviction, one to five years’ imprisonment for the felon in possession of a
firearm conviction, and two years’ imprisonment for the felony-firearm conviction. We affirm
defendant’s convictions, however remand the case to the trial court to correct the judgment of
sentence. Defendant’s felony-firearm sentence shall run consecutively to his armed robbery and
felon in possession of a firearm sentences and concurrently with his carrying a concealed weapon
sentence.
This case began in Detroit with the victim, who knew defendant through mutual friends,
attempting to do a favor for defendant. Unfortunately, for the victim, defendant did not want a
favor--the ride he asked for--and instead robbed the victim at gunpoint.
Defendant first argues that the trial court abused its discretion in denying defendant’s
request for the appointment of substitute counsel and that the trial court did not conduct an
adequate inquiry into defendant’s request. We disagree. “A trial court’s decision regarding
substitution of counsel will not be disturbed absent an abuse of discretion. A trial court abuses
its discretion when its decision falls outside the range of reasonable and principled outcomes.”
People v Strickland, 293 Mich. App. 393, 397; 810 NW2d 660 (2011) (quotation marks and
citations omitted).
This Court has explained:
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An indigent defendant is guaranteed the right to counsel; however, he is
not entitled to have the attorney of his choice appointed simply by requesting that
the attorney originally appointed be replaced. Appointment of a substitute
counsel is warranted only upon a showing of good cause and where substitution
will not unreasonably disrupt the judicial process. Good cause exists where a
legitimate difference of opinion develops between a defendant and his appointed
counsel with regard to a fundamental trial tactic. [Id. (quotation marks and
citations omitted).]
“A mere allegation that a defendant lacks confidence in his or her attorney, unsupported by a
substantial reason, does not amount to adequate cause. Likewise, a defendant’s general
unhappiness with counsel’s representation is insufficient.” Id. at 398 (citations omitted).
“Counsel’s decisions about defense strategy, including what evidence to present and what
arguments to make, are matters of trial strategy, and disagreements with regard to trial strategy
or professional judgment do not warrant appointment of substitute counsel.” Id. (citations
omitted).
“When a defendant asserts that the defendant’s assigned attorney is not adequate or
diligent, or is disinterested, the trial court should hear the defendant’s claim and, if there is a
factual dispute, take testimony and state its findings and conclusion on the record.” Id. at 397
(quotation marks and citation omitted). “It is a defendant’s responsibility to seek a hearing.”
People v Ceteways, 156 Mich. App. 108, 118; 401 NW2d 327 (1986). “A full adversary
proceeding . . . is not required.” Id. at 119. A trial court’s failure to explore a defendant’s claim
that his lawyer should be replaced does not always require that a conviction following such an
error be set aside. Id. at 118-119, citing People v Ginther, 390 Mich. 436, 441-442; 212 NW2d
922 (1973).
Defendant asserts that the trial court failed to adequately ascertain the basis and substance
of defendant’s complaint about defense counsel. According to defendant, the court conducted no
inquiry and did not give defendant an opportunity to establish good cause. We disagree. Before
the trial began, defendant submitted to the court a handwritten letter stating why he was
requesting substitution of counsel. Defendant then reiterated those views orally in court on
February 10, 2014. Defendant was afforded an opportunity to express his views without
interruption before the court denied the request. Moreover, defendant did not request a formal
hearing on the matter, and it was his responsibility to seek such a hearing. Ceteways, 156 Mich
App at 118. Defendant has not identified any factual dispute that required an evidentiary hearing
or the taking of testimony. Nor has defendant explained why further inquiry by the trial court
was needed; “defendant said what he had to say[,]” id. at 119, and there is no indication that he
wished to elaborate further. Defendant unambiguously expressed the points he wished to make,
and then the trial court denied his request. Defendant has not established any error in the trial
court’s failure to conduct further inquiry or to hold a formal hearing on the matter.
Moreover, the trial court’s declination to appoint substitute counsel fell within the range
of reasonable and principled outcomes. Defendant fails to identify any specific reason why good
cause existed for the appointment of substitute counsel. Defendant alludes to a breakdown of the
attorney-client relationship and the fact, which was later revealed at sentencing, that defendant
had filed a grievance against defense counsel. However, the record does not reflect a breakdown
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in the attorney-client relationship or any other facts to establish good cause. Defendant asserted
that defense counsel only met with him once and claimed that defense counsel said she was not
“too familiar” with defendant’s case at the time of the final pretrial conference. After reviewing
the record, we have found that defense counsel was more than adequately prepared. Defense
counsel’s opening statement, cross-examination of witnesses, and closing argument all revealed
a thorough understanding of the facts of the case and reflected the development of a defense
strategy. The defense strategy included: (1) suggesting ways in which the victim’s testimony
about how the crime occurred did not make sense and (2) emphasizing the absence of any
physical evidence such as fingerprints tying defendant to a firearm recovered from the vacant
house where defendant was arrested. That is, defense counsel throughout trial exhibited a ready
and deep familiarity with the case by using the evidence and the lack of evidence to advance her
trial strategy; the record thus belies any contention that she was unprepared. Defendant fails to
explain how the purported failure to hold more than one meeting with defendant prevented
defense counsel from being adequately prepared, or how additional meetings with defendant
would have allowed defense counsel to develop a different or better trial strategy. Furthermore,
defendant identifies no fundamental trial tactic on which he and defense counsel had a legitimate
difference of opinion. Nor has defendant otherwise explained how defense counsel exhibited
disinterest or a lack of diligence. The fact, later revealed at sentencing, that defendant had filed a
grievance against defense counsel does not by itself establish good cause. See Strickland, 293
Mich. App. at 397-398; People v Traylor, 245 Mich. App. 460, 463; 628 NW2d 120 (2001).
Furthermore, the appointment of a new attorney would have unreasonably disrupted the
judicial process. Trial was originally scheduled to begin on February 10, 2014, and the trial
court and the parties agreed to adjourn it for two days because the trial court was conducting a
trial in another case; defendant then asked for a new attorney. It is reasonable to conclude that
appointment of a new attorney at this point would have further delayed the trial because a newly
appointed competent attorney could not have become adequately prepared for trial in a mere two
days. Accordingly, the trial court did not abuse its discretion in denying defendant’s request for
the appointment of substitute counsel.
In addition, defendant argues in his Standard 4 brief that he was denied the effective
assistance of counsel. Again, we disagree. Because defendant failed to preserve this issue by
moving for a new trial or an evidentiary hearing, “our review is limited to mistakes apparent on
the record.” People v Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008). “A claim of
ineffective assistance of counsel is a mixed question of law and fact.” Id. This Court reviews
any findings of fact for clear error, but “the ultimate constitutional issue arising from an
ineffective assistance of counsel claim [is reviewed] de novo.” Id.
“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show
that (1) counsel’s performance was below an objective standard of reasonableness and (2) a
reasonable probability [exists] that the outcome of the proceeding would have been different but
for trial counsel’s errors.” People v Ackerman, 257 Mich. App. 434, 455; 669 NW2d 818 (2003).
“Defendant must overcome a strong presumption that counsel’s performance constituted sound
trial strategy.” Petri, 279 Mich. App. at 411. “This Court will not substitute its judgment for that
of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the
benefit of hindsight.” Id. The fact that a defense strategy ultimately fails does not establish
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ineffective assistance of counsel. People v Kevorkian, 248 Mich. App. 373, 414-415; 639 NW2d
291 (2001).
Defense counsel has a “duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” People v Trakhtenberg, 493 Mich.
38, 52; 826 NW2d 136 (2012) (quotation marks and citations omitted). Any choice to limit an
investigation “is reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. (quotation marks omitted). The failure to conduct
an adequate investigation results in ineffective assistance of counsel if it undermines confidence
in the outcome of the trial. People v Russell, 297 Mich. App. 707, 716; 825 NW2d 623 (2012). A
defendant claiming ineffective assistance has the burden of establishing the factual predicate for
the claim. People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001).
Defendant asserts that defense counsel was ineffective in various ways. First, defendant
contends that defense counsel visited him for the first time three weeks before trial and told
defendant that she was not too familiar with defendant’s case. This claim is unsupported by
anything in the record other than defendant’s self-serving assertions when he requested a new
attorney. As explained earlier, the record reflects that defense counsel was more than adequately
prepared. Defendant has not shown how additional meetings with counsel would have made
defense counsel better prepared. Defendant identifies no particular defense that defense counsel
should have undertaken but failed to do so.
Second, defendant asserts that defense counsel failed to investigate the case. The record
offers no support for this assertion. Defendant has therefore failed to establish the factual
predicate for this claim. Id.
Third, defendant contends that defense counsel failed to file pretrial motions to dismiss
on procedural grounds or to quash on insufficient evidence grounds. Defendant further claims
that defense counsel rejected defendant’s request for an evidentiary hearing. Defendant offers no
specificity to support these bare assertions. A party may not simply “announce a position or
assert an error and then leave it up to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for authority either to
sustain or reject his position.” Kevorkian, 248 Mich. App. at 389 (quotation marks and citation
omitted). Defendant fails to specify what procedural grounds merited a motion to dismiss or
why he thinks a motion to quash on the basis of insufficient evidence was warranted. Although
defendant argues that an evidentiary hearing “would have put the lack of evidence to support the
elements of the charges on the record,” defendant does not further explain this assertion.
Defense counsel’s decision concerning whether to file a motion comprises a matter of trial
strategy. Traylor, 245 Mich. App. at 463. Because defendant has failed to present a
comprehensible argument on this point, he has abandoned the issue and has not overcome the
presumption of sound trial strategy. Petri, 279 Mich. App. at 411.
Defendant next asserts that defense counsel failed to contest the evidence of the charges.
Again, defendant fails to develop this argument to permit meaningful appellate review.
Kevorkian, 248 Mich. App. at 389. The record refutes this contention in any event because, as
discussed, the trial transcript shows that defense counsel thoroughly cross-examined the
prosecution witnesses and challenged the prosecution’s theory of the case by arguing that the
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victim’s testimony did not make sense and that there was no nexus between defendant and the
firearm recovered from the vacant house.
Additionally, defendant contends that defense counsel failed to seek to impeach the
victim’s trial testimony with a prior inconsistent statement. But defendant fails to identify what
specific testimony he wished to impeach, what prior statement the victim made that was
inconsistent with his trial testimony, or how the testimony and the statement were inconsistent.
Defendant may not leave it to this Court to discover and rationalize the basis for his claims or to
unravel and elaborate for him his arguments. Id.
Furthermore, defendant argues that defense counsel was ineffective because she failed to
obtain a fingerprint analysis of the gun. Defendant again fails to present an adequately
developed argument on this point. Id. Defendant does not indicate why a fingerprint analysis
was required or what it would have shown. “Decisions regarding what evidence to present . . .
are presumed to be matters of trial strategy,” which this Court will not second-guess or assess
with the benefit of hindsight. People v Horn, 279 Mich. App. 31, 39; 755 NW2d 212 (2008).
Defense counsel emphasized during closing argument that the prosecution presented no evidence
that defendant’s fingerprints were on the gun and that there was no evidence connecting
defendant to the gun. Defense counsel may have reasonably concluded that obtaining a
fingerprint analysis was unnecessary given her ability to emphasize the prosecutor’s failure to
present such evidence, and given the risk that, had defendant’s prints been detected, a fingerprint
analysis would have seriously undermined the defense theory. Defendant has not overcome the
presumption of a sound trial strategy. Petri, 279 Mich. App. at 411. Thus, we disagree with
defendant’s argument in his Standard 4 brief that defense counsel was ineffective and violated
his due process.
Defendant also argues in his Standard 4 brief that the trial court lacked subject-matter
jurisdiction because there was no probable cause for issuing the arrest warrant and the complaint
was defective. We disagree. Defendant failed to preserve this issue by raising it below. People
v Cameron, 291 Mich. App. 599, 617; 806 NW2d 371 (2011). Nonetheless, to the extent
defendant is arguing that the trial court lacked subject-matter jurisdiction, he may raise that issue
for the first time on appeal because subject-matter jurisdiction may be raised at any time. People
v Richards, 205 Mich. App. 438, 444; 517 NW2d 823 (1994). Whether a court has subject-matter
jurisdiction presents a question of law that is reviewed de novo. People v Laws, 218 Mich. App.
447, 451; 554 NW2d 586 (1996). Unpreserved issues are reviewed for plain error affecting
substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130 (1999).
Subject-matter “jurisdiction refers to the power of a court to act and the authority a court
has to hear and determine a case.” Wayne Co Chief Executive v Governor, 230 Mich. App. 258,
269; 583 NW2d 512 (1998). That is, “[s]ubject-matter jurisdiction concerns a court’s abstract
power to try a case of the kind or character of the one pending and is not dependent on the
particular facts of the case.” People v Lown, 488 Mich. 242, 268; 794 NW2d 9 (2011) (quotation
marks and citations omitted; emphasis removed). In this case, defendant was charged with four
felonies: armed robbery, carrying a concealed weapon, felon in possession of a firearm, and
felony-firearm. “Michigan circuit courts are courts of general jurisdiction and unquestionably
have jurisdiction over felony cases.” Id. (citations omitted). Therefore, the circuit court had
jurisdiction over the felony charges in this case. Defendant’s argument challenging the adequacy
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of the complaint and the propriety of issuing the warrant concerns events that occurred in this
particular case; it does not address the circuit court’s abstract power to try a case of the kind or
character of the one pending. Therefore, defendant has failed to establish that the circuit court
lacked subject-matter jurisdiction in this case.
Moreover, defendant’s challenge to the adequacy of the complaint and the propriety of
issuing the warrant is devoid of merit. Defendant contends that the arrest warrant was
improperly issued because there is no affidavit of probable cause in the lower court file. Further,
defendant asserts that the complaint was inadequate because it provided no underlying facts and
presented no corroborating evidence.
MCL 764.1a provides, in relevant part:
(1) A magistrate shall issue a warrant upon presentation of a proper
complaint alleging the commission of an offense and a finding of reasonable
cause to believe that the individual accused in the complaint committed that
offense. The complaint shall be sworn to before a magistrate or clerk.
(2) The finding of reasonable cause by the magistrate may be based upon
1 or more of the following:
(a) Factual allegations of the complainant contained in the complaint.
(b) The complainant’s sworn testimony.
(c) The complainant’s affidavit.
(d) Any supplemental sworn testimony or affidavits of other individuals
presented by the complainant or required by the magistrate.
(3) The magistrate may require sworn testimony of the complainant or
other individuals. Supplemental affidavits may be sworn to before an individual
authorized by law to administer oaths. The factual allegations contained in the
complaint, testimony, or affidavits may be based upon personal knowledge,
information and belief, or both.
“A complaint is a written accusation that a named or described person has committed a specified
criminal offense. The complaint must include the substance of the accusation against the
accused and the name and statutory citation of the offense.” MCR 6.101(A). Further, “[t]he
complaint must be signed and sworn to before a judicial officer or court clerk.” MCR 6.101(B).
Under MCR 6.101(C), “[a] complaint may not be filed without a prosecutor’s written approval
endorsed on the complaint or attached to it, or unless security for costs is filed with the court.” A
court must issue an arrest warrant upon being presented with a proper complaint if the court finds
probable cause to believe that the defendant committed the offense. MCR 6.102(A). “A finding
of probable cause may be based on hearsay evidence and rely on factual allegations in the
complaint, affidavits from the complainant or others, the testimony of a sworn witness
adequately preserved to permit review, or any combination of these sources.” MCR 6.102(B).
See also People v Cain, 299 Mich. App. 27, 52; 829 NW2d 37 (2012), aff’d in part, vacated in
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part on other grounds by 495 Mich. 874 (2013) (holding that a magistrate’s finding of probable
cause to believe that the defendant committed the charged offenses and to support the issuance of
an arrest warrant was supported by allegations in the complaint).
In light of the above authorities, defendant’s contention that the absence of an affidavit of
probable cause in the lower court file precluded the issuance of an arrest warrant is unavailing.
The factual allegations in the complaint provided probable cause to believe that defendant
committed the charged offenses. Defendant is also incorrect in asserting that the complaint
failed to provide factual allegations to support the finding of probable cause. The complaint
indicates that the offenses occurred on November 4, 2013, in the area of Seven Mile and
Plainview in Detroit. Clive Coateston is identified as the complainant or victim, and Officer
Terry Cross-Nelson is identified as the complaining witness who signed the complaint on
information and belief. Officer Cross-Nelson’s signature was subscribed and sworn to before
Magistrate Millicent D. Sherman on November 8, 2013. The complaint also indicates that the
warrant was authorized on November 7, 2013, by assistant prosecuting attorney Heather Lewis.
The complaint alleged the underlying facts and the relevant statutory citation for each of
the charged offenses, which were alleged to have been committed on the date and location
previously noted. With respect to the armed robbery charge, the complaint alleged that
defendant “did in the course of committing a larceny of COLOGNE, assault or put in fear a
person present, CLIVE COATESTON, and in the course of that conduct possessed GUN, a
dangerous weapon, contrary to MCL 750.529.” For carrying a concealed weapon, the complaint
alleged that defendant “did carry a dangerous weapon, to wit: PISTOL, concealed on or about his
or her person and whether concealed or otherwise in a vehicle operated or occupied by said
defendant, to wit: VAN, contrary to MCL 750.227.” Regarding felon in possession of a firearm,
the complaint alleged that defendant “did possess a firearm when ineligible to do so because he
or she had been convicted of LARCENY FROM A PERSON, a felony punishable by
imprisonment for 4 or more years, and the requirements for regaining eligibility had not been
met, contrary to MCL 750.224f.” With respect to felony-firearm, the complaint alleged that
defendant “did carry or have in his/her possession a firearm, to-wit: PISTOL, at the time he/she
committed or attempted to commit a felony, to-wit: ARMED ROBBERY OR FELONIOUS
ASSAULT OR FELON IN POSSESSION, contrary to MCL 750.227b.” The complaint also
provided notice concerning defendant’s third habitual offender status.
Accordingly, the complaint satisfied the requirements of the statutory and court rule
provisions cited above. The sworn factual allegations in the complaint, made on the basis of the
complaining witness’s information and belief, provided the requisite probable cause to believe
that defendant committed the charged offenses and to support issuance of the arrest warrant. See
MCL 764.1a(1), (2), (3). Thus, defendant has failed to establish that there was any defect in the
complaint or that the arrest warrant was not supported by probable cause.
Lastly, defendant argues that the trial court erred in making defendant’s sentences for
felony-firearm and carrying a concealed weapon consecutive to each other. We agree. Because
defendant failed to preserve this issue below, our review is for plain error affecting substantial
rights. People v Carines, 460 Mich at763-764. To obtain relief under the plain error test, a
defendant must show that (1) an error occurred, (2) the error was clear or obvious, and (3) the
plain error affected substantial rights, i.e., it affected the outcome of the lower court proceedings.
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Id. at 763. Whether a statute authorizes consecutive sentencing presents a question of law that is
reviewed de novo. People v Lee, 233 Mich. App. 403, 405; 592 NW2d 779 (1999).
“A consecutive sentence may be imposed only if specifically authorized by statute.” Id.
The felony-firearm statute provides that the sentence for felony-firearm shall be consecutive to
the sentence for the predicate offense. At the time of the offenses and at the time of defendant’s
sentencing, MCL 750.227b(2)1 stated:
A term of imprisonment prescribed by this section is in addition to the
sentence imposed for the conviction of the felony or the attempt to commit the
felony, and shall be served consecutively with and preceding any term of
imprisonment imposed for the conviction of the felony or attempt to commit the
felony.
The felony-firearm statute does not “[permit] consecutive sentencing with convictions other than
the predicate offense.” People v Clark, 463 Mich. 459, 464; 619 NW2d 538 (2000). Carrying a
concealed weapon may not serve as the predicate offense for felony firearm. See MCL
750.227b(1).
In People v McCrady, 213 Mich. App. 474, 486; 540 NW2d 718 (1995), this Court held
that the defendant’s sentence for a carrying a concealed weapon conviction was improperly made
consecutive to his sentence for a felony-firearm conviction “[b]ecause there is no statute
mandating that a sentence for a [carrying a concealed weapon] conviction run consecutively to a
sentence for a felony-firearm conviction[.]” See also People v Cortez, 206 Mich. App. 204, 207;
520 NW2d 693 (1994) (holding that the trial court erred in making the defendant’s felony-
firearm sentence consecutive to his carrying a concealed weapon conviction because carrying a
concealed weapon may not serve as the predicate offense for felony-firearm); People v Bonham,
182 Mich. App. 130, 137; 451 NW2d 530 (1989) (“Since [carrying a concealed weapon]
conviction may not be the underlying felony for a felony-firearm conviction, MCL 750.227b(1),
there is no statutory authority for imposing a [carrying a concealed weapon] sentence to be
served consecutive to a felony-firearm sentence. Therefore, defendant’s felony-firearm sentence
should run concurrently with the [carrying a concealed weapon] sentence.”) (citations omitted).
In this case, the trial court made defendant’s sentences for armed robbery, carrying a
concealed weapon, and felon in possession of a firearm concurrent with one another and
consecutive to the felony-firearm sentence. The predicate offenses for defendant’s felony-
firearm conviction were armed robbery and felon in possession of a firearm. The felony-firearm
statute authorizes consecutive sentencing for those two predicate offenses. MCL 750.227b(2).
Therefore, it was proper to make the sentences for those two predicate offenses consecutive to
the felony-firearm sentence. However, the trial court lacked statutory authority, the prosecutor
concedes this as error, to make the felony-firearm sentence consecutive to the carrying a
concealed weapon sentence because carrying a concealed weapon may not serve as the predicate
1
Effective July 1, 2015, this provision was moved to MCL 750.227b(3), but there are no
substantive changes to the provision. See 2015 PA 26.
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offense for felony-firearm as there is no statute authorizing consecutive sentencing for those two
offenses. McCrady, 213 Mich. App. at 486; Cortez, 206 Mich. App. at 207; Bonham, 182 Mich
App at 137. Thus, the trial court plainly erred in imposing consecutive sentences for carrying a
concealed weapon and felony-firearm. This error affected the outcome because defendant
received consecutive instead of concurrent sentences for those two offenses. Accordingly, we
remand the case for amendment of the judgment of sentence to reflect that defendant’s felony-
firearm sentence shall run consecutively to his armed robbery and felon in possession of a
firearm sentences, but concurrently with his carrying a concealed weapon sentence.
Defendant’s convictions are affirmed, but the matter is remanded to correct the judgment
of sentence to reflect the fact that defendant’s felony-firearm conviction shall run consecutively
to his armed robbery and felon in possession of a firearm sentences and concurrently with his
carrying a concealed weapon sentence. We do not retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
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