Op People of Michigan v. Anthony Jerome Deleon ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 23, 2022
Plaintiff-Appellant,
v No. 353296
Macomb Circuit Court
ANTHONY JEROME DELEON, LC No. 2005-003245-FC
Defendant-Appellee.
ON REMAND
Before: CAVANAGH, P.J., and O’BRIEN and SWARTZLE, JJ.
SWARTZLE, J. (concurring in part and dissenting in part).
In this matter on remand, I agree with my colleagues with respect to whether the court rules
affect the outcome of this case (they do not), though I disagree with my colleagues with respect to
the substantive claim on appeal, whether defendant received the effective assistance of counsel (he
did not). For these reasons, I can concur only in part.
First, I agree with my colleagues that neither MCR 6.508(D)(2) nor (3) precludes defendant
from raising an ineffective assistance of counsel claim in his motion for relief from judgment. I
do quibble with my colleagues’ rationale for applying an earlier version of MCR 6.508(D) rather
than the current one, Maj Op at __ n 4; see MCR 1.102 and Reitmeyer v Schultz Equip & Parts
Co, Inc, 237 Mich App 332, 337; 602 NW2d 596 (1999), but the outcome is the same regardless
of which version is consulted. With respect to (2), even assuming for the sake of argument that
the law-of-the-case doctrine might otherwise apply, see Maj Op at __ n 5, that doctrine “is not
inflexible” in criminal cases “and need not be applied if it will create an injustice,” People v
Phillips (After Second Remand), 227 Mich App 28, 33; 575 NW2d 784 (1997). And, in any event,
our current case law is too rigid with respect to the law-of-the-case doctrine and should be
reassessed by our Supreme Court, as I have pointed out in another context. See Estate of Nayyar
by Nayyar v Oakwood Healthcare, Inc, unpublished per curiam opinion of the Court of Appeals,
issued May 14, 2020 (Docket No. 343676), pp 11-12.
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Second, for the reasons explained by the majority, I agree that MCR 6.508(D)(3) does not
preclude defendant from pursuing his claim here, see People v Rogers, 335 Mich App 172, 192-
199; 966 NW2d 181 (2020) (explaining what “new evidence” means in the context of a request
for new trial), though I would not reach the “unless the defendant demonstrates” analysis because
it is not necessary to do so.
But third, I diverge from my colleagues on the question of whether defendant received the
effective assistance of counsel. In my opinion, the presumption of sound trial strategy is easily
overcome by the factual finding by the trial court that defense counsel’s testimony during the
Ginther hearing was inherently inconsistent on the key question of why defense counsel did not
call Dr. MacDonell. The trial court recalled that, during trial, defense counsel told the court that
Dr. MacDonell would not be called because of a family emergency. But during the Ginther
hearing, defense counsel testified that he had made the strategic decision not to call the expert
because he believed that the trial was going well for defendant. The trial court also credited
defendant’s testimony that defense counsel did not consult with defendant prior to excusing the
witness, in direct opposition to what counsel testified during the Ginther hearing. The trial court
heard the testimony, made credibility determinations based on that testimony, and concluded that
defense counsel’s decision “may not have been a strategic decision.” On this record and at this
remove from the trial and hearing, we should not disregard the trial court’s superior vantage point
on this issue. Alternatively, the matter should at least be remanded for further fact finding, as
suggested by Judge Tukel in his dissenting opinion in People v DeLeon, unpublished per curiam
opinion of the Court of Appeals, issued June 10, 2021 (Docket No. 353296) (TUKEL, J.,
dissenting), pp 3-5.
As for a reasonable probability that the result would have been different had the expert
testified, I believe that this is a closer question, though one that still favors defendant. Although
defendant did, indeed, offer a reasonable explanation for the lack of blood on the firearm, the
explanation would have no doubt been strengthened by a corroborating expert witness.
Accordingly, for these reasons, I respectfully concur in part and dissent in part.
/s/ Brock A. Swartzle
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