In Re Rec III ( 2023 )

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
IN RE REC, III UNPUBLISHED
May 25, 2023
No. 362011
St. Clair Circuit Court
LC No. 20-000773-PP
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
Defendant appeals as of right from his judgment of contempt, which resulted from three
violations of a personal protection order (PPO). Defendant was sentenced to 93 days in jail for
each violation, to run concurrently. For the reasons set forth in this opinion, we affirm defendant’s
convictions and sentences.
I. BACKGROUND
This appeal arises from a PPO issued in response to LH’s allegations about defendant’s
acts of domestic violence directed toward her. The trial court issued an ex parte PPO on June 8,
2020, prohibiting, in part, defendant from communicating with LH and going to her residence. LH
alleged defendant violated the PPO three times. Defendant did not appear for his first PPO
violation hearing, and was later arrested and brought to a subsequent hearing 20 months later.
Defendant’s attorney asserted that he was not prepared to proceed at that PPO violation hearing
because he had not talked with defendant in over a year, and had just learned about the violations
one week prior. The trial court granted a three-day adjournment.
At the subsequent PPO violation hearing, LH testified defendant violated the PPO by
texting and calling her on August 10, 2020, and by visiting her residence on August 11, 2020, and
August 12, 2020. Defendant admitted he did each of those things, but defense counsel argued
defendant did not receive proper service for the PPO, and therefore, the PPO was not valid. The
trial court ruled the 14-day window to challenge the service of the PPO had already expired, and
directed defense counsel to focus his arguments on whether defendant violated the PPO.
Subsequently, the trial court held defendant had violated the PPO three times, and sentenced him
to 93 days in jail for each violation, all to run concurrently. This appeal ensued.
II. ANALYSIS
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In his appeal,1defendant makes two assertions. First, defendant argues that despite
precedent to the contrary, this Court should recognize the right to a jury trial for criminal contempt
proceedings involving PPO violations. Second, he argues that he should be afforded a new hearing
because his counsel was ineffective. We conclude that neither claim is persuasive and accordingly,
we affirm.
We begin with an examination of defendant’s first argument that he was entitled to a jury
trial for the criminal contempt proceedings involving his PPO violations. We note that defendant
did not raise this issue in the trial court. Accordingly, this argument is an unpreserved
constitutional claim which we review for plain error affecting a defendant’s substantial
rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). Under the plain-error rule,
defendant bears the burden to prove: 1) an error occurred, 2) the error was plain, i.e., clear or
obvious, and 3) the plain error affected his substantial rights, meaning it affected the outcome of
the proceedings. Id. at 763. If defendant satisfies those three requirements, reversal is warranted
only when the plain error “resulted in the conviction of an actually innocent defendant” or
“seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id. at 763-
764 (quotation marks, citation, and alteration omitted).
MCR 3.708(H)(1) states “[t]here is no right to a jury trial,” for contempt proceedings for
PPO violations, a fact defendant readily admits. This Court made clear in Brandt v Brandt, 250
Mich App 68, 72; 645 NW2d 327 (2002) that: “MCR 3.708(H)(1) specifically explains that a
respondent in a contempt proceeding is not entitled to a jury trial.” Defendant asserts that despite
this express prohibition of jury trials in contempt proceedings, this Court should recognize the
right to a jury trial for criminal contempt proceedings involving PPO violations under MCR
7.215(J)(2)-(3). However, MCR 7.215(J) concerns conflicts in decisions issued from this Court.
More specifically, defendant argues that this Court should hold the right to a jury trial
attaches to criminal contempt proceedings because the punishment for criminal contempt is
“virtually identical” to the punishment for certain misdemeanors under the Penal Code, for which
defendants are guaranteed the right to a jury trial. We agree with defendant that the Michigan
Constitution guarantees the right to a jury trial for both petty and serious violations of criminal
statutes, People v Antkoviak, 242 Mich App 424, 481-482; 619 NW2d 18 (2000). However, this
same guarantee does not extend to criminal contempt proceedings as criminal contempt
proceedings are exempted from the right to a jury trial that attaches to proceedings concerning
criminal statute violations. See Const 1963, art I, § 20 (guaranteeing the right to a jury trial for
proceedings concerning criminal statute violations); and as previously stated, MCR 3.708(H)(1);
Brandt, 250 Mich App at 72. Clearly, relative to a defendant’s right to a trial by jury, criminal
contempt actions involving PPO violations are treated differently than violations of criminal
statutes in Michigan. As such, defendant’s argument that he was entitled to a jury trial because
defendants accused of misdemeanors are entitled to jury trials is unpersuasive.
Defendant also argues that the Sixth Amendment to the United States Constitution should
guarantee him a jury trial for contempt proceedings. However, defendant admits in his brief on
appeal that the Sixth Amendment guarantees a jury trial for criminal contempt proceedings only if
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The prosecution did not file any responsive pleadings.
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the actual punishment imposed is greater than six months. Bloom v Illinois, 391 US 194, 197-199;
88 S Ct 1477; 20 L Ed 2d 522 (1968); see also US Const, Am VI. Here, defendant was only
sentenced to 93 days in jail. Accordingly, defendant was not entitled to a jury trial under the Sixth
Amendment. Id.Defendant’s second argument is that he was denied the effective assistance of counsel
because defense counsel was unprepared for the hearing and demonstrated a deficiency of legal
knowledge. “A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law.” People v Isrow, 339 Mich App 522, 531; 984 NW2d 528 (2021) (quotation
marks and citation omitted). “A trial court’s findings of fact, if any, are reviewed for clear error,
and this Court reviews the ultimate constitutional issue arising from an ineffective assistance of
counsel claim de novo.” Id. Clear error exists where the reviewing court is left with a “definite
and firm conviction” that the lower court made a mistake. Id.A criminal defendant has the right to a fair trial which includes the right to effective
assistance of counsel. Id. “Trial counsel is ineffective when counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.” Id. (quotation marks and citation omitted). “Trial counsel’s performance is
presumed to be effective, and defendant has the heavy burden of proving otherwise.” Id. There
are three situations when an attorney’s performance is so deficient that prejudice is presumed: (1)
when the defendant is completely denied counsel at a “critical stage,” (2) when “counsel entirely
fails to subject the prosecution’s case to meaningful adversarial testing,” and (3) when “counsel is
called upon to render assistance under circumstances where competent counsel very likely could
not.” Bell v Cone, 535 US 685, 696; 122 S Ct 1843; 152 L Ed 2d 914 (2002) (quoting US v Cronic,
466 US 648, 659-662; 104 S Ct 2039; 80 L Ed 2d 657 (1984)). Defendant claims defense counsel’s
performance fell under the second two Cronic prongs, and should, therefore, be presumed to have
prejudiced defendant.
Only in rare situations is an attorney’s performance so deficient that prejudice is presumed.
People v Kammeraad, 307 Mich App 98, 125; 858 NW2d 490 (2014). In order to presume
prejudice based on an attorney’s failure to test the prosecution’s case, “the attorney’s failure must
be complete,” meaning, counsel must “entirely fail” to “subject the prosecution’s case to
meaningful adversarial testing.” Bell, 535 US at 697. Cronic is applicable where counsel fails to
oppose the prosecution throughout the entire proceeding. Id. “The Cronic test applies when the
attorney’s failure is complete, while the Strickland test[, Strickland v Washington, 466 US 668;
104 S Ct 2052; 80 L Ed 2d 674 (1984),] applies when counsel failed at specific points of the
proceeding.” People v Frazier, 478 Mich 231, 244; 733 NW2d 713 (2007). If defense counsel
consults and advises the defendant, and acts according to the defendant’s wishes, defense counsel’s
failure is not complete, and prejudice will not be presumed. Id. at 245.
Our review of the record leads us to conclude that defense counsel’s performance does not
fall under the second Cronic prong because defense counsel did not “entirely fail” to subject the
prosecution’s case to meaningful adversarial testing. See Bell, 535 US at 697 (holding an
attorney’s performance only falls under the second Cronic prong when the attorney completely
fails to subject the prosecution’s case to meaningful adversarial testing). Defense counsel met
with defendant before the PPO violation hearing, advised defendant, cross-examined LH, and
conducted defendant’s direct examination, and made clear he understood the evidence and the
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arguments available to defendant. Additionally, there is no record evidence from which we could
glean that defense counsel acted against defendant’s wishes. Therefore, defense counsel’s failures,
if any, were not complete under the second Cronic prong. Frazier, 478 Mich at 245 (holding
defense counsel’s alleged failures are not “complete” where defense counsel consults and advises
defendant, and acts in accordance to defendant’s wishes).
Defendant also claims defense counsel was “called upon to render assistance under
circumstances where competent counsel very likely could not.” Bell, 535 US at 696. Defendant
claims that, since defense counsel was not ready to proceed with the hearing on May 3, 2022, he
was not prepared to proceed with the May 6, 2022 hearing, and therefore, was called on to render
services where competent counsel likely could not. This argument has no support in the record.
As previously stated, contrary to defendant’s assertions, the record makes clear that defense
counsel knew the factual underpinnings of the case and made his best arguments on behalf of
defendant. We also note that defendant does not point to any specific failure by counsel or any
record evidence that would illustrate counsel’s lack of preparedness. Therefore, because
defendant’s argument is based on inaccurate factual allegations, this argument should be dismissed
for lack of support. See People v Solloway, 316 Mich App 174, 189; 891 NW2d 255 (2016)
(holding defendants have the burden of establishing the factual predicate underlying a claim of
ineffective assistance of counsel).
Defendant also asserts that his counsel was deficient under the Strickland test. Under
Strickland, “[i]n order to obtain a new trial, 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 NW2d 136 (2012), quoting Strickland, 466 US at 669. “If
counsel’s strategy is reasonable, then his or her performance was not deficient.” Isrow, 339 Mich
App at 532 (citation omitted). When evaluating an ineffective assistance of counsel claim, there
is a “strong presumption that trial counsel’s decision-making is the result of sound trial strategy.”
Id. “A deficiency prejudices a defendant when there is a reasonable probability that but for trial
counsel’s errors, the verdict would have been different.” Id.
Defendant claims defense counsel’s conduct was ineffective because defense counsel (1)
failed to meet with defendant, (2) was not fully prepared for the hearing, (3) failed to subpoena
witnesses or phone records, (4) was unaware of the prosecution’s plan to introduce text messages,
(5) failed to introduce evidence he marked as defense exhibits, (6) was not fully prepared for cross-
examination, (7) did not argue the issue being addressed at the hearing, (8) improperly had
defendant testify, and (9) demonstrated a lack of knowledge regarding the right to remain silent.
Again, the record reveals that none of the allegations set forth by defendant are true. At
the PPO violation hearing on May 6, 2022, defense counsel showed his preparedness for the
hearing by objecting to the admission of the text messages, attempting to probe LH’s motivation
to file for the PPO by bringing up specific financial incentives, attempting to dispute the cut-off
for challenging the PPO, demonstrating knowledge of LH’s communication with defendant that
could be interpreted as her having invited defendant onto her property on August 12, 2020,
attempting to establish defendant’s tenancy interest in the property, challenging the service of the
PPO, advising defendant not to make any admissions that could be used against him in the other
criminal proceedings, and carefully leading defendant through his direct examination. This all
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demonstrates, contrary to defendant’s claim, that defense counsel was prepared at the May 6, 2022
PPO violation hearing. Since defendant has failed to show specific instances where defense
counsel was unprepared, and consequently performed deficiently, this claim is rejected. See
People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004) (holding a defendant cannot simply
announce a position, and then leave it for this Court to “discover and rationalize a basis for the
claim.”).
Defendant also claims defense counsel failed to subpoena witnesses, but defendant does
not list any witnesses that should have been subpoenaed. Because defendant has not offered any
proof that there was useful information defense counsel could have elicited from other witnesses,
this claim is meritless. See People v Haynes, 338 Mich App 392, 430; 980 NW2d 66 (2021)
(holding the defendant has the burden of proof to establish that the testimony defense counsel
allegedly failed to elicit would have benefitted the defendant). Additionally, defendant asserts
defense counsel failed to offer exhibits defense counsel had prepared and subpoena phone records,
but defendant has not offered any proof that this occurred, or that the missing evidence would have
helped him. Accordingly, we reject this claim. See Isrow, 339 Mich App at 532 (holding there is
a strong presumption trial counsel’s decisions are the product of sound trial strategy); see also
Solloway, 316 Mich App at 189 (holding the defendants have the burden of establishing the factual
predicate underlying a claim of ineffective assistance of counsel).
Likewise, defendant’s claims that defense counsel was not fully prepared for cross-
examination and was unaware that the prosecution was going to offer text messages are
unsupported by the record, and should be disregarded under the same principles cited above from
Isrow and Harris. In fact, the record demonstrates that defense counsel conducted a thorough
cross-examination of LH, which demonstrated defense counsel’s knowledge of specific financial
incentives LH had to file for the PPO, and trial counsel’s knowledge of text messages between LH
and defendant that could have been interpreted as LH inviting defendant onto her property on
August 12, 2020. Accordingly, defendant is not entitled to relief on this claim.
Defendant’s final claim under this issue is that defense counsel’s performance was
deficient because he did not understand how the right against self-incrimination worked, and
consequently, improperly had defendant testify. Defense counsel informed defendant that his
testimony in this case could be used against him in his other proceedings before defendant began
to testify. Additionally, the trial court explained to defendant how the Fifth Amendment worked,
and advised defendant on his rights before he began to testify. As a result, defendant was well-
informed of his Fifth Amendment rights prior to testifying. When defense counsel sought to have
defendant invoke his privilege while defendant was testifying, the trial court offered defense
counsel the opportunity to withdraw all of defendant’s testimony, and invoke his Fifth Amendment
privilege. Even if we were to conclude that defense counsel did not initially understand the
nuances of his client’s Fifth Amendment’s rights, those misunderstandings of the right to remain
silent did not make his performance deficient because defense counsel’s decision to keep
defendant’s testimony and proceed with cross-examination was based on his corrected
understanding of the Fifth Amendment. Since defense counsel’s decision to keep defendant’s
testimony and proceed with cross-examination was made after he properly understood the Fifth
Amendment privilege, defense counsel’s decision did not constitute deficient performance based
on a misunderstanding of the Fifth Amendment privilege.
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However, even if we were to presume defense counsel’s performance was deficient,
defendant has failed to establish that, “but for counsel’s deficient performance, there is a
reasonable probability that the outcome would have been different.” Trakhtenberg, 493 Mich at
51. Importantly, defendant admitted he texted LH on August 10, 2020, and went to her residence
on August 11, 2020, and on August 12, 2020. The trial judge made it clear that the only issue at
the hearing was whether defendant violated the PPO by contacting LH. Defendant admitted that
he contacted LH and thus the trial court found defendant violated the PPO by communicating with
LH and going to her residence. Therefore, the outcome was not a result of defense counsel’s
deficient performance, but of defendant’s own admissions. Accordingly, defendant is not entitled
to relief.
Affirmed.
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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