People of Michigan v. Marquon Leon Jackson ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 08, 2024
Plaintiff-Appellee, 10:47 AM
v No. 368275
Genesee Circuit Court
MARQUON LEON JACKSON, LC No. 21-048538-FH
Defendant-Appellant.
Before: BORRELLO, P.J., and MURRAY and LETICA, JJ.
PER CURIAM.
Defendant, Marquon Leon Jackson, appeals by delayed leave granted1 his jury-trial
conviction of assaulting, resisting, or obstructing a police officer, MCL 750.81d. Defendant was
sentenced to serve 24 months of probation and 44 days in jail. We affirm.
I. FACTS
On July 29, 2021, defendant refused to leave the Genesys Hospital in Grand Blanc after he
was discharged. Hospital security ultimately removed defendant’s belongings from his hospital
room, and defendant followed security out of the building. Outside the building, defendant
remained standing outside the entrance to the emergency room, refusing to leave. Law
enforcement was called to remove defendant from the property for trespassing. For 40 minutes,
law enforcement attempted to persuade defendant to leave of his own accord, but defendant
continuously ignored law enforcement and refused to answer any questions. Officers’ testimony
established that law enforcement had exhausted every option to allow defendant to leave on his
own. As a result, an officer grabbed defendant by the arm, stood him up from the bench, placed
him in handcuffs, and informed him that he was under arrest. The officer conducted a quick search
and walked defendant to a patrol vehicle. While securing defendant in the vehicle, defendant used
his left foot to prevent the door from closing and unbuckled his seatbelt. Defendant then stood up
1
People v Jackson, unpublished order of the Court of Appeals, entered March 20, 2024 (Docket
No. 368275).
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on the vehicle’s running board and yelled for help. An officer placed his hand on defendant’s
sternum and told him to calm down and sit back down in the vehicle. After a few moments,
defendant lunged off the running board and headbutted the officer in the nose and glasses. The
officer grabbed defendant and, with the help of security guards who were still nearby, took
defendant to the ground and regained control.
Defendant was charged with, and subsequently convicted of, assaulting, resisting, or
obstructing a police officer under MCL 750.81d.
II. ANALYSIS
On appeal, defendant contends that his trial counsel was ineffective during plea
negotiations and by failing to request a specific unanimity jury instruction. Even assuming that
trial counsel was deficient in both regards, defendant has not demonstrated that these deficiencies
prejudiced him.
A. STANDARDS OF REVIEW
An ineffective assistance of counsel argument is preserved by moving for a new trial or an
evidentiary hearing. People v Smith, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No.
362114); slip op at 12. Defendant did not move for a new trial or an evidentiary hearing.2
Therefore, his arguments are unpreserved, and review is limited to errors apparent from the record.
Id. “Whether a defendant has received ineffective assistance of counsel is a mixed question of fact
and constitutional law.” People v Yeager, 511 Mich 478, 487; 999 NW2d 490 (2023). “We review
for clear error the trial court’s factual findings, and we review de novo questions of constitutional
law.” Id. (quotation marks, citation, and alteration omitted).
B. PLEA NEGOTIATIONS
Defendant argues that his trial counsel was deficient for failing to explain to him the
potential availability of the Holmes Youthful Trainee Act (HYTA), MCL 762.16 et seq. Defendant
contends this error was prejudicial, requiring reversal of his conviction. Even assuming that
counsel failed to consider whether defendant was eligible for sentencing under the HYTA and
provide an explanation to defendant prior to trial, defendant has not demonstrated that any error
was prejudicial.
The Michigan and United States Constitutions require that criminal defendants receive
effective assistance of counsel in their defense. People v Shaw, 315 Mich App 668, 672; 892
NW2d 15 (2016), citing US Const, Am VI; Const 1963, art 1, § 20. “[T]he proper standard for
attorney performance is that of reasonably effective assistance.” Strickland v Washington, 466 US
668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “[A] defendant is entitled to the effective
assistance of counsel in the plea-bargaining process.” People v Douglas, 496 Mich 557, 591-592;
852 NW2d 587 (2014), citing Lafler v Cooper, 566 US 156, 162; 132 S Ct 1376; 182 L Ed 2d 3982
Defendant’s trial counsel passed away after trial.
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(2012). “A defendant seeking relief for ineffective assistance in this context must meet
Strickland’s familiar two-pronged standard by showing (1) ‘that counsel’s representation fell
below an objective standard of reasonableness,’ and (2) ‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Douglas, 496 Mich at 592, quoting Lafler, 566 US at 163. “In demonstrating prejudice, the
‘defendant must show the outcome of the plea process would have been different with competent
advice.’ ” Id. This Court presumes that a defendant received effective assistance of counsel, and
“the defendant bears a heavy burden of proving otherwise.” People v Head, 323 Mich App 526,
539; 917 NW2d 752 (2018) (quotation marks and citation omitted).
In claiming ineffective assistance of counsel, a defendant must identify the “acts or
omissions of counsel that are alleged not to have been the result of reasonable professional
judgment.” Strickland, 466 US at 690. This Court in turn evaluates “whether the trial attorney’s
acts or omissions were outside the wide range of professionally competent assistance.” People v
Green, 322 Mich App 676, 684; 913 NW2d 385 (2018) (quotation marks and citation omitted),
overruled in part on other grounds by People v Peeler, 509 Mich 381, 394 (2022). Although the
decision to plead guilty lies solely with a defendant, a defendant’s counsel must enable “the
defendant to make an informed and voluntary choice between trial and a guilty plea.” People v
Corteway, 212 Mich App 442, 446; 538 NW2d 60 (1995).
Defendant contends that his trial counsel was ineffective by failing to discuss defendant’s
eligibility for a plea bargain under the HYTA. Defendant has failed to establish that he was
prejudiced by defense counsel’s allegedly deficient performance. See People v Leffew, 508 Mich
625, 637; 975 NW2d 896 (2022).
To show prejudice from ineffective assistance of counsel where a plea offer
has lapsed or been rejected because of counsel’s deficient performance, defendants
must demonstrate a reasonable probability they would have accepted the earlier
plea offer had they been afforded effective assistance of counsel. Defendants must
also demonstrate a reasonable probability the plea would have been entered without
the prosecution canceling it or the trial court refusing to accept it, if they had the
authority to exercise that discretion under state law. To establish prejudice in this
instance, it is necessary to show a reasonable probability that the end result of the
criminal process would have been more favorable by reason of a plea to a lesser
charge or a sentence of less prison time. [Missouri v Frye, 566 US 134, 147; 132
S Ct 1399; 182 L Ed 2d 379 (2012).]
“Reasonable probability means a probability sufficient to undermine confidence in the outcome.”
Leffew, 508 Mich at 637 (quotation marks and citation omitted).
Defendant has not demonstrated a reasonable probability that a more favorable result
would have occurred had counsel informed him about HYTA. First, it is far from clear that
defendant would have chosen to proceed under HYTA had he been offered the opportunity.
Defendant not only refused multiple opportunities to plead guilty to a lesser offense, apparently
against his trial counsel’s advice, but he also specifically requested that the jury not be instructed
regarding a lesser included charge, which was expressly against his trial counsel’s advice.
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More importantly, the record does not support a conclusion that the prosecution would
have consented to applying HYTA as required under MCL 762.11(1); MCL 762.11(2), when the
offense was committed on or after defendant’s twenty-first birthday. In fact, the prosecution stated
at sentencing that it was “strenuously objecting to HYTA in this case.” Accordingly, defendant
has not demonstrated a reasonable probability of a more favorable outcome absent counsel’s
alleged error. See Douglas, 496 Mich at 598.
C. INSTRUCTIONAL ERROR
Defendant’s second ineffective assistance of counsel argument is premised on trial
counsel’s failure to request a specific unanimity instruction. Again, even assuming that counsel
should have requested this instruction, defendant has failed to establish that his counsel’s alleged
deficient performance was prejudicial.
Defendant was charged with resisting or obstructing a police officer under MCL
750.81d(1), the elements of which are: “(1) the defendant assaulted, battered, wounded, resisted,
obstructed, opposed, or endangered a police officer, and (2) the defendant knew or had reason to
know that the person that the defendant assaulted, battered, wounded, resisted, obstructed,
opposed, or endangered was a police officer performing his or her duties.” People v Quinn, 305
Mich App 484, 491; 853 NW2d 383 (2014) (quotation marks and citation omitted). This Court
recently held the prosecution must also establish a third element: that the officers acted lawfully.
People v Murawski, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 365852); slip op
at 4, citing Quinn, 305 Mich App at 492; People v Moreno, 491 Mich 38, 51-52; 814 NW2d 624(2012).
Criminal defendants are afforded the right to a unanimous jury verdict. Const 1963, art 1,
§ 14; MCR 6.410(B); Ramos v Louisiana, 590 US 83, 93; 140 S Ct 1390; 206 L Ed 2d 583 (2020).
“In order to protect a defendant’s right to a unanimous verdict, it is the duty of the trial court to
properly instruct the jury regarding the unanimity requirement.” People v Cooks, 446 Mich 503,
511; 521 NW2d 275 (1994). This duty is often fulfilled “by providing the jury with a general
instruction on unanimity.” People v Chelmicki, 305 Mich App 58, 68; 850 NW2d 612 (2014).
However, a specific unanimity instruction may be required where “1) the alternative acts are
materially distinct (where the acts themselves are conceptually distinct or where either party has
offered materially distinct proofs regarding one of the alternatives), or 2) there is reason to believe
the jurors might be confused or disagree about the factual basis of defendant’s guilt.” Cooks, 446
Mich at 524. “When a statute lists alternative means of committing an offense which in and of
themselves do not constitute separate and distinct offenses, jury unanimity is not required with
regard to the alternate theory.” Chelmicki, 305 Mich App at 68 (quotation marks, citation, and
alteration omitted).
Defendant contends that a specific unanimity instruction was required because the
prosecution relied on materially distinct proofs and alternative theories of guilt: that defendant had
either resisted by not following officer instructions or battered by head-butting the officer.
However, trial counsel’s failure to request a specific unanimity instruction does not undermine
confidence in the outcome. See Leffew, 508 Mich at 637. Significantly, defendant did not contest
the officers’ testimony regarding his conduct or offer a separate defense to either theory.
Therefore, “the sole task of the jury was to determine the credibility of the [witnesses] with respect
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to the pattern of alleged conduct.” Cooks, 446 Mich at 528. Testimony established a sufficient
factual basis for the jury to find that defendant was noncompliant with lawful orders and had
headbutted an officer while under arrest. These were alternative means to committing the same
offense. Chelmicki, 305 Mich App at 68.
Additionally, the trial court instructed the jury regarding all of the elements of the charged
offense, that “[a] verdict in a criminal case must be unanimous,” and that “it is necessary that each
of you agrees on that verdict.” There is no indication that the jurors in this case did not follow the
instructions. See People v Davis, 509 Mich 52, 78; 983 NW2d 325 (2022). Further, the jury did
not provide the trial court with any questions while deliberating, and it deliberated for only
approximately 45 minutes before reaching a verdict. Defendant has provided no support for a
conclusion that the jury was confused or disagreed about the factual basis of defendant’s guilt or
that the jury verdict was not unanimous in this case. This is not a case where there was “relatively
little evidence to support a guilty verdict.” People v Urbanski, ___ Mich App ___, ___; ___ NW3d
___ (2023) (Docket No. 359011); slip op at 6 (quotation marks and citation omitted).
Affirmed.
/s/ Stephen L. Borrello
/s/ Christopher M. Murray
/s/ Anica Letica
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