Mackinac Circuit Court LC No. 2012-003474-FH
Before: Gleicher, P.J., and Sawyer and M. J. Kelly, JJ.
matter is once again before us, following a remand by the
Supreme Court. People v Traver, 502 Mich. 23; 917
N.W.2d 260 (2018) (Traver II). In the original
appeal, this Court reversed defendant's convictions for
assault with a dangerous weapon, MCL 750.82, and possession
of a firearm during the commission of a felony, MCL 750.227b.
People v Traver, 316 Mich.App. 588; 894 N.W.2d 89
(2016) (Traver I). The majority concluded that the
trial court erred by providing the jury with only written
instructions on the elements of the offenses without also
reading the instructions to the jury, and that the written
instructions were "hopelessly incorrect" with
respect to the felony-firearm charge. Id. at
591-592. Judge Sawyer dissented, concluding that defendant
waived any claimed error in the instructions by expressing
satisfaction with the instructions. Id. at 603
(Sawyer, J., dissenting). Judge Sawyer also rejected
defendant's claim of ineffective assistance of counsel.
Id. at 611.
Supreme Court, in lieu of granting leave, agreed with the
dissent that defendant had waived any issue of instructional
error and remanded the matter to this Court to consider the
previously unaddressed arguments related to defendant's
claims of ineffective assistance of counsel. 502 Mich. at 43.
In our prior opinion, we directed the trial court to hold a
Ginther hearing and to consider defendant's claim
that trial counsel was ineffective in not advising defendant
of the potential consequences of withdrawing his plea. 316
Mich.App. at 602-603. Because the Supreme Court did not
disturb this portion of our opinion, we remanded this matter
to the trial court for that purpose. People v
Traver, unpublished order of the Court of Appeals
remand, the trial court concluded that defendant was
well-aware of the potential consequences of withdrawing his
plea. Following that remand, we now must address the
resolution of that issue, as well as the claims previously
raised by defendant that trial counsel was ineffective for
(1) failing to call character witnesses, (2) failing to call
a tow-truck driver to testify, and (3) failing to retain an
expert witness. Defendant also now raises a new claim that
counsel was ineffective for failing to move to quash the
information. After further considering these claims, we now
affirm defendant's convictions and sentences.
of ineffective assistance of counsel presents a mixed
question of fact and constitutional law. People v
Swain, 288 Mich.App. 609, 643; 794 N.W.2d 92 (2010). The
trial court's factual findings are reviewed for clear
error, while the ultimate constitutional issue is reviewed de
defendant seeking relief based on a claim of ineffective
assistance must show "(1) that trial counsel's
performance was objectively deficient, and (2) that the
deficiencies prejudiced the defendant." People v
Randolph, 502 Mich. 1, 9; 917 N.W.2d 249 (2018).
"Effective assistance is presumed, and a defendant bears
a heavy burden to prove otherwise." Swain, 288
Mich.App. at 643. The measure of an attorney's
performance under the first prong of the analysis is
"simply reasonableness under prevailing professional
norms." Padilla v Kentucky, 559 U.S. 356, 366;
130 S.Ct. 1473; 176 L.Ed.2d 284 (2010) (citation omitted).
"In examining whether defense counsel's performance
fell below an objective standard of reasonableness, a
defendant must overcome a strong presumption that
counsel's performance was born from a sound trial
strategy." People v Trakhtenberg, 493 Mich. 38,
52; 826 N.W.2d 136 (2012). "This Court does not
second-guess counsel on matters of trial strategy, nor does
it assess counsel's competence with the benefit of
hindsight." People v Russell, 297 Mich.App.
707, 716; 825 N.W.2d 623 (2012).
first to the issue specifically mentioned by the Supreme
Court in its opinion remanding the matter to this Court. The
Supreme Court briefly addressed the issue in a footnote as
The majority further erred by holding that it need not
"resort to ineffective assistance of counsel principles
to circumvent potential waiver issues . . . ."
Traver, 316 Mich.App. at 601. In this case,
defendant must establish a valid claim of ineffective
assistance of counsel in order for him to be entitled to
relief on his waived claims of instructional error. Defendant
raised the claims of ineffective assistance in the Court of
Appeals, but they were not addressed by the majority. We
decline to address them in the first instance and instead
remand to the Court of Appeals for consideration of
defendant's arguments that defense counsel was
constitutionally ineffective to the extent that
defendant's claims of instructional error were waived.
[Traver, 502 Mich. at 43 n 10.]
the issue was not addressed in the majority opinion in the
original appeal, Judge Sawyer thoroughly discussed, and
rejected, the claim of ineffective assistance of counsel as
it relates to the claims of instructional error in his
dissenting opinion. Traver, 316 Mich.App. at 603-609
(Sawyer, J., dissenting). Moreover, defendant did
not provide further argument on this issue in his
supplemental brief following remand. Accordingly, we now
adopt Judge SAWYER's dissenting opinion as it relates to
this issue and reject defendant's claim.
next to the issue of the plea withdrawal, the trial court
held the hearing on remand and concluded that defendant was
adequately advised on the potential consequences of
withdrawing his plea. The trial court concluded as follows:
The principle [sic] argument by the Defendant in support of
his ineffective assistance of counsel position was that he
was never advised of the consequences of a conviction under
the Weapons-Felony charge, if convicted. Attorney Hartman was
adamant in his testimony at the Ginther Hearing,
that he advised the Defendant of the "risk-reward"
circumstances if he were to proceed to trial with an added
count of Felony Firearm, and the consequences of a conviction
being a mandatory two years in prison. The Court can, and
does, confirm that the People advised the Defendant on the
record that if the matter proceeded to trial, the Felony
Firearm charge would be added to the Information. Despite
Defendant's testimony to the contrary, the Court is
satisfied that this fact was known by the Defendant, as his
testimony noted below demonstrates. As further testified by
Attorney Hartman, it was "inconceivable" that this
was not explained to the Defendant on more than one occasion.
Attorney Hartman ...