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People v. Traver

Court of Appeals of Michigan

May 23, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
GARY MICHAEL TRAVER, Defendant-Appellant.

          Mackinac Circuit Court LC No. 2012-003474-FH

          Before: Gleicher, P.J., and Sawyer and M. J. Kelly, JJ.

         ON REMAND

          PER CURIAM.

         This 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.

         The 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[1] 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 People v Traver, unpublished order of the Court of Appeals (7/20/2018).

         On 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.

         A claim 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 novo. Id.

         A 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).

         We turn 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 follows:

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.]

         While 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.

         Turning 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 ...

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