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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

February 27, 2018

v No. 335154

Wayne Circuit Court

DEANDRE MATHIS, LC No. 16-004090-01-FH

Defendant-Appellant.

Before: TALBOT, C.J., and METER and TUKEL, JJ.

PER CURIAM.

This case arises from the search of a stopped vehicle in Detroit on the evening of April 

16, 2016, and the subsequent discovery of a loaded firearm underneath the seat defendant was 

occupying on the front passenger side of the vehicle. A jury subsequently convicted defendant 

of carrying a concealed weapon in a motor vehicle (CCW), MCL 750.227(2).1 The trial court 

sentenced defendant, as a third habitual offender, MCL 769.11, to 34 months to 10 years’

imprisonment for his CCW conviction. Defendant appeals as of right. We affirm defendant’s 

conviction and sentence, vacate the late fee imposed against defendant for failure to timely pay 

costs, and remand for entry of a corrected judgment of sentence specifying a due date for the 

ordered costs and fees.

I. THE DEADLOCKED JURY INSTRUCTION

Defendant argues on appeal that the trial court erred by providing an unduly coercive and 

nonstandard deadlocked jury instruction to the jury after the jury had indicated that it was not in 

agreement and sought instruction on how to proceed. We disagree.

At trial, on the second day of jury deliberations, the jury returned to the court room with 

two notes. The first note regarded a request to see police reports, which the trial court denied. 

 1 Defendant was also charged with possession of a firearm during the commission of a felony 

(felony-firearm), MCL 750.227b, and possession of a firearm by a person convicted of a felony 

(felon-in-possession), MCL 750.224f. However, the jury acquitted defendant of the felonyfirearm and felon-in-possession charges.
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The second note, submitted by the foreperson, stated, “We are not in agreement. What happens 

now?” The trial court instructed the jury as follows, “Well, it took you three days to try the case, 

right? I guess you can be three days in deliberations. Go back to the jury room and consider 

your verdict again.” After the trial court gave its instruction, and after the jury was sent back, the 

trial court asked the parties if there were any objections or corrections to the instructions. 

Defense counsel stated, “None, judge,” and the prosecutor stated, “No, your honor.” The jury 

subsequently resumed deliberations and continued deliberating until the jury emerged with a 

verdict later that afternoon. Defendant was convicted of the CCW charge and acquitted of the 

felon-in-possession and felony-firearm charges.

The prosecution contends that defendant waived any objection to the trial court’s 

supplemental jury instruction. “Waiver” is “ ‘the intentional relinquishment or abandonment of a 

known right.’ ” People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011) (citation 

omitted). “ ‘One who waives his rights under a rule may not then seek appellate review of a 

claimed deprivation of those rights, for his waiver has extinguished any error.’ ” Id (citation 

omitted). “Unlike waiver, forfeiture is ‘the failure to make the timely assertion of a right.’ ” Id.

at 504 n 27.

In this case, defendant did not waive objection to the trial court’s supplemental 

instruction, but merely forfeited objection. Following the trial court’s response to the jury’s 

note, defense counsel simply stated, a single time, that he had no objection to the by-then already 

given instruction. The record does not reveal the trial judge discussing his planned response to 

the notes with counsel prior to giving that response or that the trial judge even revealed the 

contents of the notes. We review the entire record in order to determine whether or not a 

defendant waived an issue. Id. at 504 n 26. For example, in Kowalski our Supreme Court found 

waiver where defense counsel (1) discussed the instructions with the trial court, (2) affirmatively 

approved the instructions because he thought they were identical to his own proposed 

instructions, and (3) then reaffirmed his approval three more times. Id. “Thus, the record clearly 

demonstrates waiver—an intentional relinquishment of a known right—because counsel’s 

affirmative statements were repeated, express and unequivocal and concerned instructions that 

counsel had more than ample time to fully review and consider.” Id.

Here by contrast, there was no discussion with the trial court, either of the jury’s question 

or of the trial judge’s proposed response. Defense counsel never affirmatively approved the 

instruction, but merely, after it had been given, did not object to it. The non-objection occurred 

only a single time. Therefore, rather than a waiver, which would extinguish any claimed 

mistake, we review the appropriateness of the supplemental jury instruction for plain error

affecting defendant’s substantial rights. See People v Grant, 445 Mich 535, 552-554; 520 NW2d 

123 (1994); see also People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999) (reaffirming 

Grant).

To satisfy the plain error test, defendant must show that an obvious or clear error

occurred and that the error affected the outcome of the trial court proceedings. Carines, 460 

Mich at 763-764. However, reversal is only warranted when the plain error results in the 

conviction of an “actually innocent defendant” or when an error “seriously affect[s] the fairness, 

integrity, or public reputation of the judicial proceedings independent of defendant’s innocence.” 

Id. (quotation marks and citation omitted).
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Defendant contends that because the nonstandard deadlocked jury instruction failed to 

provide meaningful guidance to the jury, and because the instruction carried with it a scolding 

tone and an implied threat of prolonged deliberations, the instruction amounted to a substantial 

departure from the standard deadlocked jury instruction, M Crim JI 3.12, and thus was unduly 

coercive. We disagree.

In People v Sullivan, 392 Mich 324, 342; 220 NW2d 441 (1974), the Michigan Supreme 

Court adopted a standard deadlocked jury instruction devised by the American Bar Association 

and indicated that “[a]ny substantial departure therefrom shall be grounds for reversible error.” 

Michigan has since incorporated the ABA standard into its model criminal jury instructions. 

People v Pollick, 448 Mich 376, 382 n 12; 531 NW2d 159 (1995) (referring to CJI2d 3.11 and 

CJI2d 3.12, which are now M Crim JI 3.11 and M Crim JI 3.12, respectively). M Crim JI 3.12 

provides:

(1) You have returned from deliberations, indicating that you believe you 

cannot reach a verdict. I am going to ask you to please return to the jury room 

and resume your deliberations in the hope that after further discussion you will be 

able to reach a verdict. As you deliberate, please keep in mind the guidelines I 

gave you earlier.

(2) Remember, it is your duty to consult with your fellow jurors and try to 

reach agreement, if you can do so without violating your own judgment. To 

return a verdict, you must all agree, and the verdict must represent the judgment 

of each of you.

(3) As you deliberate, you should carefully and seriously consider the 

views of your fellow jurors. Talk things over in a spirit of fairness and frankness.

(4) Naturally, there will be differences of opinion. You should each not 

only express your opinion but also give the facts and the reasons on which you 

base it. By reasoning the matter out, jurors can often reach agreement.

(5) If you think it would be helpful, you may submit to the bailiff a 

written list of the issues that are dividing or confusing you. It will then be 

submitted to me. I will attempt to clarify or amplify the instructions in order to 

assist you in your further deliberations.

(6) When you continue your deliberations, do not hesitate to rethink your 

own views and change your opinion if you decide it was wrong.

(7) However, none of you should give up your honest beliefs about the 

weight or effect of the evidence only because of what your fellow jurors think or 

only for the sake of reaching agreement.

The instruction note attendant to M Crim JI 3.12 states that the standard deadlocked jury 

instruction is “to be given when a jury returns from deliberation unable to reach a verdict.”
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Whether an instruction substantially departs from the standard deadlocked jury 

instruction depends on whether the instruction has an “undue tendency of coercion,” which 

entails asking whether the given instruction could have “cause[d] a juror to abandon his 

conscientious dissent and defer[red] to the majority solely for the sake of reaching agreement?” 

Pollick, 448 Mich at 384 (quotation marks and citation omitted). The test for a substantial 

departure from the standard deadlocked jury instruction cannot and does not rest solely on a 

“gross difference in language.” People v Hardin, 421 Mich 296, 314; 365 NW2d 101 (1984).

An optimal supplemental deadlocked jury instruction will “generate discussion towards 

the resolution of the case but will avoid forcing a decision.” Sullivan, 392 Mich at 334. 

However, if the supplemental deadlocked jury instruction “can cause a juror to abandon his 

conscientious dissent and defer to the majority solely for the sake of reaching agreement, then 

that charge should not be used.” Id. (quotation marks and citation omitted). Relevant to the 

inquiry whether a given deadlocked jury instruction is unduly coercive is whether the trial court 

“required, or threatened to require, the jury to deliberate for an unreasonable length of time or for 

unreasonable intervals,” and whether the given instruction “calls for the jury, as part of its civic 

duty, to reach a unanimous verdict,” and indicates that “failure to reach a verdict constitutes a 

failure of purpose.” Hardin, 421 Mich at 316. “An omission, or an incomplete instruction, is 

less likely to be prejudicial than a misstatement of the law.” Henderson v Kibbe, 431 US 145, 

155; 97 S Ct 1730; 52 L Ed 2d 203 (1977).

In this case, we find no error, let alone any plain error. There is no question that the 

supplemental instruction was not helpful to the jury. It had a sarcastic tone which has no place in 

judicial proceedings, and it did not discuss with the jury the jury’s duties in light of the questions

posed. There was nothing in the instruction calculated to generate discussion toward the 

resolution of the case. Certainly the trial court would have been well advised to adhere more 

closely to M Crim JI 3.12.

Nonetheless, the instruction did not affirmatively misstate the law and, under the 

circumstances, was not unduly coercive. The instruction directed the jurors to continue 

deliberating, albeit without further direction as to how to do so. It did not directly indicate that 

the trial court would not accept a hung decision after further deliberations. Further, the trial 

court’s instruction implicitly suggested that if the jury was still deadlocked after three days of 

deliberation, the trial court would accept a hung verdict. The instruction did not chastise the jury 

for failing its civic duty by failing to reach a verdict. The jurors continued deliberations for

approximately four hours after the instruction was given. That period of deliberation suggests 

that jurors did not feel compelled to abandon their positions merely to avoid prolonged 

deliberations, or else one would expect a compelled verdict to have been reached sooner. Nor 

does the record indicate that the jury was being forced to deliberate for unreasonable intervals 

before being allowed to take a break. Put simply, while the given instruction was not wellhandled by the trial judge, was unhelpful to the jury, and certainly was not an “optimal 

instruction,” it was, for the reasons stated above not unduly coercive, at least under a clear error 

standard. Because there was no error, we need not further consider whether the other 

requirements of the plain error standard were met.
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II. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Defendant also claims that his trial attorney was ineffective for failing to object to the 

allegedly coercive instruction. We disagree.

Claims of ineffective assistance of trial counsel should be raised by moving for a new 

trial or an evidentiary hearing; otherwise, review of those claims will be limited to mistakes 

apparent on the record. People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008); People 

v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000). In this case, defendant did neither. 

Consequently, defendant has failed to create a testimonial record to support his claim. People v 

Dixon, 217 Mich App 400, 408; 552 NW2d 663 (1996). By failing to do so, review of 

defendant’s ineffective assistance claim is foreclosed unless the existing trial court record 

“contains sufficient detail to support defendant’s claim.” Id.

“The question whether [defendant’s trial attorney] performed ineffectively is a mixed 

question of law and fact.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). 

Questions of constitutional law arising from defendant’s claim are reviewed de novo, and 

findings of fact relating to defendant’s claim are reviewed for clear error. Id.

Claims of ineffective assistance of trial counsel are evaluated under the standard set forth 

in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). People v 

Hoag, 460 Mich 1, 5; 594 NW2d 57 (1999); People v Pickens, 446 Mich 298; 521 NW2d 797 

(1994). “In order to obtain a new trial, [a] defendant must show that (1) [trial] counsel’s 

performance fell below an objective standard of reasonableness and (2) but for [trial] counsel’s 

deficient performance, there is a reasonable probability that the outcome would have been 

different.” Trakhtenberg, 493 Mich at 51.

Under the deficient performance prong, a reviewing court evaluates whether the trial 

attorney’s “acts or omissions were outside the wide range of professionally competent 

assistance.” People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012) (quotation marks and 

citation omitted). In doing so, defendant’s trial attorney should be “strongly presumed to have 

rendered adequate assistance and made all significant decisions in the exercise of reasonable 

professional judgment.” Id. (quotation marks and citation omitted). Thus, defendant must 

overcome a “strong presumption that [trial] counsel’s performance was born from a sound trial 

strategy.” Trakhtenberg, 493 Mich at 52.

If defendant’s assertion does not fall under one of the narrow circumstances where 

prejudiced is presumed in ineffective assistance claims, defendant must “affirmatively prove 

prejudice,” by showing “a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Vaughn, 491 Mich at 671 (quotation 

marks and citation omitted).

Defendant argues that his trial attorney was ineffective because the attorney failed to 

object to the nonstandard deadlocked jury instruction given to the jurors after they indicated that 

they were at an impasse and sought instruction. But defendant cannot show how counsel’s 

failure to object to the given deadlocked jury instruction fell below an objective standard of 

reasonableness. As discussed above, the given deadlocked jury instruction was not unduly 
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coercive. Consequently, any objection by defendant’s trial attorney on that ground would have 

been futile, and counsel is not ineffective for failing to raise a futile objection regarding a 

meritless claim. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010) 

(“Failing to advance a meritless argument or raise a futile objection does not constitute 

ineffective assistance of counsel.”).

III. THE LATE FEE FOR FAILURE TO TIMELY PAY COSTS

Finally, defendant asserts that the trial court improperly assessed a late fee against him 

for failure to timely pay costs because the trial court never set a deadline for repayment. We 

agree.

Defendant was ordered to pay $1,558 in various court costs and other assorted fees. 

More specifically, defendant was ordered to pay $68 for state minimum costs, $130 for crime 

victim’s fee, $60 DNA assessment fee, and $1,300 in court costs. However, the trial court left 

the due date for payment of those obligations blank on the judgment of sentence. The judgment 

of sentence indicated that if the imposed “[f]ines, costs, and fees” were “not paid within 56 days 

of the due date,” defendant would be “subject to a 20% late fee on the amount owed.” On 

November 8, 2016, 57 days after sentencing on September 12, 2016, a 20% late fee, based on the 

$1,300 in court costs, was assessed against defendant and entered into the lower court register of 

actions.

Defendant argues that the imposition of the 20% late fee was improper because the trial 

court left the due date for the penalties, fees, and costs blank on the judgment on sentence; thus, 

the late fee was unauthorized under MCL 600.4803(1). That is, because MCL 600.4803(1) only 

authorizes a 20% late fee when a defendant fails to fully pay ordered costs and fees “within 56 

days after that amount is due and owing,” the late fee was improper because the 56-day period 

had not yet elapsed given that the condition to trigger the period—a specified date—was absent.

Challenges to the imposition of costs and fees must be raised when the court imposes the 

fee; otherwise, the claim of error will be unpreserved. See People v Jackson, 483 Mich 271, 292

n 18; 769 NW2d 630 (2009). Here, the issue is not preserved because defendant never 

challenged the imposition of the late fee at the trial court.

This Court reviews the interpretation and application of statutes de novo. People v Cole, 

491 Mich 325, 330; 817 NW2d 497 (2012). But we review unpreserved claims of error for plain 

error affecting a defendant’s substantial rights. Carines, 460 Mich at 763-764. 

“Courts may only impose costs in a criminal case when such costs are authorized by 

statute.” People v Juntikka, 310 Mich App 306, 310; 871 NW2d 555 (2015), citing People v 

Cunningham, 496 Mich 145, 149; 852 NW2d 118 (2014). “When this Court interprets statutory 

language, our primary goal is to discern the intent of the Legislature as expressed in the text of 

the statute.” Grimes v Mich Dep't of Transp, 475 Mich 72, 76; 715 NW2d 275 (2006). This 

Court begins this task “by examining the plain language of the statute; where that language is 

unambiguous, we presume that the Legislature intended the meaning clearly expressed—no 

further judicial construction is required or permitted, and the statute must be enforced as 

written.” Id. (quotation marks and citation omitted). In so doing, this Court “assign[s] the words 
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of a statute their plain and ordinary meaning,” unless they are defined in the statute or they are 

otherwise terms of art or technical words. Id.

The statute that allows for the imposition of defendant’s late fee, MCL 600.4803(1), 

provides, in pertinent part:

(1) A person who fails to pay a penalty, fee, or costs in full within 56 days 

after that amount is due and owing is subject to a late penalty equal to 20% of the 

amount owed. The court shall inform a person subject to a penalty, fee, or costs 

that the late penalty will be applied to any amount that continues to be unpaid 56 

days after the amount is due and owing. Penalties, fees, and costs are due and 

owing at the time they are ordered unless the court directs otherwise. The court 

shall order a specific date on which the penalties, fees, and costs are due and 

owing. If the court authorizes delayed or installment payments of a penalty, fee, 

or costs, the court shall inform the person of the date on which, or time schedule 

under which, the penalty, fee, or costs, or portion of the penalty, fee, or costs, will 

be due and owing. A late penalty may be waived by the court upon the request of 

the person subject to the late penalty.

Defendant’s judgment of sentence, however, did not assign a “specific date on which the 

penalties, fees, and costs are due and owing.” Instead, it left blank the space provided for a date 

on the judgment of sentence.

Use of the word “shall” in a statute indicates a mandatory directive. People v Lockridge, 

498 Mich 358, 387; 870 NW2d 502 (2015). Moreover, a trial court speaks through its written 

judgments and orders. People v Mysliwiec, 315 Mich App 414, 418 n 2; 890 NW2d 691 (2016). 

Because the statute plainly states that the trial court “shall order a specific date on which the 

penalties, fees, and costs are due and owing,” and the trial court failed to do so, it follows that the 

56-day period never elapsed given that there was never a specific date to trigger it. That is, the 

statute obligates the trial court to speak about a specific due date for penalties, fees, and costs, 

and its failure to do so was in contravention of the statute. Given that it left a blank due date, the 

trial court has not sufficiently spoken, as required by the statute, to trigger the 56-day period 

before a late fee can be imposed. Consequently, the trial court clearly lacked authority to impose 

the late fee under the statute because the 56-day period had yet to start running.

The plain error also was prejudicial. The imposition of the unauthorized fee adversely 

affected defendant’s substantial rights and correspondingly undermines the fairness, integrity, 

and public reputation of judicial proceedings, in that defendant was subjected to a significant 

penalty to which he never should have been exposed, and to which he would not have been 

exposed had the trial court followed the statutory mandate. He thus has established sufficient 

prejudice for relief under the plain error rule.
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We affirm defendant’s underlying conviction and sentence, vacate the late fee imposed 

against defendant for failure to timely pay costs, and remand for entry of a corrected judgment of 

sentence specifying a due date for the ordered costs and fees. We do not retain jurisdiction.

/s/ Michael J. Talbot

/s/ Patrick M. Meter 

/s/ Jonathan Tukel