If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

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UNPUBLISHED

July 22, 2021

v No. 350536

Wayne Circuit Court

CHRISTOPHER ANDREW CANALES, LC No. 19-002316-01-FC

Defendant-Appellant.

Before: TUKEL, P.J., and SAWYER and CAMERON, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of torture, MCL 750.85; unarmed 

robbery, MCL 750.530; unlawful imprisonment, MCL 750.349b; assault with intent to do great 

bodily harm (AWIGBH), MCL 750.84, felonious assault, MCL 750.82; and assault or assault and 

battery (assault and battery), MCL 750.81. Defendant was sentenced, as a fourth-offense habitual 

offender, MCL 769.12, to 50 to 75 years’ imprisonment for his torture conviction, 25 to 37 1⁄2 

years’ imprisonment for each of his unarmed robbery, unlawful imprisonment, AWIGBH, and 

felonious assault convictions, and 93 days’ jail for his assault and battery conviction. On appeal, 

defendant argues he was (1) denied due-process when the prosecutor failed to timely disclose 

photographs of the victim’s injuries until trial, (2) prejudiced by the prosecutor’s conduct and the 

trial court’s failure to enforce the discovery order, (3) denied effective assistance of counsel by 

trial counsel’s failure to ensure that defendant had the opportunity to review all of the discovery 

before deciding whether to accept a plea offer and failure to call a witness at trial, and (4) as a 

result, the trial court erred in its findings of fact, leading this Court to deny the motion to remand 

in error. In addition, defendant argues the trial court made a mistake of law during his sentencing, 

and the failure to recognize and raise the error by trial counsel and appellate counsel constituted 

ineffective assistance of counsel. We affirm, but conclude that trial counsel was ineffective at 

sentencing in failing to recognize errors in the presentence investigation report (PSIR), and we 

remand solely for resentencing and to correct the PSIR.
-2-

I. FACTS AND PROCEDURAL BACKGROUND

This case arises from the physical assault incident of the victim. Around midnight, on the 

day of the incident, the victim was walking home from his friends’ apartment building when he 

ran into defendant and codefendant, Clarence Campbell.1 Defendant and Campbell asked the 

victim for the money he owed them, which the victim knew was the $20 the victim owed to 

“somebody else . . . over a phone.” After insisting he had no money, the victim was dragged by 

his hooded sweatshirt by defendant and Campbell into an apartment building. The victim was 

dragged into apartment unit one, which he recognized as the place where he had purchased crack 

cocaine and heroin in the past. Inside the apartment, the victim saw between five and seven people, 

recognizing some of the people but only identifying the apartment’s tenant, Dawn Gilson, and a 

man she lived with. In the living room of the apartment, defendant and Campbell punched the 

victim and searched him for money, pulling off his clothes. At one point, Campbell found the 

victim’s debit card and called the victim’s bank to determine the balance of the account. The 

victim testified that defendant and Campbell refused to let him call someone to obtain the money 

he owed them. Defendant obtained a stick and started hitting the victim with it until it broke into 

two pieces, then defendant and Campbell each started hitting the victim with the pieces of stick. 

The victim was then dragged into the bathroom and told to sit on the toilet while defendant and 

Campbell cut the victim’s hair with scissors and electric clippers. While attempting to cover his 

face with his hands and close his eyes, the victim felt hair spray being sprayed in his face. The 

victim heard someone say “it’s flammable[,] . . . [a]nd the next thing you know I hear a lighter go 

off and . . . a burning feeling on my face. I open up my eyes real[ly] quick and [my face is] just 

burning and it’s on fire.” The victim got in the bathtub and attempted to put out the fire using the 

shower curtain. After the fire was extinguished, defendant turned on the hot water to the shower. 

The victim attempted to lower the water temperature but defendant told him not to touch the faucet 

handle. Defendant eventually turned off the water, turned off the bathroom light, and left the 

victim in the bathroom alone. The victim heard a knock at the door to the apartment and defendant 

told the victim “to keep quiet or he was gonna kill me.” 

Outside the apartment, the responding Detroit Police Officers, Mitchell Griggs and Brent 

Miller, heard “a fuss on the inside [of the apartment] like people moving around, closing doors, 

that kind of thing.” The door to the apartment was opened by a female occupant, the officers asked 

if anybody was injured inside the apartment. After the female responded, Officer Griggs heard 

someone yell “[h]elp really loudly.” The officers entered the apartment, finding the victim in the 

bathroom, stating that he needed help and “they” would not let him leave.2 After speaking to the 

victim, the officers arrested defendant and Campbell for suspected aggravated assault, felonious 

assault, and possible kidnapping. The victim was transported to the hospital and remained 

hospitalized for his burns for three days. 

 

1 Campbell pleaded guilty to one count of torture.

2 While the officers were at the apartment, Officer Miller wore a body camera that captured the 

events as testified by Officer Griggs. The video footage from the body camera was played for the 

jury during trial with the exception of redacted sections containing the victim’s personal 

information. 
-3-

Before trial, defendant was offered a plea agreement, allowing defendant to have pleaded

to the torture charge with a sentence of 12 to 20 years’ imprisonment, with the dismissal of the 

remaining counts and fourth-offense habitual offender status. Defendant reviewed the victim’s 

medical records and photographs of the victim’s injuries that had been disclosed by the prosecutor, 

deciding to reject the plea offer. At trial, the victim testified that he did not have a weapon on his 

person, including a piece of brick, but that he had a lighter at some point during the incident; he 

did not argue with Gilson inside the apartment; and he was not under the influence of drugs at the 

time of the incident, but he had used drugs the morning of the incident. After defendant crossexamined the victim, the prosecutor sought to admit six photographs of the victim’s injuries taken 

at the hospital on the day of the incident. Defendant’s trial counsel objected to the admission, 

arguing “these photos have been in existence since the day they were taken on March 7th. There’s 

a discovery order . . . requiring a prompt turnover, uh, a mutual discovery of all these items[,] [and] 

I’m just getting these yesterday.” As a result, trial counsel argued it was “too late” and 

“prejudiced” defendant to admit the photographs now and without proper and timely disclosure. 

The trial court allowed the photographs to be admitted, stating:

Trial Counsel: . . . We need to have these in a timely fashion because it 

goes into all of the things that develop with a, a defendant’s rep—representation 

including the possibility of whether an appropriate plea is appropriate—

Trial Court: Counsel—

Trial Counsel: —for defendant.

Trial Court: —we’re way past that.

Trial Counsel: I know we’re way past that. We have to, we have to have 

them. We have to have—

Trial Court: Why?

Trial Counsel: —them early on. 

* * *

Trial Counsel: The photographs are gonna be an indication [of] this man’s 

injuries.

Trial Court: I know that.

Trial Counsel: Yes.

Trial Court: So what will they tell you about this trial. She wants to 

introduce them now.

Trial Counsel: Yeah. I’m saying it’s too late.

Trial Court: Overruled. You can bring the jury in. 
-4-

When the prosecutor resumed with redirect examination of the victim and introduction of the 

photographs, trial counsel objected and requested a voir dire examination. The victim testified 

that he had not seen the photographs before that day, prompting trial counsel’s restated objection 

because the victim had not seen the photographs before; however, the trial court overruled the 

objection and admitted the photographs. When redirect examination resumed, the victim testified

that the photographs showed the burn marks on his face, sections of his hair that had been cut, 

blood on his head, and injuries from the stick. 

Defendant elected to testify at trial, giving a different description of the incident. Before 

the incident, defendant stated he was at a nearby bar, when his daughter’s grandmother, Karen 

Puente, called him, asking to borrow some money. Defendant met Puente to give her money and 

then went to Gilson’s apartment to spend the night because he forgot his keys to his own house. 

About ten minutes later, defendant was sitting in the living room with about six other people when 

the victim, whom defendant recognized as “Robin” and a person that he had sold drugs to a couple 

times, arrived at the apartment with a female named Alexis. Defendant suspected the victim was 

“high on drugs because he was tweaking . . . like jittery [and] . . . blabbering. He couldn’t stand 

still.” Defendant observed the victim and Gilson get into an argument and then the victim “reached 

in his pocket and pulled out, uh, a half a brick and like kind of like threatened [Gilson] with it.” 

Because defendant thought the victim was going to throw or hit Gilson with the brick, defendant 

slammed the victim to the floor, punched him twice, and attempted to grab the brick from him. 

Defendant stated that Campbell took the brick from the victim and defendant “held the victim’s 

arms down for a minute and told him to go clean up.” At that point, the victim “willingly went to 

the bathroom.” Defendant heard the shower turn on, so he went to the bedroom to sleep. 

Defendant stated he was awoken by a police officer, telling him to come into the living room. 

Defendant denied approaching the victim on the street, demanding money from the victim, hitting 

the victim with a stick, removing the victim’s clothing, cutting the victim’s hair, and burning the 

victim’s face. 

During defendant’s cross-examination, a portion of defendant’s interrogation with police 

was played for the jury. In the interrogation, defendant stated that the victim owed money for a 

television and drugs but that he only physically restrained the victim and Campbell hit the victim 

with the stick. Defendant later admitted during the interrogation that he lied about being asleep at 

the time of the incident. At the end of the trial, the jury found defendant guilty of torture, unarmed 

robbery, unlawful imprisonment, AWIGBH, felonious assault, and assault and battery. Defendant 

was sentenced as delineated above. 

After sentencing, defendant filed a timely claim of appeal from the trial court’s judgment 

of sentence. With his appellate brief, defendant moved to remand to develop a claim of ineffective 

assistance of trial counsel, arguing trial counsel was ineffective for failing to obtain the 

photographs of the victim’s injuries before the deadline for defendant to accept a plea offer and 

failing to call Puente as a witness. Defendant also argued he was prejudiced by the prosecution’s 

withholding of the photographs of the victim’s injuries. This Court granted defendant’s motion to 

remand “to allow defendant to file a motion for the relief he deems appropriate and have an 

evidentiary hearing and decision whether defendant was denied effective assistance of counsel.” 

People v Canales, unpublished order of the Court of Appeals, entered June 18, 2020 (Docket No. 

350536). 
-5-

On remand to the trial court, defendant argued he was (a) denied due process when the 

prosecutor withheld the photographs of the victim’s injuries until the plea offer expired, (b) 

prejudiced by the prosecutor’s violation of the discovery order and the trial court’s failure to 

enforce the order, and (c) denied effective assistance of counsel for trial counsel’s failure to obtain 

the photographs before trial and not calling Puente as a witness. Because of the COVID-19 

pandemic, the trial court conducted the People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), 

hearing by Zoom technology, as authorized by the Michigan Supreme Court, without objection by 

any of the parties. Defendant’s trial counsel, John Holler, testified that on the first day of trial he 

received two photographs of the victim’s burn marks on his face allegedly from the incident. As 

a result, trial counsel stated that he objected to the photographs:

These were especially egregious to me, they were in violation, clear violation of the 

Court’s order of discovery. They were [a] surprise to the defendant and me, and I 

also made it clear, I thought, on the record that I needed to have these—this 

photograph and another to deal with my client and consult with my client in 

evaluating the plea offer.

* * *

Without question it just sabotaged my ability to properly and effectively represent 

[defendant] and consulting with him. 

However, trial counsel testified that timely disclosure of the photographs would not have made a 

difference in his trial strategy. As to calling Puente as a witness, trial counsel testified:

[S]he didn’t go inside the apartment building[,] she just went on her way. So[,] she 

was never a witness to any of the—to whatever happened inside the apartment 

building that [the victim] says is an assault against his person that resulted in these 

burns. . . . I reached out and tried to contact her through another person and didn’t 

get much response and then finally I told my—it appeared to me that even if you 

take everything that [defendant] is telling me was true then she would apply no 

value at all to his defense. 

The trial court denied defendant’s motion for a new trial, stating “there was no error on the part of 

[trial counsel] in his representation of [defendant].” The trial court concluded that trial counsel’s 

performance did not fall below the objective standard of reasonableness because (1) trial counsel 

appropriately determined that Puente provided no value to the defense because she was not a 

witness to the incident; (2) trial counsel’s inability to effectively negotiate a plea deal because of 

the late disclosure did not affect his trial strategy; and (3) trial counsel made a timely objection to 

the admission of the photographs. A written order memorializing the trial court’s ruling was 

entered the same day. 

Shortly thereafter, defendant again moved for remand, arguing the Michigan Department 

of Corrections (MDOC) sent two letters to the trial court after defendant’s sentencing that indicated

there were errors in the PSIR that needed to be corrected. Consequently, defendant contended that 

the trial court sentenced defendant, relying on the errors, under the mistaken idea that the 

mandatory 25-year sentence applied to all felony convictions, instead of only applying to the 
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AWIGBH conviction, and erroneously sentenced defendant to a term greater than the 15-year 

maximum for his felonious assault conviction because the letters were never mentioned. Because 

neither trial counsel nor appellate counsel recognized or addressed this issue, defendant also 

argued ineffective assistance of counsel on this basis. In response, plaintiff agreed that the PSIR 

incorrectly stated that the 25-year minimum sentence for a violent habitual offender, under MCL 

769.12(1)(a), applied to all felony convictions and that defendant’s felonious assault sentence was 

limited to not more than 15 years; and therefore, the trial court erred. However, plaintiff argued 

remand was not necessary because the sentencing issues could be corrected in this Court’s ultimate 

opinion on appeal. This Court denied defendant’s motion to remand “for failure to persuade the 

Court of the necessity of a remand at this time.” People v Canales, unpublished order of the Court 

of Appeals, entered on March 18, 2020 (Docket No. 350536). 

II. ANALYSIS

Defendant was not denied due process or prejudiced by the prosecutor’s failure to timely 

disclose photographs of the victim’s injuries until trial or the trial court’s failure to enforce the 

discovery order. Further, he was not denied effective assistance of counsel by trial counsel’s 

failure to ensure that defendant had the opportunity to review all of the discovery before deciding 

whether to accept the plea offer and failure to call Puente as a witness at trial. As a result, the trial 

court did not err in its findings of fact, leading this Court to deny the motion to remand in error. 

However, the trial court did make a mistake in law during defendant’s sentencing, although the 

failure to raise this error by trial counsel and appellate counsel only constituted ineffective 

assistance of counsel with regard to trial counsel. 

A. STANDARD OF REVIEW

A defendant’s constitutional questions, including due-process rights, are reviewed de novo. 

People v Borgne, 483 Mich 178, 184; 768 NW2d 290 (2009). This Court reviews “a trial court’s 

decision regarding the appropriate remedy for noncompliance with a discovery order for an abuse 

of discretion.” People v Davie, 225 Mich App 592, 597-598; 571 NW2d 229 (1997). Likewise, 

this Court reviews the trial court’s decisions regarding the information in a defendant’s PSIR for 

an abuse of discretion. People v Lampe, 327 Mich App 104, 120; 933 NW2d 314 (2019). An 

abuse of discretion occurs when the trial court’s decision falls outside the range of reasonable and 

principled outcomes. People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017). “Generally, 

‘a defendant is entitled to resentencing where a sentencing court fails to exercise its discretion 

because of a mistaken belief in the law.’ ” People v Sexton, 250 Mich App 211, 228; 646 NW2d 

875 (2002) (citation omitted). Additionally, a trial court abuses its discretion when the sentence 

imposed by the trial court is disproportionate to the seriousness of the circumstances involving the 

offense and the offender. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). If the trial 

court selects a sentence that falls within the range recommended under the advisory guidelines, 

that sentence is presumptively proportionate. Id. at 658. The reviewing court must affirm a 

sentence that falls within the recommended sentencing range absent an error in scoring or reliance 

on inaccurate information. People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 

(2016). 

In addition, the determination of whether a defendant has been deprived of the effective 

assistance of counsel presents a mixed question of fact and law. People v LeBlanc, 465 Mich 575, 
-7-

579; 640 NW2d 246 (2002). The trial court’s factual findings are reviewed for clear error, while 

its constitutional determinations are reviewed de novo. Id. “A trial court’s factual finding is 

clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial 

court made a mistake.” People v Wiley, 324 Mich App 130, 165; 919 NW2d 802 (2018) (quotation 

marks and citation omitted). “[T]he test for ineffective assistance of appellate counsel is the same 

as that applicable to a claim of ineffective assistance of trial counsel.” People v Uphaus, 278 Mich 

App 174, 186; 748 NW2d 899 (2008). “Hence, defendant must show that his appellate counsel’s 

decision not to raise a claim of ineffective assistance of trial counsel fell below an objective 

standard of reasonableness and prejudiced his appeal.” Id. However, when “claims of ineffective 

assistance of counsel are unpreserved, our review is limited to errors apparent on the record.” 

People v Unger, 278 Mich App 210, 253; 749 NW2d 272 (2008). 

B. DISCOVERY

Defendant argues he was denied due-process and prejudiced by the prosecutor’s untimely 

disclosure of photographs depicting the extent of the victim’s injuries until trial and the trial court’s 

failure to enforce the discovery order. We disagree. 

Unlike civil litigation, which primarily only limits discovery by the relevancy of the 

information sought and its likelihood to lead to the discovery of admissible evidence, “discovery 

in criminal cases is constrained by the limitations expressly set forth in the reciprocal criminal 

discovery rule promulgated by our Supreme Court, MCR 6.201.” People v Greenfield, 271 Mich 

App 442, 447; 722 NW2d 254 (2006). In fact, “our Supreme Court has plainly stated that MCR 

6.201 governs and defines the scope of criminal discovery in Michigan.” Id. “Under due process 

principles, the prosecution is obligated to disclose evidence that is both favorable to the defendant 

and material to the determination of guilt or punishment.” People v Fink, 456 Mich 449, 454; 574 

NW2d 28 (1998). Under MCR 6.201(H), the prosecution has a continuing duty to disclose 

“additional information or material subject to disclosure under this rule, without further request[.]” 

MCR 6.201(H). If the discovery requirements of MCR 6.201 have been violated, the trial court 

has discretion to fashion an appropriate remedy after balancing the interests of the court, the 

parties, and the public. Davie, 225 Mich App at 598. This balancing includes the consideration 

of the reasons for noncompliance and the resultant actual prejudice, if any. Id. “It requires inquiry 

into all the relevant circumstances, including the causes and bona fides of tardy, or total, 

noncompliance, and a showing by the objecting party of actual prejudice.” Id. (quotation marks 

and citation omitted). 

Defendant was not denied due-process by the prosecutor’s disclosure on the first day of 

trial of the photographs of the victim’s injuries. To support his argument, defendant primarily 

argues that the photographs were taken within a short time after the incident and, therefore, should 

have been timely disclosed before trial began. Specifically, defendant contends that if the 

prosecutor had timely disclosed the two photographs that emphasized the victim’s burn marks on 

his face, defendant would have accepted the plea offer before trial began. We also note that 

defendant’s claim of prejudice is solely argued regarding his plea negotiation and does not 

challenge the impact of the photographs regarding his conviction. A review of the record indicates 

that defendant did timely receive all but two photographs depicting the victim’s injuries but 

received the two photographs depicting the victim’s burn marks on the first day of trial. While it 
-8-

does appear that there was a delay in delivery to defendant of the two photographs in question, we 

do not conclude that such delay was intentional by the prosecutor or prejudicial to defendant. 

To start, there is no record that the prosecutor deliberately waited to disclose the 

photographs to defendant. Instead, the late disclosure was apparently caused within the police 

department by the evidence technician’s late delivery of the photographs to the officer-in-charge. 

In fact, we take defendant’s decision not to present any witnesses or evidence on remand to support 

his argument as an indication that the prosecutor timely disclosed the photographs to defendant. 

As a result, defendant has not supported his argument that the prosecutor purposefully violated the 

discovery order to infringe on defendant’s due-process rights. Davie, 225 Mich App at 598. 

Even to the extent the discovery order was violated, defendant has not established that the 

trial court’s decision to admit the photographs was an abuse of its discretion. In determining 

whether to admit the photographs at trial, the trial court heard and overruled defendant’s objection 

that he needed to have the photographs “in a timely fashion because it goes into all of the things 

that develop with a, a defendant’s rep—representation including the possibility of whether an 

appropriate plea is appropriate . . . for defendant.” While the trial court’s balancing of the interests 

is not thoroughly outlined in the record, its decision reasonably falls within its discretion. As 

stated, there is no record that the prosecutor deliberately failed to comply with the discovery order. 

As to actual prejudice to defendant, a review of the record indicates that defendant was aware of 

the extent of the victim’s injuries before the trial began, including the burn marks. Specifically, 

defendant received the victim’s medical records and reviewed all but two photographs showing 

the victim’s injuries, indicating scratches, bruises, missing hair, and the body camera footage from 

the night of the incident. With this information, defendant rejected the plea offer and maintained 

the defense that the victim caused his own injuries by using a “crack lighter.” In fact, trial counsel 

indicated the photographs would not “have made a difference in the strategy of trial[.]” 

Accordingly, the trial court’s finding that defendant did not establish actual prejudice from the 

prosecutor’s late disclosure is supported by the record. On this basis, we conclude that the trial 

court did not abuse its discretion, nor infringe on defendant’s due-process rights, in admitting the 

photographs of the victim’s injuries at trial over defendant’s objection. 

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues he was denied effective assistance of counsel by trial counsel’s 

failure to ensure that he had the opportunity to review all of the discovery before deciding whether 

to accept a plea offer and the failure to call Puente as a witness at trial. We disagree. 

Effective assistance of counsel is presumed and defendant bears a heavy burden to prove 

otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). To establish 

ineffective assistance of counsel, defendant must show that counsel’s performance fell below an 

objective standard of reasonableness, and that the representation so prejudiced defendant that he 

was denied the right to a fair trial. People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). 

To establish prejudice, defendant must show a reasonable probability that, but for counsel’s error, 

the result of the proceeding would have been different. People v Johnson, 451 Mich 115, 124; 545 

NW2d 637 (1996). Defendant must overcome the strong presumption that counsel’s actions 

constituted sound trial strategy under the circumstances. People v Toma, 462 Mich 281, 302; 613 

NW2d 694 (2000). 
-9-

Defendant was not denied effective assistance of counsel for trial counsel’s failure to 

ensure that all the photographs had been disclosed by the prosecutor before trial. “The failure to 

reasonably investigate a case can constitute ineffective assistance of counsel, but only when such 

failure undermines confidence in the trial’s outcome.” People v Anderson, 322 Mich App 622, 

630-631; 912 NW2d 607 (2018) (quotation marks and citation omitted). This Court “will not 

second-guess counsel on matters of trial strategy, nor will we assess counsel’s competence with 

the benefit of hindsight.” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). Defendant 

contends that trial counsel’s failure to ensure defendant had all of the discovery kept trial counsel 

from discovering the two photographs of the victim’s burn marks before trial; and if trial counsel 

had ensured defendant had all of the discovery, defendant would have accepted the plea offer 

before it expired. However, the record does not indicate whether trial counsel had any reason to 

believe that defendant did not already have all of the discovery at the time of trial. Rather, trial 

counsel indicated that he and defendant reviewed the victim’s medical records and the photographs 

of the victim’s injuries that had been disclosed before trial. Additionally, there is no record that 

the prosecution was aware of the two photographs depicting the victim’s burn marks until the first 

day of trial. Consequently, there is no evidence that trial counsel should have been aware of the 

existence of the photographs depicting the victim’s burn marks or failed to obtain any other 

discovery that existed before trial. Further, while we note trial counsel’s delay in objecting to the 

photographs by not moving to exclude the photographs on receipt of the prosecutor’s disclosure 

after the first day of trial, trial counsel did swiftly object to the admission of the photographs on 

the second day of trial. 

Even to the extent that trial counsel failed to ensure defendant had all of the discovery 

before trial, defendant has not established that the outcome would have been different had the 

photographs of the victim’s burn marks been discovered before the plea expired. Defendant 

contends that he would have accepted the plea offer if he had reviewed the photographs with the 

rest of discovery. However, because defendant had access to the victim’s medical records, 

photographs of the victim’s other injuries, and the victim’s statement regarding the incident, we 

are not persuaded that the two photographs of the victim’s burn marks would have unequivocally 

convinced defendant to accept the plea offer. Likewise, because of the cumulative nature of the 

photographs with the victim’s testimony and other photographs of the victim’s injuries, it is 

unlikely that the photographs of the victim’s burn marks were determinative of the jury’s verdict. 

Instead, defendant’s challenge to trial counsel’s performance appears to arise from his buyer’s 

remorse in rejecting the plea offer before trial rather than any actual error by trial counsel. As a 

result, we opine defendant was not denied the effective assistance of counsel for failing to ensure 

that the prosecutor had disclosed all of the discovery before trial. 

In addition, defendant was not denied effective assistance of counsel for trial counsel’s 

failure to call Puente as a witness. The decision whether to call or question witnesses is presumed 

to be a matter of trial strategy. People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). 

Further:

[A] claim of ineffective assistance of counsel premised on the failure to call 

witnesses is analyzed under the same standard as all other claims of ineffective 

assistance of counsel, i.e., 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 
-10-

have been different.” [People v Jurewicz, ___ Mich ___; 948 NW2d 448 (2020), 

quoting People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012), and citing 

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

To support his argument, defendant argues Puente should have been called as a witness at trial to 

corroborate some of defendant’s testimony regarding the incident. A review of the record 

establishes that trial counsel was aware of Puente; however, he did not pursue her as a witness 

because “she was never a witness to . . . whatever happened inside the apartment building[.]” On 

this basis, excluding Puente as a witness was not an objectively unreasonable decision because 

Puente’s testimony would not have assisted defendant’s defense or corroborated defendant’s claim 

that the victim caused his own injuries. People v Davis, 250 Mich App 357, 369; 649 NW2d 94 

(2002). 

To the extent that trial counsel failed to call Puente as an allegedly favorable witness for 

the defense, defendant has not established that the outcome of his trial would have been different 

had Puente testified. Defendant suggests that Puente would have corroborated his version of the 

events, including the time of his arrival at the apartment building before the victim arrived. 

However, defendant’s argument is speculative because Puente was not responsive to trial counsel’s 

attempts to contact her. Additionally, even Puente’s alleged testimony that she walked with 

defendant to the apartment building and watched him go inside, would not have conclusively 

established that defendant did not commit the acts alleged by the victim. On this basis, because 

Puente’s testimony would not have corroborated the events that occurred at the time of the incident, 

the decision to not call Puente as a witness was a matter of trial strategy. Regardless, defendant 

has not provided an affidavit of what Puente’s proposed testimony would have been at trial, making 

defendant’s corroboration argument purely speculative. People v Avant, 235 Mich App 499, 508; 

597 NW2d 864 (1999). Accordingly, defendant was not deprived of effective assistance of counsel 

because Puente’s testimony would not have supported defendant’s denial that the incident, as the 

victim testified, occurred. Instead, it is evident that trial counsel’s strategy was to focus on the 

victim’s drug use and credibility as a witness, which was reasonably persuasive given the 

prosecutor’s initial plea offer of a minimum sentence of 12 years’ imprisonment for the torture 

charge and dismissal of the remaining counts. As a result, we opine defendant was not denied the 

effective assistance of counsel for failing to call Puente as a witness.

D. REMAND

Defendant further argues the trial court erred in its findings of fact, which led this Court to 

deny the motion to remand in error. To support his argument, defendant contends the trial court 

only addressed whether trial counsel provided effective assistance at trial without discussing the 

prejudice that resulted from the prosecutor’s alleged violation of the discovery order. However, 

we note this Court’s order to remand was for the stated purpose to conduct “an evidentiary hearing 

and decision whether defendant was denied the effective assistance of counsel.” Canales, unpub 

order at 1. “When a case is remanded by an appellate court, proceedings on remand are limited to 

the scope of the remand order.” People v Canter, 197 Mich App 550, 567; 496 NW2d 336 (1992). 

As stated, “[a] trial court’s factual finding is clearly erroneous if the reviewing court is left with a 

definite and firm conviction that the trial court made a mistake.” Wiley, 324 Mich App at 165. 
-11-

At the Ginther hearing, defendant argued, in addition to ineffective assistance of counsel, 

that he was denied due process when the prosecutor withheld the photographs of the victim’s 

injuries until the plea offer expired, and was prejudiced by the prosecutor’s violation of the 

discovery order and the trial court’s failure to enforce the order. The trial court concluded that 

“based on the testimony and evidence there was no violation of [defendant’s] due process right on 

this record.” Moreover, defendant reviewed all of the discovery and was given time to consider 

whether to accept the plea offer before it expired. Notably, after the prosecutor disclosed the two 

additional photographs at trial, defendant did not express any desire to reconsider his decision to

reject the plea offer to the trial court or prosecutor. Rather, the only noticeable effect the 

photographs appeared to have on defendant was a request for an amended plea offer of 4 to 20 

years’ imprisonment, which was a significant reduction from the original 12 years’ imprisonment 

sentence. On this basis, we conclude that the trial court addressed the prosecutor’s disclosure of 

the photographs on remand, even if briefly, finding that the disclosure did not affect defendant’s 

due-process rights. As stated, defendant has not supported his argument that the prosecutor 

purposefully violated the discovery order, infringing on defendant’s due-process rights, nor did 

the trial court abuse its discretion or infringe on defendant’s due-process rights by admitting the 

photographs of the victim’s injuries at trial over defendant’s objection. Further, we note that the 

two photographs disclosed at trial were, at best, cumulative of the victim’s medical records and 

the previously disclosed photographs, indicating that defendant had all the relevant information 

available to him when he decided to reject the plea offer. Therefore, the trial court did not err in 

its findings of fact, which led this Court to deny the motion to remand. 

E. PSIR

Defendant argues the trial court erred in sentencing defendant, relying on the PSIR that 

inaccurately stated that the violent offender provision of the fourth-offense habitual offender 

statute had a 25-year mandatory minimum for all felony counts. We agree to the extent that remand 

is appropriate for the task of resentencing defendant under the correct and applicable statutes and 

amendment of the PSIR. Defendant also asserts trial counsel and appellate counsel were 

ineffective for failing to ascertain the trial court’s mistake of law at sentencing and to seek 

correction of this error. While trial counsel was ineffective at sentencing, appellate counsel noted 

the error and has sought correction. 

The PSIR “is an information-gathering tool for use by the sentencing court.” Lampe, 327 

Mich App at 120 (quotation marks and citation omitted). In addition to the trial court’s use of the 

PSIR at sentencing, the PSIR also follows a defendant to prison and can have ramifications related 

to security classification and parole. Id. The information in the PSIR “is presumed to be accurate, 

and the defendant has the burden of going forward with an effective challenge, but upon assertion 

of a challenge to the factual accuracy of information, a court has a duty to resolve the challenge.”

Id. (quotation marks and citation omitted). “If the court finds that challenged information is 

inaccurate or irrelevant, that finding must be made part of the record and the information must be 

corrected or stricken from the report.” Id. (quotation marks and citation omitted). 

The trial court erred in sentencing defendant, relying on the PSIR that inaccurately stated 

that the violent offender provision of the fourth-offense habitual offender statute had a 25-year 

mandatory minimum for all felony counts. A review of the record indicates that defendant was 

sentenced using a PSIR that deemed him to be a violent habitual offender, under MCL 
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769.12(1)(a). The statute requires that defendant be convicted of a “serious crime” to receive the 

mandatory minimum sentence of 25 years:

If the subsequent felony is a serious crime or a conspiracy to commit a serious 

crime, and 1 or more of the prior felony convictions are listed prior felonies, the 

court shall sentence the person to imprisonment for not less than 25 years. Not more 

than 1 conviction arising out of the same transaction shall be considered a prior 

felony conviction for the purposes of this subsection only. [MCL 769.12(1)(a).] 

A serious crime is defined by the statue as “an offense against a person in violation of section 83, 

84, 86, 88, 89, 317, 321, 349, 349a, 350, 397, 520b, 520c, 520d, 520g(1), 529, or 529a of the 

Michigan penal code[.]” MCL 769.12(6)(c). On this basis, the only crime that defendant was 

convicted of that qualified as a serious crime was his AWIGBH conviction, i.e., MCL 750.84. 

However, the PSIR broadly indicates that all of defendant’s convictions, except for assault and 

battery, were subject to the 25-year mandatory minimum sentence. Because this amounts to an 

incorrect statement of law, the PSIR requires correction to this effect and resentencing is required. 

Similarly, the trial court erred in sentencing defendant to 25 to 37-1⁄2 years’ imprisonment 

for his felonious assault conviction. Under MCL 769.12(1)(c):

If the subsequent felony is punishable upon a first conviction by imprisonment for 

a maximum term that is less than 5 years, the court, except as otherwise provided 

in this section or section 1 of chapter XI, may sentence the person to imprisonment 

for a maximum term of not more than 15 years. [MCL 769.12(1)(c).] 

The felonious assault statute states that “a person who assaults another person with . . . [a] 

dangerous weapon . . .is guilty of a felony punishable by imprisonment for not more than 4 

years[.]” MCL 750.82(1). On this basis, defendant’s maximum sentence for felonious assault 

could not be greater than 15 years’ imprisonment. However, the PSIR indicates that defendant 

was subject to a maximum sentence for this charge of 25 years. Because this also amounts to an 

incorrect statement of law, the PSIR requires correction to this effect and resentencing is 

necessitated. 

We note that the prosecution agreed with defendant’s argument that the PSIR required 

correction as stated above. Because the violent habitual offender statute was included in the PSIR 

as applying to all of defendant’s felony convictions and defendant’s maximum sentence for his 

felonious assault conviction exceeds the statutory maximum sentence, the PSIR is not accurate. 

Although the MDOC sent two letters to the trial court in an attempt to correct these errors, a review 

of the record does not indicate whether the trial court was aware of the errors in the PSIR or the 

letters. In fact, we suspect the trial court only first became aware of the errors when briefly 

addressed at the Ginther hearing:

Appellate Counsel: I did have one other area that I forgot to address on 

direct. I don’t know if the Court minds me doing this. Subsequent to the 

representation, have you received copies of letters from the [Department] of 

Correction[s] regarding Mr. Canales sentence?
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Trial Counsel: Yeah, I have. There’s a—there was—they sent a letter to 

the Judge saying the judgment of sentence needed to be corrected. It doesn’t affect 

his overall length of sentence, but there’s some errors on it that need to be corrected 

and I thought that Judge Callahan or someone was going to do that sua sponte but 

it doesn’t appear like it. And I followed up with the Department of Corrections. I 

never filed a motion to correct the judgment, but yes I did. And it looks like it’s 

never been done. 

On this basis, remand is appropriate for the task of correcting the PSIR to omit the violent offender 

provision of the fourth-offense habitual offender statute for all of defendant’s felony convictions, 

except AWIGBH, and to correct the maximum sentence for defendant’s felonious assault 

conviction. 

Further, resentencing is also appropriate to determine whether the trial court’s sentence 

was grounded on an accurate recitation of the statutes. As stated, it is unclear whether the trial 

court was under the impression that the 25-year minimum sentence, under MCL 769.12(1)(a), 

applied to all the felony convictions or only AWIGBH. At sentencing, trial counsel requested a 

minimum sentence of 25 years, stating “I think that the 25 years minimum itself I think is more 

appropriate for a case like this.” The trial court proceeded to sentence defendant to “the minimum 

of 25 years” for felonious assault, AWIGBH, unlawful imprisonment, and unarmed robbery. On 

this basis, it would appear that the trial court sentenced defendant to a 25-year minimum sentence 

for these felony convictions in conjunction with the violent offender provision of the fourthoffense habitual offender statute, which, as stated above, constitutes a misapplication of the law. 

Therefore, remand is also appropriate for the task of resentencing defendant under the correct and 

applicable statutes highlighted above. 

In addition, defendant argues he was denied effective assistance of counsel for the failure 

of trial counsel and appellate counsel to identify or raise the errors in the PSIR. We agree to the 

extent that trial counsel was ineffective but disagree in regard to appellate counsel. 

To start, we note that a claim of ineffective assistance of counsel must be raised below in 

a motion for a new trial or an evidentiary hearing under Ginther. People v Snider, 239 Mich App 

393, 423; 608 NW2d 502 (2000). However, because defendant argued for the first time on appeal 

that he was denied effective assistance of counsel for trial counsel’s and appellate counsel’s failure 

to discover the error in the PSIR, this issue is unpreserved for appellate review, limiting our review 

to “errors apparent on the record.” Unger, 278 Mich App at 253. 

“The Court uses the same legal standard for ineffective assistance of counsel when 

scrutinizing the performance of trial counsel and appellate counsel.” People v Lopez, 305 Mich 

App 686, 693; 854 NW2d 205 (2014). As stated, effective assistance of counsel is presumed and 

defendant bears a heavy burden to prove otherwise. Rockey, 237 Mich App at 76. To establish 

ineffective assistance of counsel, defendant must show that counsel’s performance fell below an 

objective standard of reasonableness, and that the representation so prejudiced defendant that he 

was denied the right to a fair trial. Pickens, 446 Mich at 338. To establish prejudice, defendant 

must show a reasonable probability that, but for counsel’s error, the result of the proceeding would 

have been different. Johnson, 451 Mich at 124. Defendant must overcome the strong presumption 
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that counsel’s actions constituted sound trial strategy under the circumstances. Toma, 462 Mich 

at 302. 

Defendant was denied effective assistance of counsel for trial counsel’s failure to recognize 

and address the errors in the PSIR at sentencing. We agree with defendant that trial counsel should 

have discovered the errors in the PSIR. At sentencing, trial counsel explicitly stated that he had 

reviewed the PSIR, and indicated that the violent offender habitual provision of the fourth-offense 

habitual offender statute was applied correctly. As a result of trial counsel’s failure, defendant was 

prejudiced because he was sentenced using an inaccurate PSIR, which the trial court appeared to 

rely on, involving a mistake of law. Therefore, defendant was denied effective assistance by trial 

counsel’s failure to recognize and address the errors in the PSIR. 

Conversely, defendant was not denied effective assistance of counsel for appellate 

counsel’s failure to raise the errors in the PSIR. A review of the record indicates that appellate 

counsel did identify the errors in the PSIR and, at a minimum, attempted to raise the issue at the 

Ginther hearing when questioning trial counsel as highlighted above. Because appellate counsel 

recognized the errors in the PSIR and is actively seeking remand and resentencing to correct the 

errors in defendant’s sentencing, we opine that appellate counsel has provided effective assistance 

of counsel at this time. 

III. CONCLUSION

Remanded to the extent necessary to correct the PSIR and to resentence defendant under 

the correct and applicable statutes. We do not retain jurisdiction. 

/s/ Jonathan Tukel

/s/ David H. Sawyer

/s/ Thomas C. Cameron