### -1- 

## STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee, UNPUBLISHED May 28, 2015

v No. 320328 Jackson Circuit Court JERRY LEE WATSON, LC No. 12-004730-FH
Defendant-Appellant.

Before: B OONSTRA 

### , P.J., and S AAD 

### and M URRAY 

### , JJ.

P ER 

### C URIAM



### . Defendant appeals his jury trial convictions of: (1) first-deg ree home invasion, MCL 750.110a(2); (2) two counts of assault with a dangerous weapon (felonious assault), MCL 750.82; and (3) possession of a firearm during the commission o f a felony (felony-firearm), MCL 750.227b(1). For the reasons stated below, we remand for an evidentiary hearing on the sole issue of whether defendant’s trial attorney gave him ineff ective assistance during plea negotiations.

I. FACTS AND PROCEDURAL HISTORY
Highly intoxicated and armed with a handgun, defendant went to his ex-wife’s apartment, shot the front door and broke in, while his ex-wife, former sis ter-in-law, and son took refuge in the bedroom. Once inside, defendant pointed the gun at both hi s former sister-in-law and exwife, but his son stepped in fro nt of defendant’s ex-wife to sh ield her. The son and his aunt were able to wrest the firearm away f rom defendant after a physical struggle, and a neighbor, who was armed and had heard gunshots, came over to help control defendant until the police arrived.
The prosecution charged defendant with (1) first-degree home i nvasion, MCL 750.110a(2); (2) three counts of felonious assault, MCL 750.82; and (3) felony-firearm, MCL 750.227b(1). At trial, the jury heard testimony from, among others, defendant, his son, his exwife, and his former sister-in-law, all of whom corroborated th e charges against defendant. During his testimony, defendant denied pointing the gun at anyo ne, and stated that he did not intend to physically injure his former family members. Instead , he claimed that he invaded his ex-wife’s apartment so that he could commit suicide in front of her. The jury rejected his story and convicted defendant of all ch arges, except for the count of felonious assault against defendant’s son.

### -2- On appeal, defendant claims that trial counsel gave him ineffe ctive assistance for multiple reasons that are addressed in detail below. 1



### II. STANDARD OF REVIEW
The question of whether defense counsel rendered effective ass istance is a mixed question of fact and law. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). The trial court’s findings of fact are reviewed for clear error, wh ile its conclusions on questions of law are reviewed de novo. Id

.
III. ANALYSIS
Effective assistance of counsel is presumed, and defendant bea rs the burden of showing otherwise. People v LeBlanc , 465 Mich 575, 578; 640 NW2d 246 (2002). To demonstrate ineffective assistance of counsel, a defendant “must establish that ‘counsel’s representation fell below an objective standard of reasonableness’ and that ‘there is a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proc eeding would have been different.’ ” People v Vaughn , 491 Mich 642, 669; 821 NW2d 288 (2012), quoting Strickland v Washington
, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Co unsel cannot be held ineffective for failure to make a meritless argument or a futil e objection. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). “Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matter s of trial strategy, and [our] Court will not substitute its judgment for that of counsel regarding matters of trial strategy.” People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002).
Here, defendant claims that his trial attorney provided him in effective assistance because the attorney did not: (1) properl y advise him on a potential pl ea deal; (2) present possible defenses; and (3) object to the trial court’s supposedly improp er scoring of Offense Variable (OV) 13. The prosecution asks that we uphold the ruling of the trial court, but also requests that we remand the matter of the plea bargain to the trial court, so that it may hold an evidentiary hearing to allow defendant to de velop his claim that his attorn ey gave him ineffective assistance during the plea negotiations.

A. PLEA BARGAIN

1 

### After he brought this appeal, defendant asked our Court to rem and his case to the Jackson Circuit Court for an evidentiary hearing to develop his claim f or ineffective assistance of counsel, pursuant to People v Ginther , 390 Mich 436; 212 NW2d 922 (1973). Our Court denied the motion. People v Watson , unpublished order of the Court of Appeals, entered September 22, 2014 (Docket No. 320328). On rec onsideration, our Court permitted defendant to ask this panel to remand his case for an evidentiary hearing to develop his cl aim for ineffective assistance of counsel. People v Watson , unpublished order of the Court of Appeals, entered November 2 6, 2014 (Docket No. 320328).

### -3- Again, to demonstrate ineffec tive assistance of counsel, a def endant must show that: (1) counsel’s representation fell be low an objective standard of re asonableness; and (2) that, but for counsel’s unprofessional errors, the result of the proceeding w ould have been different. Vaughn
, 491 Mich at 669 (citation omitted). “The defendant has the bur den of establishing the factual predicate of his ineffective assistance claim.” People v Douglas , 496 Mich 557, 592; 852 NW2d 587 (2014). When a defendant claims that his counsel’s ineffec tive assistance caused him to reject a plea bargai n, he must show that

but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withd rawn it in light of intervening circumstances), that the court would have accept ed its terms, and that the conviction or sentence, or both, under the offer's ter ms would have been less severe than under the judgment and sentence that in fact w ere imposed. [ Douglas , 496 Mich at 592, quoting Lafler v Cooper , 132 S Ct 1376, 1385; 182 L Ed 2d 398 (2012).]
Here, defendant claims that his attorney misinformed him of th e consequences of a proposed plea agreement. Specifically, defendant says the pros ecution would have allowed him to plead guilty to first-degree home invasion and one count of felonious assault, in exchange for the elimination of the charges of felony-firearm and two other counts of felonious assault. Counsel, according to defendant, advised him against the plea o ffer, because it would ensure a 6 to 8 year prison sentence. Defe ndant also alleges that his att orney did not tell him that if he went to trial and was convicted as charged, he would serve a mandato ry two-year consecutive prison term for felony firearm.
To put it mildly, there is reason to doubt defendant’s version of events. In its brief on appeal, the prosecution asserts that it never offered defendant a plea bargain. Moreover, the two other individuals present duri ng defendant’s conversation with his trial attorney about the supposed plea bargain have a rad ically different recollection o f the conversation. Charles Richmond, a friend of defendant, stated that counsel advised de fendant that going to trial would place him at risk of a higher sentence because of changes in th e scoring of the sentencing guidelines, and raise the possib ility of a mandatory two-year s entence for the felony-firearm offense. 2 

### The letter accompanying Richmond’s corrected affidavit, signe d by defendant’s trial attorney, also states that defendant rejected the plea bargain because he did not want to serve any time in prison.
Because of the unusual factual circumstances surrounding the p lea bargain in this case, and because both parties request an evidentiary hearing to deve lop a factual record on this

2 

### Though Richmond initially signed an affidavit—prepared by defe ndant—that supported defendant’s recollection of the p lea-bargain discussion, Richmo nd subsequently submitted a revised affidavit that “clarifie d” his earlier assertions so th at they no longer comported with defendant’s.

### -4- matter, we remand for an evidentiary hearing, limited to the so le issue of whether defendant’s attorney gave him effective assi stance during the plea negotiat ions.

B. OTHER ISSUES
Defendant also argues that his trial attorney gave him ineffec tive assistance when the attorney did not: (1) object t o alleged jury misconduct; (2) ca ll certain character witnesses defendant included on his witness list; (3) submit a diagram of his ex-wife’s apartment; (4) pursue an insanity defense; and (5) object when the trial court counted a for-cause disqualification as one of defendant’s peremptory challenges.

These claims are both frivolous and unsupported. 3 

### The only claims that warrant extended discussion are those involving de fendant’s witness list and the disqualification of a juror. Defendant has provided nothing to indicate how these witnesses would have testified, or why their testimony would have been c onsidered credible or relevant . Without this information, it is impossible for defendant to show that his trial attorney’s perf ormance “fell below an objective standard of reasonableness” for not calling the witnesses, or that the outcome of his trial would have been different had counsel called the witnesses. Vaughn , 491 Mich at 669 (citation omitted). Nor has defendant explained how trial counsel’s deci sion to not call these witnesses was not “sound trial strategy.” Davis , 250 Mich App at 368.
In a similar vein, defendant fails to provide citation to the incident when the trial court supposedly erred in labeling a juror that was removed for cause as being removed from one of defendant’s peremptory challenges. “An appellant may not merel y announce his position and leave it to this Court to discover and rationalize the basis fo r his claims . . . .” People v

3 

### For instance, defendant’s ass ertion of “jury misconduct” invol ves a supposed brief exchange between his ex-wife and former sister-in-law, and two members o f the jury. Assuming that the exchange actually occurred, trial counsel may have felt, as a m atter of strategy, that it was not wise to alert the trial court to an innocuous greeting between the victims and two jurors. Needless to say, defendant has failed to show that counsel’s pe rformance “fell below an objective standard of reasonableness,” much less that the outco me of his trial would have been different had counsel objected to this alleged instance of “jur y misconduct.” Vaughn , 491 Mich at 669 (citation omitted). Equally absurd is defendant’s cla im that his trial attorney sho uld have investigated defendant’s mental health and called expert witnesses to testify that defen dant suffers from insanity. Defendant does not identify which witnesses would have testifie d or include any affidavits from them, much less present any evidence that an insanity defense w ould have been viable. See Id

. Furthermore, because defendant was voluntarily under the influe nce of alcohol at the time of the incident, it is unlikely he coul d pursue or support an insanitydefense. Likewise, defendant fails to expl ain how a diagram of his ex-wi fe’s apartment would have created a “reasonable probability” of acquittal, or how the fac t that his attorney did not submit such a diagram “fell below an obj ective standard” of performanc e. Id

.

### -5- Matuszak , 263 Mich App 42, 59; 687 NW2d 342 (2004) (citation and quotation marks omitted). 4 

### Nor has defendant demonstrated that counsel’s decision not to o bject to this supposed error affected the outcome of his proceedings. Vaughn , 491 Mich at 669 (citation omitted).

3. OV 13
MCL 777.43(1) states that OV 13 addresses a “continuing patter n of criminal behavior.” A court may score 25 points under the offense variable when “th e offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(c). When it determines the appropriate score under the offense vari able, a court may consider “all crimes within a 5-year period, including the sentencing offense . . . regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a). See also People v Francisco , 474 Mich 82, 86–87; 711 NW2d 44 (2006).
Here, the trial court properly scored 25 points against defend ant pursuant to MCL 777.43(1)(c), on the basis of his three concurrent convictions for crimes against a person (the home invasion and two felonious assaults). 5 

### See People v Harmon , 248 Mich App 522, 532; 640 NW2d 314 (2001) (holding that four concurrent convictions, aris ing out of a series of incidents in a single day, permitted the trial court to score OV 13 at 25 points). Because the trial court did not err when it scored 25 point s against defendant under OV 13, his trial counsel did not render ineffective assistance. See Ericksen , 288 Mich App at 201.

IV. CONCLUSION
Accordingly, we remand for an evidentiary hearing, limited to the sole issue of whether defendant’s attorney gave him effective assistance during the p lea negotiations. Defendant’s remaining claims for ineffective assistance of counsel are friv olous, and the trial court is not permitted to consider them during the evidentiary hearing. We retain jurisdiction.

/s/ Mark T. Boonstra /s/ Henry William Saad /s/ Christopher M. Murray

4 

### In any event, the record contains no indication that defendantwas deprived of his peremptory challenges—he was entitled to five challenges, and he received five challenges. MCR 6.412(E)(1).

5 

### See People v Jackson , 291 Mich App 644, 649; 805 NW2d 463 (2011), abrogated in parton other grounds by People v Bonilla-Machado , 489 Mich 412 (2011) and People v Pearson , 490 Mich 984 (2012) (“[a] home invasio n is a crime against a person ”).

### Court of Appeals, State of Michigan



### ORDER

People of th e S tate of Michigan v J e rry Lee Wat so n

Docket No

. 320328

LC No. 12- 004730 -FH M ark T. Boonstra Presiding Jud ge

Hen ry William Saad

C hr i s topher M. Murra y

Judge s

Pursuant t o the o pini o n i ss u ed co n c urre ntl y with thi s ord e r , th i s case i s REMANDED fo r further pro ceed in gs co n s i s tent wi th th e opin io n o f thi s Co urt. We reta in jurisdiction.

Proceedings o n remand in thi s m a tte r s hall commence w ithi n 28 days of the C l erk's certification of this o rd er , a nd th ey s h a ll b e g iven prior ity o n remand until they are co nclud ed. As s tated in the acco mp a ny in g op ini o n , we r e m a nd for h o lding of an evidentiary h ea ri ng pu r s u a nt to 

### People v Gin th er, 390 Mich 436; 2 1 2 N W 2d ( 1 973) that wi ll develop the factual rec o rd o n the advice g ive n b y defendant ' s trial atto rne y o n th e ple a bar ga in th a t was purp o rtedl y offered to defendant. T he proceedin gs on remand a r e limited t o thi s i ss ue alone
, because de fe nd a nt 's cl a im s o n a ll o th e r matter s, includin g hi s ot h e r cla im s fo r in e ff ec tiv e ass i s tanc e o f coun s el
, are frivolous and h ave b ee n re jecte d in the accompanying opin i o n

.

T he part ies s h a ll pr o mptl y file w ith this Court a copy of al l pape r s filed o n remand. Within s e ven days after e nt ry, a pp e llant s h a ll fil e with thi s Co urt copies of a ll orders entere d on r eman d.

T h e transcript of al l proceed in gs o n r emand s hall be prepared and filed w ithin 2 1 days after complet ion of the p r ocee din gs.



# MAY 2 8 2015

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