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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 19, 2016

v No. 326007
Berrien Circuit Court DEMON TRUMEL THOMPSON, LC No. 2013-004592-FC

Defendant-Appellant.

Before: O’B RIEN , P.J., and K. F. K ELLY and F ORT H OOD , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of as sault with intent to do great bodily harm less than murder (“AWIGBH”), MCL 750.84; felon in p ossession of a firearm (“felon-in-possession”), MCL 750.2 24f; assault with a dangerous weapon (“felonious assault”), MCL 750.82; and possession of a firearm during the commission o f a felony (“felony-firearm”), MCL 750.227b. The jury acquitted defendant of armed robbery, M CL 750.259, and carrying a concealed weapon (“CCW”), MCL 750.227(2). The trial court sent enced defendant as a fourthoffense habitual offender, MCL 769.12, to 25 to 40 years’ impri sonment for AWIGBH, 6 to 10 years’ imprisonment for felon-in-possession, two years’ impriso nment for felony-firearm, and 30 to 48 months’ imprisonment for felonious assault. We affirm.

Defendant first argues that the trial court erred in denying h is motion for a new trial, after

a Ginther 1 hearing, on the grounds of ineffective as sistance of counsel d uring the plea -bargaining process. We disagree. “Whether a person has been denied effec tive assistance of counsel is a mixed question of fact and constitutional law.” People v Jordan , 275 Mich App 659, 667; 739 NW2d 706 (2007) (citation omitted). “Findings on questions of fact are reviewed for clear error, while rulings on questions of constitutional law are reviewed d e novo.” Id . “A finding is clearly erroneous when, although there is evidence to support it, the r eviewing court, on the whole record, is left with a definite and firm conviction that a mist ake has been made.” People v

Barbarich , 291 Mich App 468, 471; 807 NW2d 56 (2011) (citation omitted).

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-2- “To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reas onableness under prevailing professional norms and that this performance caused him or her prejudice.” People v Nix , 301 Mich App 195, 207; 836 NW2d 224 (2013), citing People v Armstrong , 490 Mich 281, 289-290; 806 NW2d 676 (2011). “To demonstrate prejudice, a defendant mu st show the probability that, but for counsel’s errors, the result of the proceedings would h ave been different.” Nix , 301 Mich App at 207. “[A] defendant is enti tled to the effective assista nce of counsel in the pleabargaining process.” People v Douglas , 496 Mich 557, 591–592; 852 NW2d 587 (2014). In
order for a defendant to make a successful ineffective assistan ce claim in this context, he must still meet the two-pronged ineffective assistance standard, and in order to demonstrate prejudice the “defendant must show the outcome of the plea process would have been different with competent advice.” Id . at 592 (citation omitted). If the prejudice occurred when a defendant rejected the plea o ffer and stood trial,

a defendant must show that but f or the ineffective advice of co unsel there is a reasonable probability that the plea offer would have been pres ented to the court ( i.e. , that the defendant would have accepted the plea and the prose cution would not have withdrawn it in light o f intervening circumstances), t hat the court would have accepted its terms, and that the conviction or sentence, o r both, under the offer’s terms would have been less severe than under the judgme nt and sentence that in fact were imposed. [ Id . (citation and quotation marks omitted).]

At the Ginther hearing, defendant’s trial counsel testified that he failed to inform defendant that, due to defendant’s prior criminal record, a con viction for AWIGBH carried a mandatory minimum sentence of 2 5 years’ imprisonment. See MCL 769.12. Defendant testified that he believed that this mandatory sentence would only apply to a conviction for armed robbery. The prosecution’s fina l plea offer was to recommend a minimum sentence of 10 years and 6 months in exchange for a guilty plea to armed robbery. D efendant argues that, had he known the potential 25-year minimum sentence for AWIGBH, he wou ld have accepted this offer. The trial court found that trial counsel’s representati on fell below objective standards of reasonableness. The trial court denied defendant’s motion, how ever, because it found that there was not a reasonable probability that, had defendant known the sentence he faced for AWIGBH, he would have accepted the prosecution’s offer.

The prosecution does not argue, and there is no indication in the record to suggest, that the prosecution would have withdrawn the plea, that the plea wo uld not have been accepted by the trial court, or that the plea’s terms were not more favorab le than the sentence defendant received after trial. Thus, t he only question remaining is whe ther defendant would have accepted the plea but for counsel’s deficient representation. Id. at 591-592. Defendant testified that he would have accepted the plea offer had he been aware that the p unishment for AWIGBH in his case was a minimum of 25 years’ imprisonment. The trial court found defendant’s testimony to
that effect incredible. This f inding was supported by the reco rd. Trial counsel testified that
before trial defendant maintained that he had not robbed the vi ctim; indeed, defendant testified consistently with that account at trial and the Ginther hearing. Counsel testified that one of the “deal breakers” with the prosecution’s final plea offer was tha t defendant did not want to plead guilty to a crime he did not commit, i.e. , armed robbery, regardless of the offered minimum sentence. No plea to any other charge was offered. The other “deal breaker” was that defendant-3- serve a minimum of eight years, and the prosecutor never offere d less than 10 years and 6 months. Defendant was also clearly aware that he faced a possi ble life sentence, with a 25-year mandatory minimum sentence, if he went to trial. The trial cou rt explicitly informed defendant as such when questioning whether he wished to reject the plea o ffer. Beyond defendant’s testimony, there was no evidence that he would have accepted th e plea offer had he been informed of the applicable minimum sentence for AWIGBH and, “re gard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). Given our deference to the trial co urt’s credibility finding, and the evidence that supports that finding, we are not left with a def inite and firm conviction that the trial court erred in finding tha t defendant failed to establish that, but for trial counsel’s deficient performance, he would have accepted the prosecution’s final ple a offer. Barbarich , 291 Mich App at 471. In the absence of such clear error, the trial cour t did not err in denying defendant relief on the grounds of ineffective assistance of counsel in t he plea-bargaining process. Jordan

, 275 Mich App at 667.

Defendant next argues that evidence of the victim’s prior conv iction for CCW should have been admitted, and that counsel was ineffective for assent ing to the trial court’s ruling on the issue and failing to further seek admission. We disagree. Defendant’s primary evidentiary argument was waived by his counsel’s express agreement to the t rial court’s ruling on this issue.

See People v Kowalski , 489 Mich 488, 503; 803 NW2d 200 (2011). Instead of introduci ng evidence of the victim’s prior c onviction, counsel agreed to as k the victim whether he was allowed to carry a weapon. Thus , this issue was waived.

Additionally, counsel was not ineffective for assenting to the trial court’s ruling, or failing to further attempt to introduce evidence of the victim’ s prior conviction, because any
effort to do so would have been futile. See People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010). Our review of this unpreserved claim is limit ed to errors apparent on the
record. Jordan , 275 Mich App at 667.

Generally, the admission of evidence of a prior conviction for purposes of impeaching a witness is governed by MRE 609. However, defendant does not ar gue that evidence of the
victim’s conviction for CCW coul d have been introduced under th at rule. Rather, defendant cites People v Taylor , 422 Mich 407, 414; 373 NW2d 579 (1985), wherein the Supreme C ourt noted that, “MRE 609 was not intended to apply where evidence of prio r convictions is offered to rebut specific statements of the defendant who testifies at trial.” Here, Taylor does not apply because the victim’s CCW conviction would not have rebutted any specifi c statement made at trial. The victim testified, “I never had a gun.” Read in context, the vi ctim clearly meant that he did not have a gun during the altercati on giving rise to this case, not that he had never carried a gun in his life. Accordingly, we re ject defendant’s claim.

Defendant next argues that the trial court abused its discret ion in denying his motion for a mistrial after law enforcement personnel testified that a par ole officer helped search the crime
scene and that an address for de fendant was obtained from “MDOC .” We disagree. “We review for an abuse of discretion a trial court’s decision regarding a motion for a mistrial.” People v
Schaw , 288 Mich App 231, 236; 791 NW2d 743 (2010). A trial court sh ould grant a mistrial “only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial.” Id . Generally, an unresponsive or volunteered answer is insuffic ient grounds for-4- granting a mistrial; however, such remarks, when made by law en forcement personnel, are subject to scrutiny. People v Holly , 129 Mich App 405, 415-416; 341 NW2d 823 (1983). “Police witnesses have a speci al obligation not to venture into such forbidden areas.” Id

.

The trial court did not abuse its discretion in denying defend ant’s motion for a mistrial because defendant suffered no prejudice from the challenged tes timony. Although there was testimony that a parole officer helped search the scene of the shooting, there was no indication that this individual was defendant’s parole officer. Also, eve n if the jury knew that “MDOC” referred to the Michigan Depart ment of Corrections, any prejudi cial effect was mitigated by the stipulated fact that defendant was a convicted felon and, there fore, presumably known to the MDOC. Thus, despite the fact that the challenged testimony cam e from law enforcement personnel, it was insufficient to require a mistrial under the circumstances. See People v Von

Everett , 156 Mich App 615, 622-623; 402 NW2d 773 (1986). Accordingly, the trial court did
not abuse its discreti on in denying defendant ’s motion for a mi strial.

Lastly, defendant argues that he was deprived of the effective assistance of counsel due to trial counsel’s argument that defendant did not go to the polic e with his story of self-defense because he had absconded from parole. Our review of this unpre served claim is limited to errors apparent on the record. Jordan , 275 Mich App at 667.

Defendant has failed to establish that his trial counsel’s eli citation of testimony regarding defendant absconding from parole, and reliance thereon in closi ng, was not a reasonable exercise of trial strategy that we will not be second guess on appeal. People v Horn , 279 Mich App 31, 39; 755 NW2d 212 (2008). The pro secution questioned why defend ant would not have gone to the police if, as he testified, the victim had attacked him wit h a gun and defendant had only acted
in self-defense. Counsel elicited a reason for defendant’s fai lure to go to the police, i.e. , that he had absconded from parole. The fact that counsel’s strategy di d not result in a full acquittal does
not render it ineffective. See People v Petri , 279 Mich App 407, 412; 760 NW2d 882 (2008). Accordingly, defendant has failed to meet his burden of establi shing that trial counsel’s performance fell below an objectiv e standard of reasonableness.

In reaching our conclusion, we note that even if trial counsel ’s performance was deficient in this respect, defendant cannot establish that, but for couns el’s allegedly deficient performance, there was a reasonable probability that the outcome of the tria l would have been different. The jury was aware that defendant was a convicted felon. At trial, defendant also testified that he was an active drug dealer. The additional criminal activity re vealed by defendant’s status as a parole absconder was insufficient to undermine our confidence i n the jury’s verdict and, therefore, defendant is not entitled to relief.

Affirmed.

/s/ Colleen A. O’Brien /s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood