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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 23, 2017

v No. 330346 Muskegon Circuit Court SHAUN ROBERT SALMINEN, LC No. 15-066265-FH

Defendant-Appellant.

Before: B ORRELLO , P.J., and M ARKEY and M. J. K ELLY , JJ.

P ER C URIAM

. Defendant, Shaun Salminen, appeals as of right his jury trial conviction of prisoner in possession of contraband, MCL 800.281(4). Salminen was sentenc ed as a third-offense habitual offender, MCL 769.11, to 18 months’ to 10 years’ imprisonment. Because there are no errors warranting relief, we affirm.

I. BASIC FACTS

Salminen was incarcerated at the Earnest C. Brooks Correctiona l Facility in Muskegon, Michigan. On March 21, 2015, a corrections officer was observi ng the prisoners as they were participating in outdoor activitie s. In particular, he was wat ching a prisoner that was suspected of bringing drugs into the prison. He testified that he observ ed that prisoner put his hand into his pocket, pull his hand out, and then shake hands with Salminen, who then put his hand in his pocket and walked away. The corrections officer approached Sal minen. After a pat-down search, he asked Salminen to empty his pockets. Salminen compl ied, and a single piece of folded paper fell from his ha nd to the ground. A ccording to th e corrections officer, Salminen put his foot over the paper, but moved it when asked. The officer retrieved the paper, which contained a green, leafy substan ce that the officer believed wa s marijuana. After testing by the Michigan State Police crime la b, the substance was identified a s 0.13 grams of marijuana.

At trial, Salminen acknowledged that he had talked to the pris oner suspected of bringing drugs into the prison, but he sai d that he did not receive anyt hing from him. He explained that he was just talking to another pris oner when he saw a couple of co rrections officers exit the building with blue gloves on. He said tha t one of the officers approach ed him and asked to pat him down. He complied. Then, when he was asked to empty his pockets, fou r or six pieces of paper fell out of his pocket and he bent down to pick them up. Salminen testi fied that he did not put his foot over any of the paper and that he did not intentionally step on the paper that the corrections-2- officer later found under his foot. Salminen also denied that the paper—and the marijuana in it—had come from his pocket. H e explained that several prisone rs had walked by the area where he was patted down and that when the prisoners see corrections officers wearing blue gloves, they start throwing stuff because the prisoners know that the o fficers will pat someone down looking for contraband.

II. SUBSTITUTE LAWYER

A. STANDARD OF REVIEW

Salminen first argues that the trial court erred by refusing h is request for a substitute trial lawyer. “A trial court’s deci sion regarding substitution of co unsel will not be disturbed absent an abuse of discretion.” People v Traylor , 245 Mich App 460, 462; 628 NW2d 120 (2001). An abuse of discretion “occurs when the court chooses an outcome t hat falls outside the range of principled outcomes.” People v Douglas , 496 Mich 557, 565; 852 NW 2d 587 (2014) (quotation marks and citation omitted).

B. ANALYSIS

Before voir dire, Salminen asked the trial court to appoint hi m a new lawyer. He asserted that his lawyer had not visited him at the prison and did not g ive him a discovery packet until “last week.” He further asserted that when they did talk his l awyer would not do the things that he asked him to do. He added that he felt like his lawyer was “railroading” for the prosecution. The trial court asked Salminen’s lawyer if he had anything to s ay. Salminen’s lawyer responded that he had not seen Salminen at the prison. He explained that the conversations they had at the pretrial and at the pretrial settlement conference were “animat ed” and that they “deteriorated into argumentative stuff.” He added that he had thought he sent the discovery materials earlier, but made clear that he had sent everything he had the previous week . He also stated that the case was not complicated and that, in his opinion, some of the thing s that Salminen had requested were frivolous. Finally, he told the court that although he ha d not spoken with Salminen about his version of events, he was pr epared to proceed to trial. Th e trial court denied Salminen’s motion, finding that Salminen’s lawyer was prepared to go to tr ial, was an experienced lawyer, and was not railroading Salminen for the prosecution. The cour t also noted that the jury was at the courthouse and e veryone was ready to go.

“ ‘An indigent defendant is guaranteed the right to counsel; h owever, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced.’ ” People v McFall , 309 Mich App 377, 382; 873 NW2d 112 (2015), quoting Traylor , 245 Mich App at 462. “Appointment of substitute counsel is w arranted only upon a showing of good cause and where substitution will not un reasonably disrupt the judicial process.” People v Mack , 190 Mich App 7, 14; 475 NW2d 830 (1991). Good cause may be found where defendant and his appointed lawyer develop a disagr eement over fundamental trial tactics, which can include an assertion by the defendant that h is lawyer is “inadequate, lacking in diligence, or disinterested in the case.” People v Buie (On Remand) , 298 Mich App 50, 68; 825 NW2d 361 (2012), quoting People v Meyers , 124 Mich App 148, 166; 335 NW2d 189 (1983). However, “[a] mere allegation that a defendant lacks confidence in his or her attorney,-3- unsupported by a substantial reas on, does not amount to adequat e cause.” People v Strickland

, 293 Mich App 393, 398; 810 NW2d 660 (2011).

The record reflects that Salmi nen received his discovery packe t before trial, and given the straightforward nature of the cas e, it does not appear that was an insufficient time to review the materials. Further, although Salminen’s lawyer did not meet wi th him at the jail, it is apparent that they did meet and discuss the case.

Salminen asserts that his lawyer refused to take requested act ions, but he did not identify those actions for the trial court. Nevertheless, on appeal, Sa lminen identifies two actions he wanted his lawyer to take. First, he asserts that he wanted hi s lawyer to subpoena a witness who would testify that he saw the co rrections office walk to where Salminen was standing, which was an area where other inmates had been standing. However, Salmin en does not assert that the inmate would have testified that he saw another inmate drop the paper containing the marijuana. Thus, the inmate’s testimony would have been cumulative to Salm inen’s own testimony at trial. Moreover, a disagreement between a defendant and his trial lawy er with regard to what evidence to present is not good cause for substitution of counsel. Strickland , 293 Mich App at 398. Second, Salminen asserts that he w anted his lawyer to secure a copy of the video recording of the incident. However, based on the record before us, it appears t hat no video of the incident was actually available. And, again, th e decision about what eviden ce to present is not good cause for substitution of counsel. Id

. 1

Next, Salminen argues that his lawyer was not prepared for tri al because he did not speak with him about his version of events before the day of trial. It is, however, apparent from the record that before the trial act ually started, Salminen and his lawyer discussed Salminen’s version of the events. Salminen’ s lawyer told the court that h e wanted the opportunity to talk with Salminen before voir dire, and the trial court indicated t hat it would allow the time. Subsequently, during his opening statement, Salminen’s lawyer r eferenced Salminen’s version of events, which suggests that the conversation ac tually occurred. Additionally, Salminen’s lawyer questioned the prosecution witnesses in accordance with a theor y that another inmate had dropped the paper containing marijuana after seeing the correct ions officers enter the yard wearing blue gloves. Therefore, it appears that Salminen’s law yer pursued the defense that Salminen wanted, and there is no indication that he was unprepa red to try the case.

Finally, Salminen waited until the day of trial to request a n ew lawyer. The trial court ascertained that Salmin en’s lawyer was ready to proceed to tria l. The prosecutor and presumably the witnesses were also present and waiting, as was the potenti al jurors. Therefor e, a substitution at that point would have unreasona bly delayed the judicial proc ess. See Mack , 190 Mich App at 14.

1 Salminen also asserts that his l awyer never told him whether a plea bargain was offered by the prosecution. However, it does not appear that Salminen’s reque st for a substitute lawyer was premised on the possibility that hi s lawyer failed to communica te a proffered plea bargain.-4- Based on the foregoing, Salminen failed to establish good caus e for the appointment of a substitute lawyer. Id

.

III. EFFECTIVE ASSISTANCE

A. STANDARD OF REVIEW

Next, Salminen argues that he was denied the effective assista nce of a lawyer at trial because of the alleged errors d iscussed above. “Whether a pers on has been denied effective assistance of counsel is a mixed question of fact and constitut ional law.” People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s “factual findings are reviewed for clear error, while its constitutional determinations are reviewed de novo.” People v Matuszak , 263 Mich App 42, 48; 687 NW2d 342 (2004). However, because an evid entiary hearing on the ineffective assistance claim was not held, our review is limite d to errors apparent on the record. Sabin ( On Second Remand) , 242 Mich App 656, 659; 620 NW2d 19 (2000).

B. ANALYSIS

To prevail on a claim of ineffective assistance, a defendant m ust establish that (1) that his lawyer’s performance “was below an objective standard of reason ableness under prevailing professional norms,” and (2) that but for his lawyer’s “unprofe ssional errors” there is a reasonable probability that “the outcome of the proceedings wou ld have been different.” Id . The defendant must overcome the pres umption that his lawyer provide d effective assistance. Id

. Here, Salminen failed to establish that his lawyer was ineffec tive. First, although his lawyer did not meet with him at the prison, the record reflects that he did communicate with Salminen and was prepared for trial. Next, Salminen received h is discovery packet a week before trial, allowing sufficient time for review of a relative ly uncomplicated case. Additionally, his lawyer was not ineffective for failing to take all the acti ons requested by Salminen. As indicated above, the only state d actions were the failure to ca ll a witness whose testimony appears cumulative to Salminen’s and the failure to obtain a co py of the video recording of the incident. Salminen, however, has not provided an affidavit of what the other inmate would have testified to, nor has he established that video recording exist ed. Therefore, he has failed to establish the factual predicate for his claim. See Douglas , 496 Mich at 592. Finally, to the extent that Salminen argues his lawyer was ineffective for fail ing to discuss his version of events before trial, we note that Salmi nen testified at trial to his v ersion of events. Therefore, it is not clear how additional conversation with his lawyer about the eve nts would have affected the outcome of the trial. Accordingly, on this record, Salminen ha s failed to establish that his lawyer’s performance was deficient, and he has not established that there is a reasonable probability that the outcome of the trial would have been diffe rent absent his lawyer’s alleged errors. See Sabin ( On Second Remand) , 242 Mich App at 659.-5- IV. SENTENCING

A. STANDARD OF REVIEW

Finally, Salminen argues that t he trial court improperly score d prior record variable (PRV) 1. Because Salminen failed to object to the scoring of P RV 1 at sentencing, in a motion for resentencing, or in a motion to remand filed in this Court, the issue is unpreserved. People v Loper , 299 Mich App 451, 456; 830 NW2d 836. Unpreserved sentencing issues are reviewed for plain error. Id . Plain error requires that: “1) [an] error must have occurred , 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v Carines

, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third requirement generally requires a showing of prejudice, i.e., that the erro r affected the outcome of the lower court proceedings.” Id

.

B. ANALYSIS

PRV 1 is scored for “prior hi gh severity felony convictions.” MCL 777.51. The trial court must score PRV 1 at 50 points for a defendant with two pr ior high severity felony convictions. MCL 777.51(1)(b). Relevant to this appeal, a con viction for a crime listed in offense class D is a prior hig h severity felony conviction. MC L 777.51(2)(a). Salminen had two convictions for breaking and ente ring with intent to commit a f elony, MCL 750.110, which is a class D felony, MCL 777.16f. Therefore, Salminen had two prior high severity felonies, and the trial court properly scored him 50 points for PRV 1. 2

Affirmed.

/s/ Stephen L. Borrello /s/ Jane E. Markey /s/ Michael J. Kelly

2 Because the trial court did not err in scoring PRV 1 at 50 poi nts, Salminen’s lawyer was not ineffective for failing to object to the scoring. See People v Riley (After Remand) , 468 Mich 135, 142; 659 NW2d 611 (2003) (stating that a defense lawyer is not ineffective for failing to make a frivolous or meritless motion).