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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 23, 2016

v No. 323199
Macomb Circuit Court MATTHEW JAMES BLUMKE, LC No. 2013-004546-FC

Defendant-Appellant.

Before: S ERVITTO , P.J., and S AAD and O’B RIEN , JJ.

P ER C URIAM

.

Defendant appeals as of right his jury trial convictions of as sault by strangulation, MCL 750.84, unlawful imprisonment, MCL 750.349b, malicious destruct ion of property with a value less than $200, MCL 750.377a(1)(d), a nd interfering with a crim e report, MCL 750.483a. The
trial court sentenced defendant a s a fourth-offense habitual of fender, MCL 769.12, to 19 to 40 years in prison for the assault and unlawful imprisonment convi ctions, and 274 days in jail for the malicious destruction of prope rty and interfering with a cr ime report convictions, to be served concurrently. We affirm his convictions, but remand for reconsideration of his sentences
in accordance with Lockridge

. 1

I. EFFECTIVE ASSIST ANCE OF COUNSEL

Defendant first argues that he was denied the effective assist ance of counsel at trial.
Because defendant did not raise this issue in a motion for a ne w trial and no Ginther 2 hearing occurred (defendant’s motion for remand was denied by this Cour t), our review is limited to mistakes apparent on the record. People v Seals , 285 Mich App 1, 19-20; 776 NW2d 314 (2009). Whether defendant was d enied his right to the effectiv e assistance of counsel generally presents a mixed question of fact and constitutional law. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002). In People v Gaines , 306 Mich App 289, 300; 856 NW2d 222 (2014),
this Court stated:

1 People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015).

2 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-2- Effective assistance of counsel is presumed, and defendant bea rs a heavy burden of proving otherwise. To demonstrate ineffective assist ance, defendant must show: (1) that his attorney’s performance fell below an ob jective standard of reasonableness, and (2) that this performance so prejudiced him that he was deprived of a fair trial. “To demonstrate prejudice, the defen dant must show the existence of a reasonable probability that, but for counsel’s e rror, the result of the proceeding would have been diffe rent.” [Citation omitted.]

A. FAILURE TO INTERVIEW

Defendant first argues that defense counsel was ineffective fo r failing to interview the prosecution’s witnesses. “A defendant raising a claim of ineff ective assistance of counsel bears the burden of proving the factual predicate of his or her claim .” People v Stokes , ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 321303); slip op at 14. T o support his assertions on this issue, defendant relies only on a proposed, unsigned affidavit sent to defense counsel and a responsive letter from defense c ounsel attached to his appellat e brief. The only evidence in the record regarding the investigation of witnesses is defense coun sel’s statement that he did not
receive sufficient disc overy about the othe r-acts witness, Cait lyn Thomas, but that he received an opportunity to conduct voir dire before she testified at trial. Because there is no available record
that would establish that trial c ounsel failed to interview or investigate these witnesses, defendant’s claim necessarily fails.

Furthermore, even assuming that defense counsel did not interv iew the prosecution witnesses, the failure to interview witnesses or investigate ev idence does not alone establish inadequate preparation. People v Caballero , 184 Mich App 636, 642; 459 NW2d 80 (1990). “The failure to call witnesses only constitutes ineffective ass istance of counsel if it deprives the defendant of a substantial defense. Similarly, the failure to make an adequate investigation is
ineffective assistance of counsel if it undermines confidence i n the trial’s outcome.” People v

Russell , 297 Mich App 707, 716; 825 NW2d 623 (2012) (internal quotatio ns and citation omitted). Defendant fails to explain how counsel’s alleged fai lure to interview witnesses deprived him of either a substan tial defense or evidence that c ould have been helpful to the defense. Additionally, we reject defendant’s argument that the presumed prejudice test of United

States v Cronic , 466 US 648; 104 S Ct 2039, 80 L Ed 2d 657 (1984), applies. T here is no basis for concluding that defense counsel’s alleged failure was compl ete, or that counsel failed to subject the prosecution’s case to meaningful adversarial testin g. Even assuming that counsel did not investigate and interview witnesses, the record discloses t hat he extensively cross-examined the witnesses at trial, conducte d voir dire of Thomas, and move d for a directed verdict, arguing that the prosecutor failed to offe r sufficient evidence to pres ent certain charges to the jury.

B. SELF-DEFENSE INSTRUCTION

Defendant next argues that defense counsel was ineffective for failing to request a jury instruction on non-deadly force in self-defense. CJI2d 7.22 ex plains that the elements of that defense are (1) that the defendant was not engaged in the commi ssion of a crime at the time he acted, (2) that the defendant honestly and reasonably believed that force was necessary for protection of self, (3) that the defendant used only the amount of force that reasonably seemed necessary to repel the apprehende d harm, (4) that the defendant confined the use of force to the-3- duration of the apprehended threat , and (5) that the defendant did not trigger the apprehended assault through his or her own misconduct.

Even assuming that defense couns el should have requested the s elf-defense instruction based on defendant’s testimony that his girlfriend initiated th eir physical altercation by swinging at him with a shower curtain rod, defendant cannot establish th at defense counsel’s failure so prejudiced him that he was depri ved of a fair trial. Defendant testified that he took full responsibility for his actions that followed. Based on defenda nt’s testimony scoffing that the victim is “a girl” when asked if she outmatched him, his testim ony that she could not beat him up or knock him out, his lack of injuries, and his testimony that he had no desire to escape the victim when given the opportunity when she went to the bathroom , no reasonable juror could find that defendant honestly and reasonably believed that force was necessary for his protection. Moreover, even if the jury believed that the victim attempted t o hit defendant with a shower curtain rod, the jury could not find that the amount of defenda nt’s force—strangling, biting, and threatening to kill the victim—was reasonably necessary to repe l her. Also, defendant wavered between attributing his actions to the need to restrain the vic tim and his lack of control because he had been drinking alcohol. C onsidering that defendant’s tes timony failed to establish the requisite threat to use non-deadly force, combined with the fac t that the victim testified completely differently that defendant was the initial aggressor throughout the evening, defendant cannot establish a reasonable prob ability that, but for defense counsel’s failure to request an instruction on non-deadly force, the result of the proceeding w ould have been different.

C. ASSAULT BY S TRANGULATION

Defendant makes a number of claims related to his decision to testify. First, he claims that defense counsel did not advise him that his testimony coul d be interpreted as an admission of guilt. Defendant has failed to establish a factual predicat e for this claim. Stokes , ___ Mich App at ___; slip op at 14. Inst ead, defendant stated on the re cord that he and defense counsel had discussed the “pros and cons ” of testifying. He also state d that he had an ample amount of time to discuss the decision whether to testify with defense co unsel. Absent any record evidence that defense counsel’s advice fell below an objective standard of reasonableness, this portion of
defendant’s claim must fail.

In a related claim, defendant argues that defense counsel was ineffective because he did
not know about the offense of assa ult by strangulation, and the refore did not advise defendant that his testimony could result in amendment of the charges to include this offense. Even if we
were to conclude that defense counsel’s lack of knowledge of th e offense of assault by strangulation fell below an objective standard of reasonablenes s, defendant cannot establish that
the outcome of the trial would have been different. The eviden tiary support for an instruction on that offense did not depend on defendant’s testimony. The vict im’s testimony regarding the strangulation, alone, established the necessary elements of thi s offense. Therefore, even without defendant’s testimony, the evidence supported the prosecutor’s request to instruct the jury on-4- assault by strangulation. Absent the requisite prejudice, defe ndant was not denied the effective
assistance of counsel. 3

D. MCL 768.27b

Defendant finally argues that defense counsel should have obje cted, during voir dire and outside the presence of the jur y, to information regarding defe ndant’s physical acts against Thomas’s female friend and male friends during one of their con flicts. Instead, defense counsel objected in the presence of the jury when Thomas first testifie d that defendant punched her female friend, who had revealed his infidelity to Thomas. Foll owing the objection, the trial court
instructed Thomas to confine he r testimony to her own experienc es with defendant. The jury did not hear any testimony regarding the male friends. Defense cou nsel did not thereafter request a cautionary instruction about defe ndant punching Thomas’s female friend.

In domestic violence cases, MCL 768.27b allows for the admissi on of evidence of the
defendant’s commission of other acts of domestic violence for a ny purpose for which it is relevant. The definition of domestic violence includes “[p]lac ing a family or household member in fear of physical or mental harm.” MCL 768.27b(5)(a)(ii). A ssuming without deciding that
defendant’s conduct with Thomas’s friends was not domestic viol ence under MCL 768.27b, the
isolated mention of defendant’s punching Thomas’s female friend did not prejudice defendant in light of the overwhelming evidence of his guilt. The victim te stified that defendant was angry and, throughout the night, he exhibited his anger by: blocking the victim’s airway; biting her; grabbing her by her head, leg, hair, and arms; throwing furnitu re, bathroom fixtures, and a lightbulb; repeatedly preventing her from leaving their apartme nt; forcing her to sit under hot water in the tub, and; repeatedly threatening to kill her. Tho mas confirmed that defendant had a bad temper and, during their dating relationship, he had caused her physical and mental harm, including placing her in a headlock, scratching her, punching h er car headlight and window, and dragging her from his car on several occasions while angry. Gi ven the victim’s testimony about the charged acts and Thomas’s testimony demonstrating defendant ’s propensity to commit acts of violence against women who we re or had been romantically inv olved with him, defendant cannot establish a reasonable pr obability that, but for defense counsel’s failure to object earlier to, or to request a cautionary i nstruction about, a single refe rence to defendant’s treatment of Thomas’s female friend, the outcome of the proceeding would hav e been different.

II. SENTENCING

Last, defendant argues that this Court should remand for resen tencing because the trial court improperly scored offense variables (OV) 3, 4, 7, and 8 b ased on facts that were not found by the jury beyond a reasonable doubt. We agree. Because def endant did not object to the

3 In an additional related claim, defendant claims that defense counsel should have questioned him about the difference between a headlock (a body-control tec hnique) and a stranglehold (meant to cut off circulation). Defendant’s claim is inconsist ent with the record. Defense counsel, in fact, elicited testimony from defendant that, with the “headlock,” he was attempting
to restrain the victim.-5- scoring of these OVs on this basis in the trial court, this iss ue is unpreserved and our review is limited to plain error affecting substantial rights. People v Lockridge , 498 Mich 358, 392; 870 NW2d 502 (2015).

In Lockridge , our Supreme Court held that Mi chigan’s sentencing guidelines are unconstitutional to the extent that they require judicial fact- finding beyond facts admitted by the defendant or found by the jury to score offense variables that mandatorily increase the floor of the guidelines minimum sentence range. Id. at 364. The concern is that when a judge makes findings of fact beyond facts admitted by the defendant or foun d by the jury in a sentencing proceeding that mandatorily increases a defendant’s minimum sen tence, this runs afoul of a defendant’s Sixth Amendment right to a jury trial. Id . The Court held that in order to avoid any Sixth Amendment violation, Mich igan’s sentencing guidelines are to be deemed advisory, instead of mandatory. Id. at 391. However, sentencing judges must continue to consult t he guidelines and “ ‘take them into account when sentencing.’ ” Id. (citation omitted).

Defendant was sentenced before Lockridge was decided. In determining whether there is any plain error entitling defendant to relief under Lockridge , the first inquiry is whether the facts admitted by defendant and the facts necessarily found by the ju ry “were sufficient to assess the minimum number of OV points necessary for the defendant’s score to fall in the cell of the sentencing grid under which he or she was sentenced.” Id. at 394. If the answer is “yes,” then defendant cannot establish any plain error. Id. If the answer is “no,” then a remand to the trial
court for a Crosby 4 hearing is required to allow it to determine whether, now aware of the advisory nature of the guidelines, it would have imposed a mate rially different sentence. Id. at 396-397. If the trial court determines that it would have impo sed a materially different sentence, then it shall order resentencing. Id.

Defendant challenges the scoring of the following OVs: the sc ore of 10 points for OV 3 (MCL 777.33(1)(d) requires the assessment of 10 points if “[b]o dily injury requiring medical treatment occurred to a victim”); the score of 10 points for O V 4 (MCL 777.34(1)(a) requires an assessment of 10 points if “[s]erious psychological injury requ iring professional treatment occurred to a victim”); the sc ore of 50 points for OV 7 (MCL 77 7.37(1)(a) provide s for 50 points if “[a] victim was treated with sadism, torture, excessive brut ality or similarly egregious conduct designed to substantially increas e the fear and anxiety a victi m suffered during the offense”); and the score of 15 points for OV 8 (MCL 777.38(1)(a) requires the assessment of 15 points if “[a] victim was asported to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense”). The prosecutor concedes on appeal, and we agree, that even if there is record support for the scoring of these variables, none
of defendant’s convictions—assau lt by strangulation, unlawful i mprisonment, malicious destruction of property, and interfering with a crime report—re quired the jury to make the findings necessary to score them . Moreover, in his testimony a t trial, defendant did not provide any information about the victim’s medical or psychological tre atment under OVs 3 and 4, or specifically admit that he caused aggravated physical abuse or committed asportation or captivity

4 United States v Crosby , 397 F3d 103, 117-118 (CA 2, 2005).-6- according to OVs 7 and 8. Because the reduction in the scoring of OVs 3, 4, 7, and 8 that defendant advocates would change defendant’s sentencing guideli nes range, defendant has made a sufficient showing of plain error to justify remanding this c ase to the trial court to allow it to determine whether, now aware of the advisory nature of the guid elines, it would have imposed a materially different sentence.

Affirmed in part and remanded for further proceedings in accor dance with this opinion. We do not retain jurisdiction.

/s/ Deborah A. Servitto /s/ Henry William Saad
/s/ Colleen A. O'Brien