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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UNPUBLISHED 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: SERVITTO, P.J., and SAAD and O’BRIEN, JJ. 

PER CURIAM. 

 Defendant appeals as of right his jury trial convictions of assault by strangulation, MCL 

750.84, unlawful imprisonment, MCL 750.349b, malicious destruction of property with a value 

less than $200, MCL 750.377a(1)(d), and interfering with a crime report, MCL 750.483a. The 

trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 19 to 40 

years in prison for the assault and unlawful imprisonment convictions, and 274 days in jail for 

the malicious destruction of property and interfering with a crime report convictions, to be 

served concurrently. We affirm his convictions, but remand for reconsideration of his sentences 

in accordance with Lockridge.

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I. EFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant first argues that he was denied the effective assistance of counsel at trial. 

Because defendant did not raise this issue in a motion for a new trial and no Ginther2

 hearing 

occurred (defendant’s motion for remand was denied by this Court), 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 denied his right to the effective 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). 
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 Effective assistance of counsel is presumed, and defendant bears a heavy 

burden of proving otherwise. To demonstrate ineffective assistance, defendant 

must show: (1) that his attorney’s performance fell below an objective standard of 

reasonableness, and (2) that this performance so prejudiced him that he was 

deprived of a fair trial. “To demonstrate prejudice, the defendant must show the 

existence of a reasonable probability that, but for counsel’s error, the result of the 

proceeding would have been different.” [Citation omitted.] 

A. FAILURE TO INTERVIEW 

 Defendant first argues that defense counsel was ineffective for failing to interview the 

prosecution’s witnesses. “A defendant raising a claim of ineffective 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. To support his assertions on this 

issue, defendant relies only on a proposed, unsigned affidavit sent to defense counsel and a 

responsive letter from defense counsel attached to his appellate brief. The only evidence in the 

record regarding the investigation of witnesses is defense counsel’s statement that he did not 

receive sufficient discovery about the other-acts witness, Caitlyn 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 counsel failed to interview or investigate these witnesses, 

defendant’s claim necessarily fails. 

 Furthermore, even assuming that defense counsel did not interview the prosecution 

witnesses, the failure to interview witnesses or investigate evidence 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 assistance 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 in the trial’s outcome.” People v 

Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012) (internal quotations and citation 

omitted). Defendant fails to explain how counsel’s alleged failure to interview witnesses 

deprived him of either a substantial defense or evidence that could 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. There is no basis 

for concluding that defense counsel’s alleged failure was complete, or that counsel failed to 

subject the prosecution’s case to meaningful adversarial testing. Even assuming that counsel did 

not investigate and interview witnesses, the record discloses that he extensively cross-examined 

the witnesses at trial, conducted voir dire of Thomas, and moved for a directed verdict, arguing 

that the prosecutor failed to offer sufficient evidence to present 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 explains that the elements of that 

defense are (1) that the defendant was not engaged in the commission 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 apprehended harm, (4) that the defendant confined the use of force to the 
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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 counsel should have requested the self-defense instruction 

based on defendant’s testimony that his girlfriend initiated their physical altercation by swinging 

at him with a shower curtain rod, defendant cannot establish that defense counsel’s failure so 

prejudiced him that he was deprived of a fair trial. Defendant testified that he took full 

responsibility for his actions that followed. Based on defendant’s testimony scoffing that the 

victim is “a girl” when asked if she outmatched him, his testimony 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 to hit defendant with a shower 

curtain rod, the jury could not find that the amount of defendant’s force—strangling, biting, and 

threatening to kill the victim—was reasonably necessary to repel her. Also, defendant wavered 

between attributing his actions to the need to restrain the victim and his lack of control because 

he had been drinking alcohol. Considering that defendant’s testimony failed to establish the 

requisite threat to use non-deadly force, combined with the fact that the victim testified 

completely differently that defendant was the initial aggressor throughout the evening, defendant 

cannot establish a reasonable probability that, but for defense counsel’s failure to request an 

instruction on non-deadly force, the result of the proceeding would have been different. 

C. ASSAULT BY STRANGULATION 

 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 could be interpreted as an admission 

of guilt. Defendant has failed to establish a factual predicate for this claim. Stokes, ___ Mich 

App at ___; slip op at 14. Instead, defendant stated on the record that he and defense counsel 

had discussed the “pros and cons” of testifying. He also stated that he had an ample amount of 

time to discuss the decision whether to testify with defense counsel. 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 assault by strangulation, and therefore 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 the offense of assault by 

strangulation fell below an objective standard of reasonableness, defendant cannot establish that 

the outcome of the trial would have been different. The evidentiary support for an instruction on 

that offense did not depend on defendant’s testimony. The victim’s testimony regarding the 

strangulation, alone, established the necessary elements of this offense. Therefore, even without 

defendant’s testimony, the evidence supported the prosecutor’s request to instruct the jury on 
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assault by strangulation. Absent the requisite prejudice, defendant was not denied the effective 

assistance of counsel.3

D. MCL 768.27b 

 Defendant finally argues that defense counsel should have objected, during voir dire and 

outside the presence of the jury, to information regarding defendant’s physical acts against 

Thomas’s female friend and male friends during one of their conflicts. Instead, defense counsel 

objected in the presence of the jury when Thomas first testified that defendant punched her 

female friend, who had revealed his infidelity to Thomas. Following the objection, the trial court 

instructed Thomas to confine her testimony to her own experiences with defendant. The jury did 

not hear any testimony regarding the male friends. Defense counsel did not thereafter request a 

cautionary instruction about defendant punching Thomas’s female friend. 

 In domestic violence cases, MCL 768.27b allows for the admission of evidence of the 

defendant’s commission of other acts of domestic violence for any purpose for which it is 

relevant. The definition of domestic violence includes “[p]lacing a family or household member 

in fear of physical or mental harm.” MCL 768.27b(5)(a)(ii). Assuming without deciding that 

defendant’s conduct with Thomas’s friends was not domestic violence 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 testified 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 furniture, bathroom fixtures, and a 

lightbulb; repeatedly preventing her from leaving their apartment; forcing her to sit under hot 

water in the tub, and; repeatedly threatening to kill her. Thomas 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 her car headlight and window, and 

dragging her from his car on several occasions while angry. Given the victim’s testimony about 

the charged acts and Thomas’s testimony demonstrating defendant’s propensity to commit acts 

of violence against women who were or had been romantically involved with him, defendant 

cannot establish a reasonable probability that, but for defense counsel’s failure to object earlier 

to, or to request a cautionary instruction about, a single reference to defendant’s treatment of 

Thomas’s female friend, the outcome of the proceeding would have been different. 

II. SENTENCING 

 Last, defendant argues that this Court should remand for resentencing because the trial 

court improperly scored offense variables (OV) 3, 4, 7, and 8 based on facts that were not found 

by the jury beyond a reasonable doubt. We agree. Because defendant did not object to the 

 

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 In an additional related claim, defendant claims that defense counsel should have questioned 

him about the difference between a headlock (a body-control technique) and a stranglehold 

(meant to cut off circulation). Defendant’s claim is inconsistent with the record. Defense 

counsel, in fact, elicited testimony from defendant that, with the “headlock,” he was attempting 

to restrain the victim. 
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scoring of these OVs on this basis in the trial court, this issue 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 Michigan’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 found by the jury in a sentencing 

proceeding that mandatorily increases a defendant’s minimum sentence, 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, Michigan’s sentencing guidelines are to be deemed advisory, 

instead of mandatory. Id. at 391. However, sentencing judges must continue to consult the 

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 jury “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 Crosby4 hearing is required to allow it to determine whether, now aware of the 

advisory nature of the guidelines, it would have imposed a materially different sentence. Id. at 

396-397. If the trial court determines that it would have imposed a materially different sentence, 

then it shall order resentencing. Id.

 Defendant challenges the scoring of the following OVs: the score of 10 points for OV 3 

(MCL 777.33(1)(d) requires the assessment of 10 points if “[b]odily injury requiring medical 

treatment occurred to a victim”); the score of 10 points for OV 4 (MCL 777.34(1)(a) requires an 

assessment of 10 points if “[s]erious psychological injury requiring professional treatment 

occurred to a victim”); the score of 50 points for OV 7 (MCL 777.37(1)(a) provides for 50 points 

if “[a] victim was treated with sadism, torture, excessive brutality or similarly egregious conduct 

designed to substantially increase the fear and anxiety a victim 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—assault by strangulation, unlawful imprisonment, malicious 

destruction of property, and interfering with a crime report—required the jury to make the 

findings necessary to score them. Moreover, in his testimony at trial, defendant did not provide 

any information about the victim’s medical or psychological treatment 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). 
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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 guidelines range, defendant has made 

a sufficient showing of plain error to justify remanding this case to the trial court to allow it to 

determine whether, now aware of the advisory nature of the guidelines, it would have imposed a 

materially different sentence. 

 Affirmed in part and remanded for further proceedings in accordance with this opinion. 

We do not retain jurisdiction. 

/s/ Deborah A. Servitto 

/s/ Henry William Saad 

/s/ Colleen A. O'Brien