If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

September 23, 2024

1:56 PM

v No. 364437

Oakland Circuit Court

PATRICK FREDRICKDEON LEAK, LC No. 2021-276732-FC

Defendant-Appellant.

Before: CAMERON, P.J., and JANSEN and SWARTZLE, JJ.

PER CURIAM.

Defendant was convicted at trial of assault with intent to do great bodily harm less than 

murder (AWIGBH), MCL 750.84. The trial court sentenced defendant as a fourth-offense habitual 

offender, MCL 769.12, to 15 to 45 years in prison. We affirm defendant’s conviction, but vacate 

his sentence and remand for resentencing.

I. BACKGROUND

In September 2020, codefendant Henry Simms called the victim, Mauricio Miller, and told 

him to come to codefendant Patricia Osborn’s apartment, either for Simms to pay a debt to Miller 

or for Miller to sell drugs to Simms. While Miller, Simms, and Osborn were in the apartment, 

defendant entered and hit Miller in the head with a wrench. According to Miller, he tried to fight 

off defendant, Osborn, and Simms as they tried to hold him down and reach into his pockets. 

Osborn and Simms left at some point, but defendant and Miller continued to struggle. Defendant 

was swinging an object, and Miller reached for it. Several of Miller’s fingers were severed by a 

knife. Surveillance footage from the hallway outside of the apartment showed defendant walking 

into the apartment with a wrench, and, later, Miller backing out of the apartment with defendant 

holding onto his shirt with one hand and holding a wrench above his head in his other hand. Miller 

slipped out of his shirt and ran away.

Codefendants Osborn and Simms each pleaded guilty to unarmed robbery. Miller had a 

prior assaultive conviction, and, before trial, defense counsel attempted to obtain information about 

that victim. The prosecutor and officer-in-charge of this case assisted the defense in attempting to 

contact that victim. The prosecutor also moved the trial court to exclude the evidence, and the trial 
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court took the motion under advisement, depending on what occurred at trial. Miller’s victim did 

not testify at trial.

At defendant’s trial, Miller, Simms, and Osborn testified that defendant hit Miller with an 

object, and Simms and Osborn identified the object as a wrench. Simms and Osborn testified that 

Miller did not attack or provoke defendant. Detective Sean Burney testified about a picture of 

Miller’s head injury from the incident.

Defendant testified that he had carried the wrench for protection, but he did not swing it at 

Miller. Defendant claimed that Miller cut defendant’s face.

In closing, the prosecutor argued that he did not “even have to address the knife” because 

defendant’s assault of Miller with the wrench was AWIGBH. The defense argued that the incident 

could not have happened as the prosecutor’s witnesses described in the short time the video showed 

the parties as being inside the apartment and that Miller cut defendant with the knife. The defense 

highlighted that the prosecutor did not have the knife handle fingerprinted and did not present the 

knife as evidence, arguing that this left the jury with reasonable doubt.

The jury found defendant guilty as charged of AWIGBH, but acquitted him of an additional 

charged of armed robbery, MCL 750.529.

At sentencing, the trial court assessed 50 points for Prior Record Variable (PRV) 1; five 

points for PRV 2; two points for PRV 5; and 10 points for PRV 6. The trial court assessed 25 

points for Offense Variable (OV) 1; five points for OV 2, 25 points for OV 3; 10 points for OV 4; 

50 points for OV 7, and 15 points for OV 10. As a fourth-offense habitual offender, defendant’s 

sentencing guidelines provided for a minimum sentence range of 38 to 152 months in prison. The 

trial court departed from this range and imposed a minimum sentence of 15 years, explaining that 

it could not “overcome that the evidence presented at trial is of a very severe and very brutal crime 

from a defendant who has a history of severe and brutal criminal activity.” Defendant’s history 

included convictions for first-degree criminal sexual conduct, armed robbery, felon-in-possession 

of a firearm, and domestic violence.

Defendant now appeals. Defendant also moved to remand for an evidentiary hearing, and 

this Court denied his motion. People v Leak, unpublished order of the Court of Appeals, entered 

November 22, 2023 (Docket No. 364437).

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

We review de novo a challenge to the sufficiency of the evidence. People v Miller, 326 

Mich App 719, 735; 929 NW2d 821 (2019). We review the evidence in a light most favorable to 

the prosecution and determine whether a rational trier of fact could find that the essential elements 

of the crime were proven beyond a reasonable doubt. Id.

MCL 750.84(1)(a) prohibits the assault of “another person with intent to do great bodily 

harm, less than the crime of murder.” The elements of AWIGBH are: “(1) an attempt or threat 

with force or violence to do corporal harm to another (an assault), and (2) an intent to do great 
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bodily harm less than murder.” People v Blevins, 314 Mich App 339, 357; 886 NW2d 456 (2016) 

(cleaned up). Minimal circumstantial evidence may establish a defendant’s state of mind. People 

v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008).

Viewed in the light most favorable to the prosecution, there was sufficient evidence to find 

beyond a reasonable doubt that defendant assaulted Miller with an intent to commit great bodily 

harm. See Miller, 326 Mich App at 735. There was evidence that defendant hit Miller in the head 

with a wrench and severed Miller’s fingers with a knife. Defendant focuses on “conflicting” 

evidence addressing whether he severed Miller’s fingers, but fails to acknowledge the 

overwhelming evidence demonstrating that he struck Miller in the head with the wrench. The 

surveillance footage showed defendant holding what appears to be the wrench as he entered the 

apartment and then later holding onto Miller’s shirt with one hand, with the wrench clearly raised 

in his other hand. Miller, Simms, and Osborn testified about seeing defendant hit Miller with the 

wrench. Defendant also admitted to having the wrench. This, even without considering evidence 

about Miller’s fingers being severed, was sufficient to support the conviction.

Although defendant argues that the witnesses were not credible, and the jury should have 

believed his version of events, the weight and credibility of the evidence were issues for the jury 

to resolve. See People v Mikulen, 324 Mich App 14, 20; 919 NW2d 454 (2018). This Court will 

not interfere with the jury’s role. See id.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

In his Standard 4 brief, defendant argues that trial counsel was ineffective for several 

reasons. Defendant’s right to counsel is guaranteed by the United States and Michigan 

Constitutions. US Const, Am VI; Const 1963, art 1, § 20. This right includes the right to the 

effective assistance of counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). 

“Whether a defendant has been denied the effective assistance of counsel is a mixed question of 

fact and constitutional law.” People v Solloway, 316 Mich App 174, 187; 891 NW2d 255 (2016). 

Because this Court denied defendant’s motion to remand for a Ginther1hearing, we review his 

ineffective-assistance-of-counsel claims for errors apparent on the record, although we retain the 

authority to remand for an evidentiary hearing if one is needed. See People v Horn, 279 Mich App 

31, 37-38; 755 NW2d 212 (2008).

To establish a claim of ineffective assistance of counsel, defendant must show that: (1) 

defense counsel’s performance was deficient; and (2) the deficient performance prejudiced the 

defense. People v Taylor, 275 Mich App 177, 186; 737 NW2d 790 (2007). Defense counsel’s 

performance is deficient if it fell below an objective standard of professional reasonableness. 

People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007). Defendant must show that 

counsel made errors so serious that counsel was not performing as guaranteed by the Sixth 

Amendment, and “defendant must overcome a strong presumption that counsel’s performance

constituted sound trial strategy.” People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001), 

citing Strickland v Washington, 466 US 668, 104 S Ct 2025, 80 L Ed 2d 674 (1984). The 

performance will be deemed to have prejudiced the defense if it is reasonably probable that, but 

 

1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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for counsel’s error, the result of the proceeding would have been different. Jordan, 275 Mich App 

at 667. A defendant has the burden of establishing the factual predicate for an ineffectiveassistance-of-counsel claim. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).

Defendant first argues that defense counsel was ineffective for failing to obtain fingerprint 

analysis of the knife’s handle to prove that Miller possessed the knife. Defendant has not shown

that results from such testing would have been exculpatory. See id. Defense counsel argued at 

trial that there was reasonable doubt because the prosecutor failed to do a fingerprint analysis of 

the knife or present the knife itself as evidence. This argument supported the defense’s theory that 

Miller was armed with the knife and attacked defendant, and did not fall below an objective 

standard of professional reasonableness. See Jordan, 275 Mich App at 667. “A particular strategy 

does not constitute ineffective assistance of counsel simply because it does not work.” People v 

Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004). Moreover, as previously noted, 

defendant’s conviction was sustainable by evidence of defendant hitting Miller with the wrench, 

so further evidence about the knife was not reasonably likely to affect the outcome of the 

proceedings. See Jordan, 275 Mich App at 667.

Next, defendant argues that defense counsel was ineffective for failing to obtain or have 

the prosecutor produce Miller’s medical records to prove that Miller did not suffer a head injury 

consistent with being struck with a wrench. Again, however, defendant has not made an offer of 

proof that Miller’s medical records would have supported this supposition. See Douglas, 496 

Mich at 592. Instead, Miller, Simms, and Osborn all testified that defendant hit Miller with the 

wrench, and a detective testified about Miller having a visible head injury following the incident. 

Because evidence of an actual injury is not necessary to prove AWIGBH, see People v Stevens, 

306 Mich App 620, 629; 858 NW2d 98 (2014), trial counsel may have chosen not to highlight the

injuries that Miller sustained, as it is without dispute that Miller’s fingers were severed. With the 

significant evidence that defendant at least struck Miller, defendant has not shown that a reasonable 

probability exists that, but for counsel’s failure to use Miller’s medical records, the outcome of the 

proceedings would have been different. See Jordan, 275 Mich App at 667.

Defendant also argues that trial counsel was ineffective for failing to obtain an expert to 

clarify how the DNA and the crime scene supported defendant’s version of the events and to 

explain the dangers of a front-locking knife. Defendant has not made an offer of proof regarding 

the substance of potential expert testimony. See Douglas, 496 Mich at 592. Defendant’s mere 

speculation that an expert might be able to provide unspecified favorable testimony is insufficient 

to show that the failure to call an expert was objectively unreasonable or that there is a reasonable 

probability that the outcome of trial would have been different.

Next, defendant argues that trial counsel was ineffective for failing to investigate and 

present evidence of Miller’s violent criminal history. First, trial counsel sought prosecutor 

assistance to locate Miller’s victim, and argued before the trial court that that victim’s testimony 

might be relevant. Further, defendant has not established that the victim’s testimony would have 

been admissible, or even beneficial. Accordingly, defendant has not established that trial counsel 

was objectively deficient in this instance or that defendant was prejudiced by the performance.

Defendant additionally argues that trial counsel was ineffective for failing to ensure that 

his sentencing guidelines were scored consistently with those of his codefendants. Defendant does 
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not, however, provide any information about the codefendants’ guidelines and fails to identify on 

what basis trial counsel should have challenged any assessments of points. Moreover, the 

codefendants were convicted, by plea, of unarmed robbery, rather than of AWIGBH.

Finally, a Ginther hearing is not required when further factual development would not 

advance defendant’s claim. See People v Chapo, 283 Mich App 360, 368-369; 770 NW2d 68 

(2009). Therefore, we decline to remand the matter for an evidentiary hearing.

C. SENTENCE

The trial court did not, however, properly support its upward-departing sentence. “A 

sentence that departs from the applicable guidelines range will be reviewed by an appellate court 

for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). This Court 

reviews whether the trial court abused its discretion by violating the “principle of proportionality,” 

which requires that a sentence be proportionate to the seriousness of the offense and the offender. 

People v Steanhouse, 500 Mich 453, 459-460; 902 NW2d 327 (2017). Although sentencing 

guidelines are only advisory, they are “a highly relevant consideration in a trial court’s exercise of 

sentencing discretion that trial courts must consult and take into account when sentencing.” Id. 

at 474-475 (cleaned up). The relevant question is whether the sentence is proportionate to the

offense and offender, rather than whether it departs from the guidelines. Id. at 460, 475.

When a trial court departs from the sentencing guidelines, “it must justify the departure on 

the record by explaining why the sentence imposed is more proportionate to the offense and the 

offender than a different sentence would have been.” People v Odom, 327 Mich App 297, 315; 

933 NW2d 719 (2019) (cleaned up). Relevant considerations for the proportionality of a sentence 

include whether the guidelines accurately reflect the seriousness of the offense and whether there 

are factors that the guidelines did not consider or adequately consider. Id.

In this case, the trial court did not properly articulate why the sentence it imposed was more 

proportionate to the offense and offender than a different sentence would have been. See id. The 

trial court briefly noted that “the evidence presented at trial is of a very severe and very brutal 

crime from a defendant who has a history of severe and brutal criminal activity.” This statement 

does not, however, specify why this specific sentence was appropriate.

The trial court did not explain how or if the brutality of the offense was not reflected by

the 50 points assessed for OV 7, which requires an assessment of 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.” MCL 777.37(1)(a). “For purposes of OV 7, 

excessive brutality means savagery or cruelty beyond even the usual brutality of a crime.” People 

v Rosa, 322 Mich App 726, 743; 913 NW2d 392 (2018) (cleaned up). Similarly, the trial court did 

not properly explain why defendant’s PRV score did not account for defendant’s history.

The trial court may have determined that the departure and its extent were justified. It 

must, however, provide sufficient articulation for appellate review. See Odom, 327 Mich App 

at 315. Accordingly, this case must be remanded for the trial court to articulate why defendant’s 

sentence is warranted or to resentence defendant. See People v Bunch, 505 Mich 874, 874; 935 

NW2d 366 (2019).
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We affirm defendant’s conviction, but vacate his sentence and remand for resentencing. 

We do not retain jurisdiction.

/s/ Thomas C. Cameron 

/s/ Kathleen Jansen 

/s/ Brock A. Swartzle