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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 18, 2017

v No. 329651 Wayne Circuit Court SEAN MICHAEL VEAL, LC No. 14-009360-01-FC

Defendant-Appellant.

Before: F ORT H OOD , P.J., and J ANSEN and H OEKSTRA , JJ.

P ER C URIAM

. Defendant appeals as of right his bench trial convictions of c arjacking, MCL 750.529a, unlawfully driving away an automobile (UDAA), MCL 750.413, and possession of a firearm during the commission of a fe lony (felony-firearm), MCL 750.227 b. He was sentenced to concurrent terms of 9 to 20 years in prison for the carjacking conviction and two to five years in prison for the UDAA conviction, which were to be served consecu tively to a two-year prison term for the felony-firear m conviction. We affirm.

This case arises from the carjacking of the victim, Roderick F ord. Defendant first argues that he was denied the effective assistance of counsel because defense counsel failed to impeach Ford, the prosecutor’s only witness, with his preliminary exami nation testimony. We disagree.

The question whether defense c ounsel rendered ineffective assi stance is a mixed question of fact and constitutional law. People v Trakhtenberg
, 493 Mich 38, 47; 826 NW2d 136 (2012). The trial court must first find the facts and then decide wheth er those facts consti tute a violation of the defendant’s constitutiona l right to the effective assist ance of counsel. People v LeBlanc
, 465 Mich 575, 579; 640 NW2d 246 (2002). This Court reviews the trial court’s findings of fact for clear error. Trakhtenberg
, 493 Mich at 47. Questions of constitutional law are reviewed de

novo. Id . Because the trial court did not hold an evidentiary hearing on the issue, our review is limited to errors apparent on the record. See People v Horn
, 279 Mich App 31, 38; 755 NW2d 212 (2008). To establish ineffect ive assistance of counsel, “a defendant must show that (1) counsel’s performance fell below an objective standard of reaso nableness and (2) but for counsel’s deficient performance, there is a reasonable probabil ity that the outcome would have been different.” Id . at 51.-2- Defendant calls attention to f our instances where, he argues, defense counsel should have impeached Ford’s trial testimony with his preliminary examinati on testimony. First, defendant claims that defense counsel should have impeached Ford with For d’s preliminary examination testimony regarding which perpetrator held a gun to his head an d ordered him out of the car during the carjacking. At trial, Ford testified that defendant appeared at his car window and demanded that Ford get out of the car. Ford further testified that a second man pointed a gun at his temple and ordered him out o f the car, while defendant poin ted a gun at Ford’s chest. At the preliminary examination, Ford testified that it was defendant, rather than the second man, who held a gun to his head and ordered him out of the car.

Decisions regarding what evidence to present and how to questi on witnesses are generally matters of trial stra tegy, which this Court will not second-guess. Horn , 279 Mich App at 39. Ford’s testimony at trial was generally consistent with his preliminary examination testimony. At both proceedings, Ford testified that defendant approached the car with a gun, pointed the gun at him, and ordered him out of the car. Given the general consistency in Ford’s testimony, as well as Ford’s testimony that there was “[n]o dou bt in [his] mind” that defendant was one of the perpetrators, defense counsel reasonably may hav e concluded that the impeachment would not have helped defendant’s case to any signi ficant degree. Furthermore, defendant has not shown a reasonable probability that, but for defense counsel’s failure to impeach Ford with the prior testimony, the result of the procee ding would have been different. Ford consistently testified tha t defendant pointed a gun at him and ordered him out of the car. Therefore, we conclude that ther e is not a reasonable probabili ty that, but for defense counsel’s conduct, the result of the proceeding would have been different . See Trakhtenberg , 493 Mich at 51.

Second, defendant argues that defense counsel should have impe ached Ford with his preliminary examination testimony regarding the types of guns u sed during the carjacking. Ford testified at trial that defendant’s gun “seemed like a .380 or a Glock,” and that the second man’s gun “looked like a .357 revolver.” At the preliminary examinat ion, Ford testified that the gun defendant was holding “looked like a Glock or a .9 millimeter,” and that the second man’s gun “[l]ooked like a .380.” While the re was some inconsistency in Ford’s testimony, the inconsistency was not significant. The exact type of guns used by the perpetrators was not an important detail in the case. Furthermore, Ford’s testimony th at the guns “looked like” a certain type of gun indicated that Ford was not certain regarding his i dentification of the guns. This explains the minor discrepancy in his testimony. Under these c ircumstances, defendant has not shown that defense counsel’s failure to impeach Ford with the p rior testimony amounted to ineffective assistance of counsel.

Third, defendant argues that defense counsel should have impea ched Ford with his preliminary examination testimony regarding when he viewed the photographic lineup. Ford testified at trial that he parti cipated in a photo lineup three days after the carjacking. At the preliminary examination, Ford tes tified that he viewed the phot o lineup “[p]robably about a week after” the incident. Again, defendant has not shown that defen se counsel’s failure to impeach Ford with this minor difference in his testimonies amounted to ineffective assistance of counsel. Ford’s preliminary examination testimony indicated that he was estimating the amount of time that passed between the incident and his viewing of the photo a rray. We cannot conclude that defense counsel’s failure to question Ford regarding the lineup constituted deficient performance-3- or that there is a reasonable probability that had defense coun sel questioned Ford regarding this minor inconsistency, the result of the proceeding would have be en different.

Finally, defendant argues that defense counsel should have imp eached Ford with his failure to mention a third perpet rator during his preliminary e xamination testimony. At trial, Ford testified that, before def endant and the second man drove off in the car, a third man appeared and jumped into the back seat of the car. Ford did no t mention a third person during his preliminary examination testimony. At the preliminary exam ination, Ford was not questioned regarding the appearance of a third person, and he d id not deny the existence of a third person, but merely offered no testimony regarding a third person. The appearance of the third person was not an important fact, and there was no real i nconsistency in the testimony because Ford merely omitted any reference to the third person a t the preliminary examination. Therefore, defense counsel’s decision not to impeach Ford did n ot constitute deficient performance. Furthermore, defendant has not shown that there w as a reasonable probability that the result of the proceeding would have been different had Ford been impeached on this basis. Accordingly, defendant has not shown that defense counsel’s fai lure to impeach Ford with the lack of prior testimony regarding the third person amounted to ineffective assistance of counsel.

Defendant next argues that defense counsel was ineffective bec ause he failed to allocute on defendant’s behalf at se ntencing. We disagree.

“The decision to address the court at sentencing is a tactical one.” People v Arney
, 138 Mich App 764, 766; 360 NW2d 291 (1984). “A difference of opini on as to trial tactics does not amount to ineffective assistance of counsel.” Id. In this case, at the beginning of the sentencing hearing, the sentencing judge indicated that he intended to sen tence defendant to nine years in prison, which was the very bottom of the 108 to 180 months reco mmended minimum sentence range. Defense counsel reasonably may have believed that he co uld not have improved defendant’s position through allocution. This Court should not second-guess defense counsel’s reasonable, strategic decision not to allocute on defendant’s b ehalf. See People v Dunigan , 299 Mich App 579, 589-590; 831 NW2d 243 (2013). Furthermore, defen dant has not shown a reasonable probability that allocution would have resulted in a lower sentence. Accordingly, defendant has not shown that he w as denied the effective assist ance of counsel.

Defendant presents additional i ssues on appeal in his Standard 4 brief. Defendant first argues in his Standard 4 brief that he is entitled to a new tri al because the trial judge, sitting as the trier of fact, was informed by the prosecutor that defendan t had been charged with an unrelated offense that occurred on the same day as the offenses for which defendant was being tried. We disagree.

We review this unpreserved, nonconstitutional issue for plain error affecting defendant’s substantial rights. People v Carines
, 460 Mich 750, 763; 597 NW2d 130 (1999). While the trial judge should not have been informed that defendant was charged with another offense that occurred on the same day as the instant offenses, we are not co nvinced that any error affected the outcome of the proceedings. Erro r that warrants reversal in a jury trial may not necessarily warrant reversal in a bench trial. See People v Martin , 150 Mich App 630, 640; 389 NW2d 713 (1986). Furthermore, “[a] judge, unlike a juror, possesses an understanding of the law which allows him to ignore such errors and to decide a case based sol ely on the evidence properly-4- admitted at trial.” People v Taylor , 245 Mich App 293, 305; 628 NW2d 55 (2001) (citation and quotation marks omitted). Given these principles and the brief nature of the prosecutor’s comments, we cannot conclude that any error amounted to plain e rror that affected defendant’s substantial rights. Furthermore, the trial judge clarified tha t the prosecution could not tell him that information, and the prosecutor did not discuss the unrela ted offense further. Therefore, we conclude that defendant fails to establish plain error affectin g his substantial rights. See Carines
, 460 Mich at 763.

Defendant next argues in his Standard 4 brief that he is entit led to resentencing because he was denied his right to allocu te at the sentencing hearing. We disagree.

We review this unpreserved issue for plain error affecting def endant’s substantial rights. See Carines
, 460 Mich at 763. MCR 6.425(E)(1)(c) provides that the sentenci ng court must, on the record, “give the defendant, the defendant’s lawyer, the pr osecutor, and the victim an opportunity to advise the court of any circumstances they belie ve the court should consider in imposing sentence.” “[T]his court rule means that the trial co urt must make it possible for a defendant who wishes to allocute to be able to do so before the sentence is imposed.” People v Petit
, 466 Mich 624, 628; 648 NW2d 193 (2002). In order to provide a defendant with an opportunity to allocute, however, the court need not specifical ly ask the defendant whether he or she has anything to say before sentencing. Id. “The defendant must merely be given an opportunity to address the court if he chooses.” Id. In Petit
, the Michigan Supreme Court concluded that the sentencing court complied with the court rul e merely by asking at the sentencing hearing whether there was “anything further.” Id. at 629. In the present case, after discussing whether defendant would plead guilty to an unrelated armed robbery charge, the sentencing judge asked, “Anything else before I sentence him?” Defendant had an opportunity to address the court at this time. Therefore, defendant has no t shown that he was denied an opportunity to allocute at t he sentencing hearing.

Defendant next argues in his Standard 4 brief that he is entit led to resentencing before a different judge because the sentencing judge considered his ref usal to admit his guilt when determining his sentence. We disagree.

Because defendant failed to preserve this issue for review, we review the issue for plain error that affected substantial rights. See Carines , 460 Mich at 763. “ ‘A sentencing court cannot base a sentence even in part on a defendant’s refusal to admit guilt.’ ” People v Payne
, 285 Mich App 181, 193-194; 774 NW2d 714 (2009) (citation omitte d).

To determine whether sentencing was improperly influenced by th e defendant’s failure to admit guilt, this Court focuses on three factors: “( 1) the defendant’s maintenance of innocence after conviction; (2) the judge’s atte mpt to get the defendant to admit guilt; and (3) the appearance that had the d efendant affirmatively admitted guilt, his sentence would not have been so severe.” [ People v Dobek , 274 Mich App 58, 104; 732 NW2d 546 (2007) (citation omitted).]

At the hearing, the court discussed defendant’s sentence in th e instant case and whether defendant would accept a plea offer in an unrelated armed robbe ry case. It is not clear from the-5- sentencing transcript whether defendant was referring to the co nvictions in the instant case or the unrelated armed robbery charge when he stated, “I just want you to know that I really did not do the case.” Even if defendant was referring to the charges in t he instant case, however, there is nothing in the record to indicate that the sentencing judge att empted to get defendant to admit his guilt to the carjacking, UDAA, and felony-firearm charges. Fur thermore, we cannot conclude that, had defendant affirmatively admitted his guilt, his sente nce would have been less severe. Defendant’s minimum sentence of nine years in prison was at the very bottom of the sentencing guidelines minimum recommended sentence range of 108 to 180 mon ths in prison, and the trial judge stated at the beginning of the sentencing that he intende d to sentence defendant to a minimum sentence of nine years’ imprisonment. We therefore fin d no error in the court’s determination of defendant’s sentence.

Finally, defendant argues in his Standard 4 brief that the sen tencing judge improperly considered defendant’s refusal to plead guilty in an unrelated case when determining his sentence in the instant case. We disagree.

Because defendant failed to preserve this issue for appellate review, we review the issue for plain error affecting defendant’s substantial rights. See Carines , 460 Mich at 763. Contrary to defendant’s argument, a revie w of the record does not show t hat the trial court considered defendant’s refusal to plead gui lty in the unrelated case when determining his sentence in the instant case. At the beginning of the sentencing hearing, the judge indicated his intention to sentence defendant to nine years in prison in the instant case, which was the very bottom of the recommended minimum sentence range of 108 to 180 months in pris on. After the parties discussed the possible plea in an unrelated armed robbery case and defendant indicated that he was not at the scene of the unrelated armed robbery, the senten cing court still imposed a nineyear minimum sentence in the instant case. Accordingly, defend ant has not shown that the sentencing court considered his refusal to admit his guilt in t he unrelated case when determining his sentence in the instant case.

Affirmed.

/s/ Karen M. Fort Hood /s/ Kathleen Jansen /s/ Joel P. Hoekstra