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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 20, 2015

v No. 321490 Wayne Circuit Court WILLIE LEE WIMBERLY, LC No. 13-003881-FC

Defendant-Appellant.

Before: G LEICHER , P.J., and S AWYER and M URPHY , JJ.

P ER C URIAM

. A jury convicted defendant of two counts of assault with inten t to commit murder, MCL 750.83, but acquitted him of an additional charge of possession of a firearm during the commission of a felony (felony- firearm), MCL 750.227b. The tri al court sentenced defendant as a second habitual offender, MCL 769.10, to concurrent prison te rms of 40 to 60 years for one of the convictions (relating to victim Brendon Charles) and 25 to 37-2/3 years for the other conviction (relating to victim S eylon Dudley). Defendant appea ls as right. We affirm.

I. BACKGROUND

Defendant was convicted of aiding or abetting the shooting ass aults of Brendon Charles and Seylon Dudley during the early morning hours of January 1, 2013, in an apparent road-rage incident after Charles and Dudleyleft the MGM Grand Casino in Detroit. Charles and Dudley left the casino in a Range Rover driven by Charles. Defendant, who had also been at the casino, was driving a Ford Expedition with two passengers, one of whom was Steven Smith-Rush (“Rush”). After an altercation between the drivers of the two vehicles while leaving the casino, the Expedition followed the Range Rover onto the I-94 freeway, eventually pulled alongside the vehicle, and then multiple gunshots were fired from the Expedit ion into the Range Rover. Charles and Dudley were both struck by gunfire.

Defendant and Rush were arrested later in January 2013, but Ru sh was initially charged only with accessory after the fact. Charles was murdered the d ay before a joint preliminary examination for defendant and Rush was to be held on January 30 , 2013. When the preliminary examination ultimately concluded in April 2013, defendant was b ound over for trial on two counts of assault with intent to commit murder and one count of felony-firearm. The district court found insufficient credible evidence to add assault charg es against Rush, but bound Rush over for trial on charges of accessory after the fact and givin g a false statement to the police.-2- Rush later entered a guilty plea to the latter charge. Defendant testified at trial and admitted driving the Expedition when his passengers fired gunshots into the Range Rover, but argued that he was merely present in the vehicle, was unaware that his pass engers intended to fire gunshots into the Range Rover, and did nothing to aid or assist the pass engers in the shooting assault of the two victims. The prosecution presented evidence linking de fendant to an attempt to bribe Charles if he did not testify at the preliminary examination, a nd linking him to Charles’s murder the day before the scheduled preliminary examination. The juryconvicted defendant of two counts of assault with intent to commit murder, but acquitted h im of the felony-firearm charge.

II. COUNSEL OF CHOICE

Defendant first argues that the trial court violated his Sixth Amendment right to retain counsel of his choice when it denied his motions to adjourn the trial to permit him to retain substitute counsel of his choice. Defendant’s motions were bro ught three days before trial was scheduled to begin and on the first day of trial in March 2014. We disagree with defendant’s challenge.

This Court reviews a trial court’s decision affecting a defend ant’s right to retain counsel of choice and whether to adjourn trial for an abuse of discreti on. People v Akins , 259 Mich App 545, 556; 675 NW2d 863 (2003). “An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principl ed outcomes.” People v Unger
, 278 Mich App 210, 217; 749 NW2d 272 (2008). We review issues o f constitutional law de

novo. People v LeBlanc , 465 Mich 575, 579; 640 NW2d 246 (2002).

The Sixth Amendment affords a defendant a right to retain coun sel of choice. United States v Gonzalez-Lopez , 548 US 140, 144; 126 S Ct 2557; 165 L Ed 2d 409 (2006); People v Aceval , 282 Mich App 379, 386; 764 NW2d 285 (2009). But the right is not absolute. Akins
, 259 Mich App at 557. The defendant’s r ight to retain counsel o f choice must be balanced against the public’s interest in the prompt and effective administratio n of justice. Aceval , 282 Mich App at 387; Akins , 259 Mich App at 557. In People v Echavarria , 233 Mich App 356, 369; 592 NW2d 737 (2003), this Court observed:

When reviewing a trial court's decision to deny a defense atto rney's motion to withdraw and a defendant's motion for a continuance t o obtain another attorney, we consider the following factors: (1) whether the de fendant is asserting a constitutional right, (2) whether the defendant has a legitim ate reason for asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and (5) whether the defendant demons trated prejudice resulting from the trial court's decision. [Citation omitted.]

In this case, defendant satisfied the first factor by assertin g a constitutional right to retain counsel of his choice. But defendant did not establish a bona fide dispute with his retained counsel over trial strategy at the time of the motions, but rather expressed general dissatisfaction with defense counsel’s performance and counsel’s alleged lack o f communication regarding the development of a general defense of innocence. Furthermore, co nsidering that the trial proceedings were previously delayed because of a mid-trial defe nse request for a competency-3- examination, which the trial cour t granted, that further delay occurred as a result of the trial court allowing defendant’s second retain ed attorney to enter an appearance as defendant’s counsel of choice, and that defendant waited until just before trial to attempt to substitute his third counsel of choice, the trial court’s conc lusion that defendant was enga ging in delay tactics was reasonable and found support in the record.

Under the circumstances, the trial court decision not to allow another adjournment for defendant to proceed with another retained attorney was not an abuse of discretion. Balancing defendant’s right to counsel of his choice against the public i nterest in the prompt and efficient administration of justice, defenda nt’s Sixth Amendment right to counsel of choice was not violated.

III. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence was insufficient to convict him of assault with intent to commit murder because, at most, it only established that he was merely present as the driver of the Expedition at the time of the shooting assaults against Charles and Dudley by his gunwielding passengers. We disagree.

Due process commands a judgment of acquittal in a criminal cas e where the evidence at trial is insufficient to sustain a conviction. People v Lemmon
, 456 Mich 625, 633-634; 576 NW2d 129 (1998). We review de novo the issue regarding whether there was sufficient evidence to support a conviction. People v Lueth , 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Cou rt must view the evidence – whether direct or circumstantial – in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and liste ns to their testimony; therefor e, an appellate court must not interfere with the jury’s role in assessing the weight of the e vidence and the credibility of the witnesses. People v Wolfe , 440 Mich 508, 514-515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise from such evi dence can constitute satisfactory proof of the elements of the crime. People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theoryof innocence, but need only prove the elements of the crime in the face of whatever contrad ictory evidence is provided by the defendant. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

Assault with intent to commit murder is a specific intent crim e. People v Lipps , 167 Mich App 99, 105; 421 NW2d 586 (1988). “The elements of assaul t with intent to commit murder are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.” People v Brown , 267 Mich App 141, 147-148; 703 NW2d 230 (2005) (citations and quotation marks omitted). With respect to aidin g or abetting, “[e]very person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, a ids, or abets in its commissionmay hereafter be prosecuted, indicted, tried and on convicti on shall be punished as if he ha d directly committed such offense.”-4- MCL 767.39. A conviction under an aiding or abetting theory re quires proof that “the defendant aided or abetted the commission of an offense and that the defe ndant intended to aid the charged offense, knew the principal intended to commit the charged offe nse, or, alternatively, that the charged offense was a natural and probable consequence of the c ommission of the intended offense.” People v Robinson , 475 Mich 1, 15; 715 NW2d 44 (2006). “The phrase ‘aids and abets’ is used to describe any type of assistance given to the perpetrator of a crime by words or deeds that are intended to encourage, support, or incite the co mmission of that crime.” People v Moore , 470 Mich 56, 63; 679 NW2d 41 (2004). However, “[m]ere presen ce, even with knowledge that an offense is about to be committed or is being committed, is not enough to make a person an aider or abettor; nor is mere mental approval, pass ive acquiescence or consent sufficient.” People v Turner , 125 Mich App 8, 11; 336 NW2d 217 (1983); see also People v Norris , 236 Mich App 411, 419-420; 600 NW2d 658 (1999).

Defendant does not dispute that there was sufficient evidence to establish that he was the driver of the Expedition, but argues that the evidence merely s howed that he was present when his passengers fired gunshots into the Range Rover occupied by Charles and Dudley. Defendant argues that there was no evidence showing that he intended to a id or abet his passengers, or that he had an intent to kill Charles or Dudley. With respect to th e intent to kill, it is well settled that such intent may be inferred from any facts in evidence. Unger , 278 Mich App at 223. “Because of the difficulty of proving an actor’s state of mind, minimal circumstantial evidence is sufficient to establish a defendant’s intent to kill.” Id. In general, the intent to kill may be gleaned from the nature of the acts that constituted the assault, the temper or disposition of mind with which the acts were apparently performed, whether the means used woul d naturally produce death, use of a dangerous weapon, any declar ations by the defendant, and a ll other circumstances calculated to throw light upon the intention with which an assault was mad e. Brown , 267 Mich App at 149 n 5; People v DeLisle , 202 Mich App 658, 672; 509 NW2d 885 (1993). Of course, an ai der and abettor’s state of mind may also be inferred from all the facts and circumstances. Carines , 460 Mich at 757. Relevant factors include whether there existed a close relationship between the defendant and the principal, the defendant’s actions in plannin g and executing the crime, and evidence of flight after the crime. Id. at 757-758.

Viewed in a light most favorable to the prosecution, the evide nce established that the shooting occurred shortly after an encounter in which the Exped ition driven by defendant cut off the Range Rover driven by Charles, which prompted Charles to make some facial gestures at defendant. According to Dudley, Charles also flashed a wad of money at defendant during this encounter. Thereafter, defendant followed the Range Rover vehi cle. Charles indicated in a statement to a state trooper that the Expedition made a last mi nute lane change to enter I-94 behind the Range Rover. Dudley testified that the Expedition s ped up and “got like nose hair close to us,” and that the Expedi tion touched the driver’s side of the Range Rover when gunshots were fired into the Range Rover. Testimony from Avantis Parker indicated that defendant later took steps to prevent Charles from testifying at the preliminar y examination by making arrangements to try to give Charles money and to have him kille d. A jury may infer a consciousness of guilt from evidence that a defendant threatene d or bribed a witness. See People v Sholl , 453 Mich 730, 740; 556 NW2d 851 (1996); People v Mock , 108 Mich App 384, 389; 310 NW2d 390 (1981).-5- Although defendant asserts that he was merely present and had no knowledge that his passengers intended to fire gunshots into the Range Rover, the evidence that defendant, the person in control of the Expedition, suddenly changed direction s to follow the Range Rover onto I-94 supports an inference that defendant entered the freeway w ith the specific intent to pursue the Range Rover. Further, given the testimony that defendant p ulled alongside the Range Rover and then maneuvered his vehicle in a manner causing it to physi cally strike the Range Rover at the time the shots were fired, the jury could infer that defend ant shared his passengers’ intent to harm the occupants of the Range Rover. Moreover, Avantis Parke r’s testimony also allowed the jury to infer that defendant acted to prevent Charles from test ifying because of defendant’s consciousness of guilt for the charged offenses. Accordingly, considering all the facts and circumstances, the evidence was sufficient to enable the jury t o find beyond a reasonable doubt that defendant intentionally pulle d up to the driver’s side of the Range Rover in order to enable his passengers to fire gunshots into the Range Rover, with the intent to kill the occupants. Thus, the evidence was sufficient t o support defendant’s convictions.

IV. GREAT WEIGHT OF THE EVIDENCE

Defendant also argues that the j ury’s guilty verdicts are agai nst the great weight of the evidence. This issue is unpreserved because defendant failed t o raise it in a motion for a new trial in the trial court, People v Cameron , 291 Mich App 599, 617; 806 NW2d 371 (2011), and this Court previously denied defendant’s motion to remand with respect to this issue, People v Wimberly , unpublished order of the Court of Appeals, entered January 30 , 2015 (Docket No. 321490). An unpreserved challenge to the weight of the evidenc e is reviewed for plain error affecting substantial rights. Cameron , 291 Mich App at 617.

A verdict is against the great weight of the evidence only if the evidence preponderates so heavily against the verdict that allowing the verdict to stand would be a miscarriage of justice. Id. Defendant’s great-weight argument is merely a restatement of his challenge to the legal sufficiency of the evidence. Defendant does not offer any addi tional support for his position that the jury verdict’s is against the great weight of the evidence. As previously indicated, there was sufficient evidence to support th e jury’s verdict. Furthermore , the testimony against defendant did not contradict or defy physic al facts and realities or laws of science, nor was the testimony against him patently incredible or inherently implausible. See Lemmon , 456 Mich at 643-644 (recognizing exceptional situati ons in which a verdict may be a gainst the great weight of the evidence). Therefore, we reject this claim of error.

V. JURY INSTRUCTIONS

Next, defendant raises four c laims of instructional error. We generally review claims of instructional error de novo. People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011). But a trial court’s determination regarding whether a jury instruct ion applies to the facts of the case is reviewed for an abuse of discretion. People v Gillis , 474 Mich 105, 113; 712 NW2d 419 (2006). An unpreserved claim of instructional error is reviewed for pla in error affecting substantial rights. People v Vaughn
, 491 Mich 642, 664-665; 821 NW2d 288 (2012).

An appellate court reviews jury instructions as a whole to det ermine if error requiring reversal occurred. People v Wood , 307 Mich App 485, 519; 862 NW2d 7 (2014). “The jury-6- instructions must include all elements of the charges offenses, and must not omit material issues, defenses, or theories that the evidence supports.” Id. Even if the jury instructions are somewhat imperfect, reversal is not warranted if they fairly present the issues to be tried and sufficiently protect the defendant’s rights. People v Kurr , 253 Mich App 317, 327; 654 NW2d 651 (2002).

A. CONSCIOUSNESS OF GUILT

Defendant first argues that the trial court gave an erroneous jury instruction relating to the jury’s consideration of the evidence that defendant attempted t o bribe Charles or may have been involved in his murder to demonstrate defendant’s consciousness of his guilt in this case. 1 Defendant complains that the instruction given by the trial cou rt failed to specify that his alleged conduct did not prove his guilt, nor did it indicate that there may be other innocent reasons for the alleged conduct. Defendant a rgues that the court’s instruc tion should have been modeled after M Crim JI 4.4, formerly CJI2d 4.4, concerning the use of flight as evidence of consciousness of guilt. Defendant alternatively argues that th e court should have given M Crim JI 4.11, formerly CJI2d 4.11, concer ning the limited, permissib le use of evidence of a defendant’s other crimes or improper acts.

Defense counsel did not challe nge the substance of the trial c ourt’s instruction at trial, but only argued that the court should not give any instruction at a ll regarding the use of the evidence. Accordingly, defendant’s present argument is not preserved for appeal. “[A]n objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground.” People v Bulmer , 256 Mich App 33, 35; 662 NW2d 117 (2003). Thus, review is li mited to plain error affecting defendant’s substantial rights. Vaughn
, 491 Mich at 664-665.

Shortly before trial began in March 2014, MCR 2.512(D)(2) was amended to require a trial court to use the Model Criminal Jury Instructions where they are requested, applicable, and accurately state the law. 2 But a trial court is also authorized to give additional instr uctions not covered by the model instructions. MCR 2.512(D)(4). The “[a]d ditional instructions, when given, must be must be patterned as nearly as practicable after the style of the model instructions and must be concise, understanda ble, conversational, unslanted, and nonargumentative.” Id.

Defendant’s reliance on M Cri m JI 4.4 (concerning evidence of flight) is misplaced. While the flight instruction rec ognizes that there may be reaso ns for flight that are consistent with innocence, People v Smelley , 485 Mich 1023; 776 NW2d 310 (2010), defendant does not suggest, and the evidence did not show, any plausible innocent reason for the alleged conduct in

1 We note that, with respect to Charles’s murder, defendant was eventually convicted in the Washtenaw Circuit Court of first-degree murder, conspiracy to c ommit first-degree murder, witness intimidation, and felony-firearm. An appeal of those c onvictions is currently pending in this Court. Docket Nos. 322923 and 325763.

2 Although the parties referred to and apparently used the forme r jury instructions at trial (CJI2d), we note that the former and current pertinent jury ins tructions are substantively the

same.-7- this case, which involved an attempt to bribe Charles or to hav e him killed to prevent him from testifying in this case. In a ddition, the trial court’s instru ction made it clear that it was up to the jury to determine (1) “whether the defendant did, in fact, try to pay a witness not to testify and/or subsequently played a role in the murder of that witness,” and (2) the weight, if any, to be given to the evidence. Moreover, the court did not suggest that the jury was required to find that the evidence, if believed, demonstrated defendant’s consciousness o f guilt, but rather instructed that if the jury found that defendant committed one of the alleged a cts, it “may” use that as evidence of consciousness of guilt. The court’s instruction left to the jury the tasks of determining whether defendant actually committed the alleged acts and what weight, if any, to give the evidence. Defendant also argues that the trial court should have used M Crim JI 4.11(2)(g) to explain the purpose of the evidence regarding the bribery and m urder of Charles, but the substance of the instruction actually given by the trial court achieved that purpose because it explained the permissible use of the evidence to show conscious ness of guilt. To the extent that defendant suggests that the trial court should have simply allo wed the prosecutor to address this issue in closing argument, as suggested by defense counsel, his argument provides no basis for relief. The fact that the evidence was a permissible subject o f closing argument does not mean that it was improper to instruct the jury regarding the permiss ible use of the evidence. A trial court may instruct the jury on the limited purpose of evidence. MRE 105. For these reasons, there was no plain error.

B. ACCOMPLICE TESTIMONY

Second, defendant argues that the trial court erred by failing to read the cautionary instruction on accomplice testimony in former CJI2d 5.6, now M Crim JI 5.6, with respect to Avantis Parker’s testimony. We find no support in the record f or defendant’s claim that defense counsel requested this instruc tion. Rather, the record indicat es that defense counsel requested former CJI2d 5.13, now M Crim JI 5.13, based on Avantis’s testi mony that he hoped to receive some benefit at his sentencing for his second-degree murder conviction relating to Charles’s murder because of his testimony in this case. Thus, this issue is not preserved with respect to defendant’s argument based on M Crim JI 5.6.

Regardless, we find no error, p lain or otherwise, with respect to the failure to give an instruction based on M Crim JI 5.6. Because Avantis was not an alleged accomplice to the charged assaults on Charles and Dudley, M Crim JI 5.6 was not a pplicable to his testimony. See People v Ho , 231 Mich App 178, 188-189; 585 N W2d 357 (1998) (trial court’s failure to read CJI2d 5.5 and 5.6 regarding accomplice testimony was not error where the witnesses were not accomplices as to the crimes for which the defendant was on tri al). In addition, the trial court instructed the jury on factors to consider when evaluating a wi tness’s credibility, including factors such as a witness’s bias, prejudice, or personal intere st in how the case is decided, and whether the witness has “any special reason to tell the truth o r any special reason to lie. As a whole, the jury instructions fai rly presented the framework for addressing witness credibility issues and sufficiently protected defendant’s rights. Therefor e, defendant has not established a plain error. To the extent that defendant argues that M Crim J I 5.6 would have been appropriate based on the testimony of another prosecution witness who gave limited testimony at trial pursuant to an immunity agreement, defendant’s cursory argument is insufficient to establish a plain error.-8- C. INCONSISTENT STATEMENTS

Defendant also argues that the trial court improperly read for mer CJI2d 4.5, now M Crim JI 4.5, regarding the use of a witness’s prior inconsistent sta tement, without explaining to the jury which of Dudley’s prior statements could be used only for impeachment purposes and which could be considered as substantive evidence. The record reflec ts that the trial court granted defense counsel’s request for t he instruction, and defense coun sel affirmatively expressed his satisfaction with the instructions as read by the trial court t o the jury. Therefore, defendant has waived this claim of instructional error. Kowalski , 489 Mich at 504-505. Even if the issue was only forfeited, and not waived, defendant would not be entitled to appellate relief unless he can establish an outcome-determinative plain error. Vaughn, 491 Mich at 665. Defendant does not explain how any prior inconsistent statement, if considered as substantive evidence, was prejudicial. Accordingly, defendant has not met his burden of establishing an outcomedeterminative error.

D. DURESS

Lastly, we reject defendant’s argument that the trial court er red by failing to sua sponte instruct the jury on the defense of duress in accordance with f ormer CJI2d 7.6, now M Crim JI 7.6. Defendant argues that a dur ess instructi on is supported b y his testimony that he continued to drive the Expedition after the shooting because he felt under d uress. But duress is not a defense to assault with intent to commit murder. People v Henderson , 306 Mich App 1, 7; 854 NW2d 234 (2014). Furthermore, the alleged duress was used to explai n defendant’s conduct after the charged assaults. It was not o ffered to explain defendant’s al leged participation in the actual assaults. Accordingly, defe ndant’s testimony did not support aduress instruction.

VI. INEFFECTIVE ASS ISTANCE OF COUNSEL

Defendant also raises several claims of ineffective assistance of counsel. Because defendant failed to raise these claims in a motion for a new tr ial or request for a Ginther 3 hearing, and because this Court previously denied defendant’s m otion to remand, our review of the claims is limited to errors apparent from the record. People v Horn , 279 Mich App 31, 38; 755 NW2d 212 (2008); People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002). Although defendant alternatively re quests that this Court reman d the case for a Ginther hearing, because defendant has not set forth any additional facts to be established on remand, such relief is not warranted. See MCR 7.211(C)(1)(a)(ii); People v Chapo , 283 Mich App 360, 369; 770 NW2d 68 (2009); People v Williams
, 275 Mich App 194, 200; 737 NW2d 797 (2007).

Ineffective assistance of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo. LeBlanc , 465 Mich at 579. To establish ineffective assistance of counsel, defendant bears the burden o f showing both deficient performance and prejudice. People v Carbin , 463 Mich 590, 599-600; 623 NW2d 884 (2001). Counsel is strongly presumed to have rendered adequate assistan ce and to have made all

3 People v Ginther
, 390 Mich 436; 212 NW2d 922 (1973).-9- significant decisions in the exercise of reasonable professiona l judgment. Vaughn, 491 Mich at 670. Defendant must establish that counsel’s performance fell below an objective standard of reasonableness and that there i s a reasonable probability that, but for counsel’s erro r, the result of the proceeding would have been different. Id. at 669.

Defendant argues that defense counsel was ineffective by faili ng to discuss trial strategy with him. He argues that this deficiency is reflected in defen se counsel’s opening statement and that it affected his trial testimony by forcing him to deny certain things that were asserted in defense counsel’s opening statement.

Where a defendant is represented by counsel, matters of trial strategy are entrusted to defense counsel. People v Traylor , 245 Mich App 460, 463; 628 NW2d 120 (2001). But defense counsel’s strategy must be sound, and the decisions rea ched must be objectively reasonable. People v Trakhtenberg , 493 Mich 38, 52; 826 NW2d 136 (2012). Counsel has a duty to make reasonable investigat ions or to reasonably decide that particular investigations are
unnecessary. Id. ; see also People v Ackley , __ Mich __, __; __ NW2d __ (2015) (Docket No. 149479); slip op at 7. Defense counsel must prepare, investiga te, and present all substantial defenses. People v Kelly
, 186 Mich App 524, 526; 465 NW2d 569 (1990). But regardless of whether defense counsel decides that defendant should not testi fy and advises defendant of this decision, the ultimate decision re garding whether to testify re sts with the defendant. People v Bonilla-Machado , 489 Mich 412, 419; 803 NW2d 217 (2011).

The purpose of an opening statement is to make a full and fair statement of that party’s case and the facts the party intends to prove. MCR 2.507(A). The scope of opening statement is among the strategic decisions made by defense counsel at trial. People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). The decision whether to concede certain matters at trial, including elements of the charged offenses, is also a matter of trial strategy. Chapo , 283 Mich App at 369-370.

The nature and scope of defense counsel’s pretrial investigati on is not apparent from the record. However, defense counsel would have had access to the same information that was available to defendant’s first a ttorney. The record also indic ates that defendant testified at trial against the advice of counsel. Defense counsel’s opening state ment reflects a strategy of attacking the sufficiency and quality of the prosecution’s evid ence. Defense counsel argued that the prosecutor would not be abl e to prove that the gunshots wer e fired from the same vehicle that cut off the Range Rover outside the casino, but further argued that even if it was the same vehicle, the prosecutor would not be able to show that defendan t did anything more than drive the vehicle. Defense counsel also asserted that the prosecutor was going to offer Avantis Parker’s testimony as a “desperate” measure, because the prosec utor knew that proof beyond a reasonable doubt was lacking, but that Parker was a drug dealer , armed robber, and murderer who had no credibility.

Although there are times when a defense attorney serves the cl ient’s interest by making a concession in opening statement, People v Wise , 134 Mich App 82, 98; 351 NW2d 255 (1984), defendant has failed to establish that defense counsel engaged in unsound trial strategy by proposing to hold the prosecution to its burden of proof, even if that strategy was not specifically discussed with defendant befor e trial. Although defendant asse rts that defense counsel’s opening-10- statement put him in a position of having to admit that certain statements were not true, defendant cites no factual support for this argument. A defend ant may not leave it to this Court to search for factual support for a claim. People v Petri , 279 Mich App 407, 413; 760 NW2d 882 (2008).

In addition, defense counsel appr opriately modified his strate gy in closing argument to conform to defendant’s testimony that he was merely present. C ounsel asserted that defendant could have declined to testify and held the prosecution to its obligation to prove its case, but explained that defendant “couldn’t sit there and let you labor under the assumption that he was not there. He needed to tell you what happened.” Considering counsel’s strategy in light of the record as a whole, defendant has not overcome the presumption t hat counsel’s strategy was objectively reasonable, or shown that he was prejudiced by the strategy employed. The fact that a strategy does not work does not establish ineffective assistance of counsel. People v Matuszak
, 263 Mich App 42, 61; 687 NW2d 342 (2004).

We also reject defendant’s argument that defense counsel’s ope ning statement was ineffective because it opened the door to Parker’s testimony re garding defendant’s involvement in Charles’s murder, thereby lead ing to the consciousness-of-gu ilt instruction. However, the record discloses that regardless of defense counsel’s opening s tatement, the prosecutor intended to use Parker’s testimony to es tablish, at a minimum, defendant ’s involvement in trying to bribe Charles to keep him from testifying against defendant. That ev idence alone would have supported a consciousness-of-guilt instruction. In addition, i t is apparent from defense counsel’s opening statement that he wanted to show Parker’s involvement i n Charles’s murder to further attack his credibility. Counsel later elicited testimony from Parker that he hoped that his testimony in this case would help him at sentencing for his sec ond-degree murder conviction related to Charles’s murder. C ounsel’s decision to pursue that subject matter was clearly a matter of trial strategy, and, wh ile perhaps a close call, defe ndant has not overcome the strong presumption that counsel exercis ed reasonable professional judg ment. Vaughn , 491 Mich at 670. Therefore, defendant is not entit led to a new trial based on th is claim of ineffective assistance of counsel.

Defendant also argues that defense counsel was ineffective for not requesting a duress instruction. As previously indicated, defendant was not entitl ed to a duress instruction. Counsel is not ineffective for failing to make a meritless request. Unger , 278 Mich App at 255-257.

Lastly, defendant argues that defense counsel’s performance wa s deficient because he did not ask the trial court to reread the aiding and abetting jury instructions in re sponse to a jury question during deliberations. We disagree. Counsel did not o bject to having the court reread the aiding and abetting instruct ions, but appropriately observe d that it would not answer the jury’s question. The jury only inquired whether there is a dif ference between a person who is guilty as an aider or abettor, or as a direct participant. Def endant does not challenge the trial court’s response, which accurately informed the jury that there is “no difference” between the two. The jury’s limited question did not express confusion reg arding what consti tutes aiding or abetting in the first instance. Defense counsel was not ineffe ctive for not insisting that the trial court reread jury instructions that would not have specificallyanswered the jury’s question.-11- VII. SENTENCING

Defendant next argues that he i s entitled to resentencing unde r Alleyne v United States
, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), because the trial court relied on facts not admitted by defendant or found by th e jury to score the offense variables (OVs) of the sentencing guidelines. Because defendant failed to raise this issue at se ntencing, our review is limited to plain error affecting defenda nt’s substantial rights. People v Lockridge , __ Mich __, __; __ NW2d __ (2015) (Docket No. 149073); slip op at 30.

In Lockridge , __ Mich at __; slip op at 1-2, our Supreme Court held that Mi chigan’s sentencing guidelines are constitutionally deficient under Alleyne to the extent that “the guidelines require judicial fact-findings beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e. the ‘mandatory minimum’ sentence under Alleyne .” To remedy this violation, the Court held that a guidelines range calculat ed in violation of Alleyne is advisory only. Id. at __; slip op at 2. In this case, however, the trial court was ultimately not cons trained by any mandatory minimum sentence under the guidelines for defe ndant’s conviction of assault with intent to murder Charles, because the trial court departed upward from the guidelines. Therefore, defendant is unable to establish that he was prejudi ced by any judicial fact-finding in scoring the OVs, and resentencing or a remand is not warranted. Id. at __; slip op at 32-33 n 31. And while the trial court imposed a sentence within the guideli nes range for the conviction of assault with intent to murder D udley, this lesser sentence is t o be served concurrently with defendant’s sentence for the assault against Charles. Therefor e, because any judicial fact-finding in determining the guidelines range for the conviction involvin g Dudley will not subject defendant to a longer period of i ncarceration, any error will n ot affect defendant’s substantial rights and resentencing or a remand is not warranted. People v Kimble , 470 Mich 305, 312-313; 684 NW2d 669 (2004).

Defendant also challenges the t rial court’s departure sentence for the offense against Charles on the ground that the departure was based on the trial court’s belief that defendant was involved in the murder of Charles. Defendant argues that the u pward departure for that reason violates his double jeopardy protections because he would be su bject to a life sentence if he was convicted of the murder charge. 4 We disagree.

The prohibition against double jeopardy in US Const, Am V, and Const 1963, art 1, § 15, protects individuals against successive prosecutions and multip le punishments for the same offense. People v Miller , __ Mich __, __;__ NW 2d __ (2015) (Docket No. 149502); slip op at 3- 4. To the extent that defendant relies on the protection again st multiple punishments for the same offense, we find no support for his claim because this pro tection is designed to confine sentences to limits established by the Legislature. Id. at __; slip op at 4. “A sentencing court may consider the facts underlying uncharged offenses, pending c harges, and acquittals.” People

4 Again, defendant has now been co nvicted of first-degree murder and other offenses related to Charles’s murder.-12- v Parr , 197 Mich App 41, 46; 494 NW2d 768 (1992). In People v Gibson , 219 Mich App 530, 535; 557 NW2d 141 (1996), this Court held:

While we acknowledge that the D ouble Jeopardy Clauses of the U nited States and Michigan Constitutions protect against multiple puni shment for the same offense, we conclude that the score a defendant receives o n an offense variable is not a form of punishment.

. . . Because the guidelines are merely a tool for assessing the pro per punishment, they are not, in and of themselves, a form of punis hment. Accordingly, we conclude that the scoring of the guidelines doe s not implicate double jeopardy issues.

By analogy, we conclude that the trial court’s upward departur e from the guidelines on the basis of defendant’s perceived involvement in Charles’s mur der does not implicate double jeopardy concerns.

VIII. DEFENDANT’S STANDARD 4 BRIEF

Defendant raises additional issues in a pro se Standard 4 brie f, filed pursuant to Supreme Court Administrative Ord er No. 2004-6, Standard 4, none of whic h require appellate relief.

A. TRIAL COURT ERRORS

Initially, defendant raises several claims of trial court erro r. He first argues that the trial court erred in admitting Charles’s out-of-court statements and pretrial identification. Defendant contends that this evidence was not admissible under MRE 804(b) (6) and that its admission violated his constitutional ri ght of confrontation. We disagre e.
We review a preserved evidentiary issue for an abuse of discre tion. Unger , 278 Mich App at 216. We review constitutional issues de novo. LeBlanc , 465 Mich at 579. A trial court may determine preliminary questions of fact relating to the adm issibility of evidence. People v Burns , 494 Mich 104, 117 n 39; 832 NW2d 738 (2013). In making its d etermination, the trial court is not bound by the Rules of Evidence, except for privile ges. MRE 104(a); People v Barrett , 480 Mich 125, 137; 747 NW2d 797 (2008). The proponent of dis puted evidence has the burden of establishing foundational elements of fact by a prepo nderance of the evidence. In re Brock , 193 Mich App 652, 669; 485 NW2d 110 (1992), rev’d on other gr ounds 442 Mich 101 (1993).

The Confrontation Clause only applies to statements used as su bstantive evidence at trial. People v Nunley , 491 Mich 686, 697; 821 NW2d 642 (2012). One of its core prot ections is to preclude admission of hearsay evidence that is testimonial in n ature unless the declarant appears at trial or the defendant had a prior opportunity for cross-examination. Id. at 697-698. But forfeiture by wrongdoing is a recognized exception to the SixthAmendment’s right to crossexamine adverse witnesses. Burns , 494 Mich at 113-114. The specific intent necessary to apply that exception has been incorporat ed into the hearsay exceptionin MRE 804(b)(6). Id. at 113.-13- “To admit evidence under MRE 804(b)(6), the prosecution must sh ow by a preponderance of the evidence that: (1) the defendant engaged in or encouraged wrong doing; (2) the wrongdoing was intended to procure the declarant’s unavailability; and (3) the wrongdoing did procure the unavailability.” Id. at 115.

In this case, defense counsel asked the trial court to reconsi der its earlier ruling to admit Charles’s statements and identif ication of defendant under the forfeiture rule on the ground that the witness on whom the prosecutor relied to establish the foun dation for the evidence had changed from Sophie Peak to Parker, because Peak had offered pe rjured testimony. Defense counsel did not dispute that Parker’s testimony at defendant’s preliminary examination in the murder case was sufficient to e stablish the f oundational elemen ts to admit Charles’s pretrial statements in this case under the forfeiture by wrongdoing rule , but questioned Parker’s credibility and asked the trial court to make a ruling under th e preponderance of the evidence standard. To the extent that the trial court erred by declinin g to reconsider the admissibility of the evidence based on the change in founda tional facts, reversa l is not warranted because the trial court reached the right result by allowing the evidence. People v Goold , 241 Mich App 333, 342 n 3; 615 NW2d 794 (2000). The court was made aware of the chan ge in foundation for admitting the evidence, the new foundational basis for admittin g the evidence under the forfeiture by wrongdoing rule—Parker’s testimony—was sufficient to support admission of the evidence under that rule, and defendant raised only a credibili ty challenge to Parker’s testimony. Even if the trial court should have made a credibility determin ation, it is apparent that it deemed Parker’s allegations as credible because it relied on that evid ence to justify a departure from the sentencing guidelines range. The refore, defendant has not established that the trial court’s failure to explicitly consider Parker’s credibility when refusi ng to reconsider its earlier ruling requires reversal.

Defendant also argues that the trial court erred in allowing t he prosecutor to introduce Parker’s testimony concerning defendant’s involvement in the at tempted bribery and subsequent murder of Charles. Defendant argues that this evidence was notrelevant under MRE 401 and was unfairly prejudicial under MRE 403. As previously indicate d, the evidence was relevant because it was probative of defendant’s consciousness of guilt for the charged offenses. In addition, while not amounting to ineffective assistance, defens e counsel opened the door to evidence regarding defendant’s involvement in Charles’s murder in his opening statement. Accordingly, there was no plain evidentiary error. Vaughn , 491 Mich at 664-665; Carines , 460 Mich at 763. We also reject def endant’s argument that the tr ial court should have corrected defense counsel’s opening stat ement by enforcing its earlier ru ling in limine to limit Parker’s testimony only to the alleged br ibery. A trial court may modif y its evidentiary rulings as events at trial unfold. People v Boyd , 470 Mich 363, 369; 682 NW2d 459 (2004). Defense counsel’s strategy decision to open the door to the evidence to further a ttack Parker’s credibility justified modification of the trial court’s earlie r ruling.

Next, there is no merit to defendant’s argument that the trial court was obligated to correct the prosecutor’s allege d misconduct in opening statemen ts when making statements of fact to infer that defendant par ticipated in the charged crimes . Although a trial court has a duty to control the proceedings, MCL 768.29, the prosecutor’s challe nged remarks fell within the scope and purpose of an opening statement, MCR 2.507(A). And t he facts recited by the prosecutor and later introduced a t trial supported an inference that defendant was not merely-14- present, but rather was involved in the commission of the charg ed crimes. Accordingly, the prosecutor’s statements were not improper. People v Roscoe , 303 Mich App 633, 649; 846 NW2d 402 (2014). Furthermore, the trial court instructed the j ury that the “[l]awyer’s statements and arguments are not evidence,” which was sufficient to protec t defendant’s substantial rights. Jurors are presumed to have follo wed the court’s instructions. Unger , 278 Mich App at 235.

Defendant also argues that the trial court violated his right of confrontation when it excused Detective Joseph White before defense counsel finished cross-examination. Because there was no defense objection when Detective White was excused , this issue is unpreserved. See Carines , 460 Mich at 762 n 7. Considering the absence of an objection and the fact that the trial court later ruled that Detective White could be recalled for further testimony if desired, we find neither a plain error, nor any basis for concluding that d efendant’s substantial rights were affected. Id. at 763.

Lastly, having found no actual errors by the trial court, we r eject defendant’s claim that the cumulative effect of the trial court’s errors deprived defe ndant of a fair trial. People v Bahoda , 448 Mich 261, 292 n 64; 531 NW2d 659 (1995); People v Knapp , 244 Mich App 361, 388; 624 NW2d 227 (2001).

B. PROSECUTORIAL MISCONDUCT

Defendant raises several issues involving the prosecutor’s con duct, none of which were preserved for appeal. Therefore, our review of these issues is limited to plain error affecting defendant’s substantial rights. Vaughn, 491 Mich at 664-665.

Defendant first challenges the prosecutor’s charging decision. He argues that his mere presence during the shooting did not justify charging him with assault with intent to commit murder. “The prosecu tor has discretion to bring any charges supported by the evidence.” People v Nichols , 262 Mich App 408, 415; 686 NW2d 502 (2004). “That discretionis abused only if a choice is made for reasons that are ‘unconstitutional, illegal, or ultra vires[,]’ ” and we “thus review a charging decision under an ‘abuse of power’ standard, questioning whether a prosecutor has acted in contravention of the constitution or the law.” People v Barksdale , 219 Mich App 484, 488; 556 NW2d 521 (1996) (citation omitted). We previousl y determined that the trial evidence was sufficient to support defendant’s two convictions for assault with intent to commit murder. Although defendant was als o charged with possession of a firearm during the commission of a felony, and acquitted of that charge, consideri ng the evidence of the multiple gunshots and the evidence supporting defendant’s involvement in the offense, the prosecution’s decision to charge defendant with felony-firearm was not plain error. There was no abuse of power, given that the prosecuti on did not act in contravention of the constitution or the law.

With regard to defendant’s next claim concerning former Michig an State Detective Sergeant Greenway’s February 12, 2013 interview of Dudley, we f ind no record support for defendant’s claim that Dudley identified defendant in a photogr aphic lineup. To the contrary, Detective Kevin Nance testified at trial that the photographic lineup shown to Dudley did not include defendant’s photograph. We therefore reject defendant’ s unpreserved claim of prosecutorial misconduct premis ed on an alleged suggestive phot ographic lineup.-15- For the reasons addressed in part VIII(A) of this opinion, we also reject defendant’s argument that the prosecutor im properly obtained a conviction b y making statements of fact in opening statement that were not supported by the evidence.

In addition, we find no support for defendant’s argument that the prosecutor used a false identification of him by Dudley a t trial to obtain a conviction . Although the district court found that Dudley’s identification tes timony at defendant’s prelimina ry examination lacked credibility, the jury was the ultimate trier of fact. People v Northey , 231 Mich App 568, 575; 591 NW2d 227 (1998); People v Laws , 218 Mich App 447, 452; 554 NW2d 586 (1996). Moreover, considering the other trial evidence, including defendant’s adm ission in his own testimony that he was the driver of the Expedition, Dudley’s identification te stimony clearly was not necessary for the prosecution to obtain a conviction. Therefore, we find neither plain error nor prejudice. The prosecutor did not knowingly use false testimony to obtain a conviction. See generally People v Smith , __ Mich __, __; __ NW2d __ (2015) (DocketNo. 148305); slip o p at 7; People v Lester , 232 Mich App 262, 276-277; 591 NW2d 267 (1998), overruled on other grounds People v Chenault , 495 Mich 142; 845 NW2d 731 (2014).

We also reject’s defendant’s argument that the prosecutor impr operly introduced Charles’s 911 call to elicit sympathy from the jury. The call was relevant because it had a tendency to make it more probable than not that the incident oc curred in the manner claimed by Charles and Dudley. MRE 401. It tended to show that Charles a nd Dudley were on the side of the freeway after they were shot and that they were in need of immediate assistance for their gunshot injuries. It helped explain why they were gone when th e state police arrived at their vehicle. Although the call also indicated that Charles was in a heightened emoti onal state, that did not render the evidence substantially more prejudicial than probative, MRE 403, particularly considering the trial court’s instruction to the jury, which th e jury is presumed to have followed, that it was not to let sympathy or prejudice influence its deci sion. Unger , 278 Mich App at 235. Therefore, there was no plain er ror affecting defendant’s subst antial rights. Vaughn, 491 Mich at 664-665.

Defendant also argues that the prosecutor introduced Parker’s testimony for the sole purpose of introducing evidence that Charles was murdered and that defendant was charged with his murder. As discussed previo usly, defense counsel opened th e door to this evidence. Although defense counsel used the evidence to attack Parker’s c redibility, the evidence was also probative of defendant’s consciousness of guilt. Accordingly, there was no plain error. See People v Dobek , 274 Mich App 58, 72; 732 NW2d 546 (2007) (a prosecutor’s good -faith efforts to admit evidence does not constitute misconduct).

Lastly, because defendant has f ailed to establish any actual m isconduct by the prosecutor, we reject his argument that the cumulative effect of the prosec utor’s misconduct requires a new trial. Bahoda , 448 Mich at 292 n 64; Knapp , 244 Mich App at 388.

C. SUFFICIENCY OF THE EVIDENCE

As previously discussed in sect ion III, the evidence was suffi cient to support defendant’s convictions of assault with i ntent to commit murder.-16- D. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant presents additional claims of ineffective assistance of counsel in his Standard 4 brief. Because these claims were not raised in the trial cou rt and this Court denied defendant’s pro se motion to remand, People v Wimberly , unpublished order of the Court of Appeals, entered April 29, 2015 (Docket No. 321490), our review of the claims is limited to errors apparent from the record. Horn , 279 Mich App at 38; Davis , 250 Mich App at 368.

We find no merit to defendant’s argument that defense counsel was ineffective for failing to move to suppress Dudley’s in-court identification because itwas tainted by a suggestive photographic lineup. As previously indicated, the record discl oses that defendant’s photo was not included in the photographic lineup. Counsel was not requi red to file a futile pretrial motion. People v Strickland, 293 Mich App 393, 398; 810 NW2d 660 (2011). And considering th at the jury was ultimately responsible for determining Dudley’s credib ility, Law, 218 Mich App at 452, defense counsel was not ineffec tive for failing to move to supp ress Dudley’s in-court identification based on the district court’s assessment of her credibility at the preliminary examination. In addition, Dudley ’s identification was not nece ssary to sustain defendant’s convictions, because other evidence, including defendant’s own admission that he was the driver of the Expedition, established his identity.

We also reject defendant’s argument that defense counsel was i neffective because he failed to challenge the district court’s bindover decision at t he preliminary examination. The purpose of a preliminary examination is to determine if a crime was committed and whether there is probable cause to believe that the defendant committed the crime. Law , 218 Mich App at 451-452. The district court was clearly aware of the “mere presence” issue when rendering its decision to bind defendant over for trial on charges of assault with intent to commit murder. Because there was sufficient evidence to support the bindover d ecision, counsel was not ineffective for failing to move to quash or dismiss those charg es. People v Darden , 230 Mich App 597, 605; 585 NW2d 27 (1998).

Defendant has also failed to est ablish that defense counsel wa s ineffective for failing to move to suppress evidence of the 911 call made by Charles at th e scene of the shooting. As previously indicated, the eviden ce was not inadmissible. Couns el was not required to make a futile objection. Strickland , 293 Mich App at 398. Similarly, defendant has failed to esta blish that defense counsel was ineffective for not moving to suppress Parker’s testimony, which was relevant to show defendant’s consciousness of guilt. Further, as previously indicated, defendant has not overcome the presumption that defense counsel opened th e door to the evidence regarding Charles’s murder as a matter of sound trial strategy. To the extent that defendant argues that defense counsel should have moved for a mistrial af ter opening the door to this evidence, his argument is without merit because counsel cannot be deemed ineffective for failing to move for a mistrial base d on his own strategy decision.

Next, defendant complains that d efense counsel did not seek to further cross-examine Detective White after the trial c ourt indicated that he could b e recalled as witness. Decisions regarding whether to call or how to question a witness are pres umed to be matters of strategy. Horn , 279 Mich App at 39. Because defendant fails to explain how f urther questioning could have aided his case, this claim of ineffective assistance of co unsel must fail.-17- Defendant also argues that defense counsel was ineffective for failing to investigate and produce the results of drug and alcohol testing on the victims, failing to investigate and produce 911 phone calls made by uninvolved eyewitness, failing to inves tigate and produce phone records, and failing to investig ate and produce “alibi” witness es. These arguments fail because defendant has not shown that the a lleged evidence actually exis ts. Carbin , 463 Mich at 600.

In addition, after reviewing the affidavits of the alleged “al ibi” witnesses that were filed by defendant in support of his motion to remand, we conclude th at remand for a Ginther hearing is not warranted because we are not persuaded that the affidavi ts establish a reasonable probability that the result of the trial would have been differ ent if the witnesses had testified at trial consistent with their affidavits. None of the affiants c ould have supported an alibi defense because they do not place defendant elsewhere than at the scene of the shooting. People v McGinnis , 402 Mich 343, 345; 262 NW2d 669 (1978). The affidavits of Ti sha Austin and Lawrence Mathews might have corroborated portions of defendant’ s trial testimony regarding his version of the circumstan ces of the shooting. But Austin’s averments about her phone conversation with defendant while he was driving the Expedition are not substantial enough to demonstrate a reasonable probab ility of a different outcome. Apart from the fact that her relationship with defendant affect ed her credibility, Austin wa s not an eyewitness and would not be able to explain how the vehicles could have become stuck tog ether during the shooting, and then become unstuck as defendant claimed in his testimony. And while Mathews averred that he fired the gunshots at the Range R over, the prosecutor’s aiding and abetting theory did not require proof that defendant was a shooter. In addition, defense couns el could not have compelled Mathews to testify, see People v Giacalone , 399 Mich 642, 645; 250 NW2d 492 (1977), and Mathews did not indicate in his a ffidavit that he would have be en willing to incriminate himself by testifying to the alleged fact s at the time of defendant’s t rial.

With respect to defense counsel’s performance at sentencing, d efendant’s argument is, in substance, a challenge to the trial court’s decision denying co unsel’s motion to withdraw. The appointment of substitute counsel is warranted only upon a show ing of good cause and where substitution would not unreasonabl y disrupt the judicial proces s. Traylor , 245 Mich App at 462. Although retained counse l expressed disinterest in advocating f or defendant at sentencing, he agreed to do so. Defendant has failed to establish that the tr ial court abused its discretion in denying the motion to withdraw. Id.

Lastly, defendant argues that d efense counsel was ineffective for failing to move to correct an invalid sentence, but fails to identify any basis fo r finding his sentences invalid. Accordingly, this claim must fail.

Affirmed.

/s/ Elizabeth L. Gleicher /s/ David H. Sawyer /s/ William B. Murphy