PEOPLE OF MI V PAT T PATTERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 1, 2000
Plaintiff-Appellee,
v
No. 211084
Clinton Circuit Court
LC No. 97-006402-FC
PAT T. PATTERSON,
Defendant-Appellant.
Before: Whitbeck, P.J., and Hoekstra and Owens, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of first-degree criminal sexual conduct, (CSC I),
MCL 750.520b(1)(e); MSA 28.788(2)(1)(e), and possession of a firearm during the commission of a
felony, MCL 750.227b; MSA 28.424(2). He was sentenced to the mandatory two-years’
imprisonment for the felony-firearm conviction, to be followed by eight to twenty years’ imprisonment
for the CSC I conviction with credit for thirty-two days served. Defendant appeals as of right. We
affirm.
Defendant first argues he was denied effective assistance of counsel due to defense counsel’s
conflict of interest. Because defendant did not move for a Ginther1 hearing or a new trial on the basis
of ineffective assistance of counsel, our review is limited to mistakes that are apparent on the existing
record. People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667 (1996). For a defendant to
successfully establish a claim of ineffective assistance of counsel, a defendant must show that (
1)
counsel’s performance fell below an objective standard of reasonableness, (2) there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been different, and (3)
the result of the proceeding was fundamentally unfair or unreliable. People v Stanaway, 446 Mich
643, 687-688; 521 NW2d 557 (1994); People v Poole, 218 Mich App 702, 717-718; 555 NW2d
485 (1996). In an ineffective assistance of counsel claim premised on conflict of interest, prejudice will
be presumed only if the defendant shows that counsel actively represented conflicting interests and that
an actual conflict of interest adversely affected his attorney’s performance. People v Smith, 456 Mich
543, 556-557; 581 NW2d 654 (1998), citing Strickland v Washington, 466 US 668, 692; 104 S Ct
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2052; 80 L Ed 2d 674 (1984), and Cuyler v Sullivan, 446 US 335, 348-350; 100 S Ct 1708; 64 L
Ed 2d 333 (1980).
Effective assistance of counsel is presumed. People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999). Moreover, there is a strong presumption that counsel’s decisions constituted
sound trial strategy. Stanaway, supra at 687. Decisions regarding what evidence to present and
whether to call witnesses are presumed to be matters of trial strategy. People v Mitchell, 454 Mich
145, 163; 560 NW2d 600 (1997); Rockey, supra at 76. The failure to call witnesses or present other
evidence can constitute ineffective assistance of counsel only when it deprives the defendant of a
substantial defense that would have affected the outcome of the proceeding. People v Daniel, 207
Mich App 47, 58; 523 NW2d 830 (1994).
The Michigan Rules of Professional Conduct prohibit an attorney from acting as an advocate at
a trial in which the attorney is likely to be a necessary witness, subject to a few exceptions. MRPC
3.7(a).2 Moreover, the rules provide that an attorney shall not represent a client if the representation is
materially limited by the attorney’s own interests, unless the attorney reasonably believes the
representation will not be adversely affected and the client consents after consultation. MRPC 1.7(b).3
The record in this case indicates that defense counsel was present at a meeting between
defendant and the complainant, that defense counsel represented to the court that the complainant made
a number of untruthful statements, and that counsel discussed with his client the potential that he might
need to be a witness on behalf of defendant in order to impeach the credibility of the complainant
regarding these alleged lies. An in-chambers conference was held regarding this concern and, following
this discussion, the parties stipulated to the fact that the complainant lied regarding whether she wore a
microphone at the meeting with defendant and defense counsel. The complainant also acknowledged
her lack of truthfulness on this point during her testimony. Neither counsel nor defendant raised any
further request that counsel be allowed to testify at trial or asked for any additional relief; nor did either
counsel or defendant object to the resolution of this issue through the use of the stipulation.
Accordingly, under the specific language of MRPC 1.7, whether the complainant lied about wearing a
microphone was an “uncontested issue” and no actual conflict existed between trial counsel’s need to
represent defendant and the need for him to be a witness. Therefore, trial counsel was not a
“necessary” witness under MRPC 1.7.
We further note that defendant did not seek a post-conviction evidentiary hearing in the trial
court. While defendant did seek a remand from this Court to make a record concerning this claim,
defendant failed to present affidavits from his trial counsel or himself in support of the motion to remand
setting forth the substance of what he would demonstrate at an evidentiary hearing. MCR
7.211(C)(1)(a)(ii).4 At trial, defendant was apparently satisfied with the decision to utilize a stipulation
rather than his counsel’s testimony to demonstrate the complainant’s untruthfulness. The decision to use
a stipulation in lieu of witness testimony is a matter of trial strategy and we do not second-guess trial
counsel on such matters. People v Pickens, 446 Mich 298, 330; 521 NW2d 797 (1994). Defendant
has failed to overcome the strong presumption that counsel’s decision constituted sound trial strategy.
Stanaway, supra at 687. We therefore decline to accept defendant’s invitation to remand this case for
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an evidentiary hearing where defendant has failed to provide this Court with any basis from which it
could conclude that such a remand is appropriate.
Defendant also argues that his sentence was disproportionate. We disagree. This Court
reviews sentencing decisions for an abuse of discretion. People v Milbourn, 435 Mich 630, 635-636;
461 NW2d 1 (1990); People v McCrady, 213 Mich App 474, 483; 540 NW2d 718 (1995).
Criminal sentences must be proportionate to the seriousness of the offense and must take into account
the circumstances of both the offense and the offender. Milbourn, supra at 636. A sentencing court
that fails to adhere to the principle of proportionality abuses its discretion. Id.; McCrady, supra at 483.
A sentence that is within the guidelines is presumptively valid and proportionate. People v Broden, 428
Mich 343, 354-355; 408 NW2d 789 (1987); People v McElhaney, 215 Mich App 269, 285-286;
545 NW2d 18 (1996); People v Jones, 201 Mich App 449, 457; 506 NW2d 542 (1993). However,
a sentence that is within the guidelines may constitute an abuse of discretion where unusual
circumstances exist. Milbourn, supra at 661; Broden, supra at 354. The term “unusual
circumstances” has been construed to mean “uncommon” or “rare.” People v Sharp, 192 Mich App
501, 505; 481 NW2d 773 (1992). A defendant’s employment or lack of prior criminal record do not
constitute unusual circumstances. Daniel, supra at 54.
Defendant was sentenced to eight to twenty years for CSC I. The guidelines’ recommended
minimum sentence range was 96 to 240 months. Thus, the minimum sentence of eight years (96
months) is within the guidelines. Because the sentence imposed was within the guidelines, it is
presumptively valid and it is defendant’s burden to come forward with unusual circumstances to
establish that the sentence is disproportionate notwithstanding the fact that it meets the guidelines.
Broden, supra at 354-355; Jones, supra at 457. Defendant’s proffered circumstances of no prior
criminal record, military service, gainful employment, elderly age, and remorsefulness are not uncommon
or rare circumstances. Furthermore, the sentencing court did note defendant’s mitigating personal
characteristics, but properly considered as well the severity and nature of the crime, including
defendant’s use of a weapon to force his complainant to engage in sexual acts. Thus, to the extent that
there were mitigating or unusual circumstances, the sentencing court considered them and balanced them
against the negative circumstances. Finally, the trial court appears to have applied defendant’s mitigating
factors because the minimum sentence imposed is at the bottom of the guidelines’ suggested minimum
sentence range. There was ample justification for the sentence imposed and the sentencing court did not
abuse its discretion.
Affirmed.
/s/ William C. Whitbeck
/s/ Joel P. Hoekstra
/s/ Donald S. Owens
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
MPRC 3.7 provides in relevant part:
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(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
3
MPRC 1.7(b) provides in relevant part:
(b) A lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer’s responsibilities to another client or to a third person, or
by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely
affected; and
(2) the client consents after consultation. . . .
4
MCR 7.211(C)(1)(a)(ii) specifically requires that a motion to remand “must be supported by affidavit
or other proof regarding the facts to be established at a hearing.” This Court may properly deny a
motion to remand that does not satisfy this prerequisite. We do not believe that a request to remand,
presented as alternative proposed relief in a party’s appellate brief, is subject to a lesser preliminary
showing.
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