PEOPLE OF MI V NICHOLAS RAY LUDWICK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 15, 2001
Plaintiff-Appellee,
v
No. 221833
Ingham Circuit Court
LC No. 99-074414-FH
NICHOLAS LUDWICK,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Hood and Griffin, JJ.
MEMORANDUM.
Defendant was convicted, following a jury trial, of receiving and concealing stolen
property with a value in excess of $100, MCL 750.535; MSA 28.803. He was sentenced as an
habitual offender, third offense, MCL 769.12; MSA 28.1084, to eighteen months’ to ten years’
imprisonment and appeals as of right. We affirm.
Defendant first argues that the admission of prior bad acts evidence deprived him of his
due process rights when the danger of unfair prejudice substantially outweighed any probative
value. We disagree. Defendant failed to object to the statement that defendant was in “trouble
again” and had failed to advise a friend that the property was stolen because he did not want to
“go back to prison.” Reversal of a conviction based on plain, forfeited error is warranted only
when it results in the conviction of an actually innocent defendant or when error affects the
integrity of the judicial proceedings. People v Carines, 460 Mich 750, 763-767; 597 NW2d 130
(1999). The defendant bears the burden of persuasion with respect to prejudice. Id. Defendant
has failed to meet his burden.
Defendant next argues that his sentence was disproportionate. We disagree. Sentencing
guidelines do not apply to habitual offenders. People v Hansford (After Remand), 454 Mich 320,
323-324; 562 NW2d 460 (1997). Rather, we review the sentence imposed for an abuse of
discretion. Id. We cannot conclude that the trial court abused its discretion in sentencing
defendant.
Lastly, defendant argues that trial counsel was ineffective for failing to object to the
admission of bad acts evidence and his sentence. We disagree. In order to establish a claim of
ineffective assistance of counsel based on deficient performance, defendant must overcome the
strong presumption that trial counsel’s action constituted sound trial strategy under the
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circumstances. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Defendant has
failed to meet his burden. Review of the record reveals that defense counsel failed to object to
testimony regarding defendant’s prior record, but also elicited the testimony in accordance with
his theory of the case. Douglas Smith testified that he saw defendant with the stolen ladder on
top of a vehicle and the stolen tools were in the trunk of the vehicle. Defense counsel also
elicited testimony that defendant was involved with Smith’s former girlfriend, with whom Smith
fathered a child. Defense counsel also established that the tools were taken from a locked truck,
but the truck was not vandalized in the process. Rather, it appeared that access to the truck was
gained through a key, and Smith had the key to the truck as an employee. Therefore, defense
counsel attempted to discredit Smith’s testimony by demonstrating that he had a motive to ensure
that defendant returned to prison. “A defendant may not assign error on appeal to something his
own counsel deemed proper at trial.” People v Green, 228 Mich App 684, 691; 580 NW2d 444
(1998). Counsel may not harbor error as an appellate parachute. Id.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Harold Hood
/s/ Richard Allen Griffin
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