PEOPLE OF MI V RANDALL SCOTT BEAUREGARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 1, 2009
Plaintiff-Appellee,
v
No. 284889
Otsego Circuit Court
LC No. 07-003819-FC
RANDALL SCOTT BEAUREGARD,
Defendant-Appellant.
Before: Murray, P.J., and Markey and Borrello, JJ.
MEMORANDUM.
Defendant appeals as of right from his conviction by a jury of four counts of first-degree
criminal sexual conduct (CSC I), MCL 750.520b(1)(a) (victim under 13 years of age), and two
counts of third-degree criminal sexual conduct (CSC III), MCL 750.520d(1)(a) (victim under 13
years of age). Defendant was sentenced as a second-offense habitual offender, MCL 769.10, to
concurrent prison terms of 210 months to 50 years for each count of CSC I, and 11 years to 22½
years for each count of CSC III. For the reasons set forth in this memorandum, we affirm. This
case is being decided without oral argument under MCR 7.214(E).
Defendant’s sole argument on appeal is that he received ineffective assistance of counsel,
by being misled by his trial counsel not to testify. Because we do not have the benefit of a
Ginther hearing in this matter,1 review is limited to the existing record. People v Brown, 279
Mich App 116, 140; 755 NW2d 664 (2008). To prove ineffective assistance of counsel,
defendant must prove “that (1) the performance of his counsel was below an objective standard
of reasonableness under prevailing professional norms, and (2) a reasonable probability exists
that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would
have been different.” People v Avant, 235 Mich App 499, 507; 597 NW2d 864 (1999).
“‘The privilege of a criminal defendant to testify is the other side of the coin on which
appears the privilege against self-incrimination. . . . If he does not elect to testify, he must be
deemed to have waived his privilege to do so.’” People v Simmons, 140 Mich App 681, 685;
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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364 NW2d 783 (1985).2 In this case, the record clearly indicates that defendant knowingly and
voluntarily waived his right to testify. It is counsel’s duty to provide reasoned and
knowledgeable legal advise, MRPC 1.4(b) (communication), 2.1 (advisor), and it is defendant’s
duty to decide how to act in light of that advice. Based on the circumstances surrounding
defendant’s prior criminal history we cannot find that counsel’s advice not to testify fell below a
standard of reasonableness, nor can we conclude that had defendant testified the outcome would
have been different or that it deprived defendant of a substantial defense.3 Accordingly,
defendant was not denied the effective assistance of counsel.
Affirmed.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Stephen L. Borrello
2
Quoting United States v Ives, 504 F2d 935, 939-940 (CA 9, 1974), vacated on other grounds
421 US 944; 95 S Ct 1671; 44 L Ed 2d 97 (1975) (vacated and remanded for consideration of the
defendant’s competence to proceed in light of Drope v Missouri, 420 US 162; 95 S Ct 896; 43 L
Ed 2d 103 (1975)).
3
See, People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004).
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