PEOPLE OF MI V DENNIS DAVID REINWAND
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 6, 1996
Plaintiff-Appellee,
v
No. 173408
LC No. 93-001908-FH
DENNIS DAVID REINWAND,
Defendant-Appellant.
Before: Hood, P.J., and Markman and A. T. Davis,* JJ.
PER CURIAM.
Defendant appeals by right his jury trial conviction of breaking and entering an occupied
dwelling with the intent to commit a larceny. MCL 750.110; MSA 28.305. Subsequent to his jury
conviction, defendant pled guilty to being an habitual offender fourth offense. MCL 769.12; MSA
28.1084. He was sentenced to a term of imprisonment of 12 to 20 years. We affirm.
Defendant’s principle contention on appeal is that he was denied the effective assistance of
appellate counsel because his initial appellate counsel failed to create a post-trial record to support
claims that defendant had been denied effective assistance of trial counsel. To find that a defendant’s
right to effective assistance of counsel was so undermined that it justifies reversal of an otherwise valid
conviction, a defendant must show that counsel’s performance fell below an objective standard of
reasonableness and that he was thereby denied a fair proceeding. People v Pickens, 446 Mich 298,
302-03; 521 NW2d 797 (1994); People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
A defendant must further show that, but for counsel’s errors, there was a reasonable probability that the
result of the proceeding would have been different. People v LaVearn, 448 Mich 207, 216; 528
NW2d 721 (1995).
Although the performance of appellate counsel may be deemed ineffective assistance of counsel,
People v Lyons, 442 Mich 895; 502 NW2d 41 (1993), defendant is not entitled to relief in the instant
case. The only prejudice defendant experienced by appellate counsel’s failure to seek a hearing to
* Circuit judge, sitting on the Court of Appeals by assignment.
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determine the effectiveness of trial counsel, People v Ginther, 390 Mich 436; 212 NW2d 922 (1973),
was the right to file a motion for a new trial without a remand from this Court. We are not convinced
that appellate counsel’s failure to file such a motion here in light of trial counsel’s conduct evidences
appellate conduct falling below an objective standard of reasonableness. Further, had a Ginther
hearing taken place by right, there is no way to know what the results would have been. Because such
results are speculative, defendant has not carried his “heavy” burden of demonstrating that he suffered
actual prejudice from the performance of his previous appellate counsel. People v Effinger, 212 Mich
App 67, 69; 536 NW2d 809 (1995). It simply cannot be assumed that the trial court would have
found that trial counsel was ineffective if defendant’s previous appellate counsel had timely filed a motion
for a new trial. Under such circumstances, defendant has not established the necessary prejudice to
enable a finding that he was denied effective assistance of appellate counsel.
In addition, once new appellate counsel was appointed, a discretionary motion to remand for
the purpose of a Ginther hearing was filed with this Court, which was denied. This Court was apprised
of defendant’s reasons why a Ginther hearing was needed but did not find them persuasive. Our
additional review of trial counsel’s performance leads us to a similar conclusion. We are not persuaded
that trial counsel’s performances fell below an objective standard of reasonableness which caused
prejudice to defendant. While trial counsel can be second-guessed on several of his decisions, we find
that he was actively engaged at trial and cognizant of significant issues. His failure, for example, to seek
a limiting instruction concerning evidence of another breaking and entering by defendant with the same
co-perpetrators on the same day as the charged offense must be viewed against the backdrop that
counsel sought by a motion in limine to exclude such evidence altogether. With respect to the testimony
of one of these co-perpetrators that he and defendant had been involved in previous “breaking and
enterings”, which testimony exceeded the court’s ruling that he could only mention having been involved
with a single previous breaking and entering on the same day as the instant offense, we find trial
counsel’s failure to object and call attention to the marginal additional impact of this testimony to be
understandable trial strategy. Nor are we prepared to find ineffective assistance on the basis that
counsel failed to object to the prosecutor’s introduction of the MRE 404(b) evidence when it was
brought to his intention only during discussion of pretrial motions in limine rather than with proper pretrial
notice.1
Defendant next argues that his sentence significantly exceeded the recommendations of the
sentencing guidelines. However, there is no relationship between the guidelines and an habitual
offender’s sentence. People v Gatewood, order of the Supreme Court, entered March 19, 1996
(Docket No. 104913); People v Haacke, ___ Mich App ___; ___ NW2d ___ (Docket No. 185082,
issued 7/5/96). Nor, under the present circumstances, where defendant had prior convictions of
felonious assault, felony-firearm, larceny in a building and breaking and entering; where defendant was
on parole at the time of the instant offense; and where a mother was home alone with a baby when
defendant violently kicked in the door of her home, do we find defendant’s sentence to be
disproportionate.
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Finally, we do not find any error by the trial court in its refusal to appoint substitute counsel for
defendant. Appointment of substitute counsel is warranted only upon a showing of good cause and
where substitution will not unreasonably disrupt the judicial process. Ginther, supra at 441. Such a
decision is reviewed for abuse of discretion. People v Mack, 190 Mich App 7, 14; 475 NW2d 830
(1992). However, we do not find this issue to be preserved. Following defendant’s objection at a
pretrial conference to his appointed counsel, the court told defendant that it also wanted to hear from his
counsel regarding defendant’s lack of satisfaction and that defendant should discuss this matter with his
counsel before the issue would be considered the court. Neither defendant nor his counsel ever raised
the matter with the court thereafter. Indeed, defendant declined his own counsel’s invitation to again
raise the matter with the court prior to opening arguments. We do not find this issue to be properly
before this Court.
Affirmed.
/s/ Harold Hood
/s/ Stephen J. Markman
/s/ Alton T. Davis
1
A court’s decision whether to admit evidence rests within its discretion. People v Taylor, 195 Mich
App 57, 60; 489 NW2d 99 (1992). The court’s decision here to admit the evidence of the prior
breaking and entering on the basis that it had occurred immediately prior to the charged offense and was
relevant to show defendant’s plan, scheme or intent was not an abuse of discretion under MRE 404(b).
People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993). Nor was its conclusion that the
probative value of this evidence outweighed any conceivable prejudicial effect. MRE 403.
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