PEOPLE OF MI V ANDREW DARNELL CAIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 3, 1997
Plaintiff-Appellee,
v
No. 193257
Recorder’s Court
LC No. 95-006318
ANDREW DARNELL CAIN,
Defendant-Appellant.
Before: O’Connell, P.J., and White and C. F. Youngblood*, JJ.
MEMORANDUM.
Defendant appeals by right his bench trial conviction for retail fraud, MCL 750.356c; MSA
28.588(3), and adjudication as a fourth offender, MCL 769.12; MSA 28.1084, resulting in a
probationary sentence.
Defendant first contends that the trial court infringed his constitutional right to be present at all
critical stages of the proceedings by reviewing a surveillance video tape, admitted into evidence as a
prosecution exhibit, in the presence of defense counsel and the prosecutor but in the absence of
defendant. The transcript reflects that the trial court’s review of the video tape occurred during the
deliberative phase of the proceeding; closing arguments had been completed, and immediately after
viewing the video tape the trial court announced its findings of fact and conclusions of law. The trier of
fact could properly have reviewed the video tape in isolation. People v Benberry, 24 Mich App 188;
180 NW2d 391 (1970). Defendant was not deprived of the right to be present at any critical stage of
the proceedings. People v Donaldson, 102 Mich App 552; 302 NW2d 229 (1980).
Second, defendant asserts that he was deprived of the effective assistance of counsel because
trial counsel failed to review the surveillance video tape with him before trial. Assuming, arguendo, that
this represents a deficiency in counsel’s quality of representation which falls below a minimally
acceptable level of professional performance, defendant has failed to show how such collaborative
review would have altered the outcome of the proceeding or led to the presentation of significantly
* Circuit judge, sitting on the Court of Appeals by assignment.
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different evidence. Accordingly, defendant has failed to establish the prejudice prerequisite to appellate
relief on this claim. People v Pickens, 446 Mich 298; 521 NW2d 797 (1994).
Finally, defendant’s sentence is challenged as disproportionate to the offense and to the
offender. As an habitual offender, defendant’s sentence is reviewed for abuse of sentencing discretion.
People v Hansford (After Remand), 454 Mich 320; ___ NW2d ___ (1997). Where as here
defendant could have been sentenced to up to fifteen years’ imprisonment as a fourth offender and was
instead sentenced to only three years’ probation, no abuse of the trial court’s sentencing discretion has
been established. The tether provision does not render the sentence disproportionate.
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Carole F. Youngblood
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