PEOPLE OF MI V TERRANCE JEROME HOLMES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 18, 2003
Plaintiff-Appellee,
v
No. 240973
Calhoun Circuit Court
LC No. 10-003641-FH
TERRANCE JEROME HOLMES,
Defendant-Appellant.
Before: O’Connell, P.J., and Jansen and Wilder, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial conviction of assault with intent to do
great bodily harm less than murder, MCL 750.84. The trial court sentenced him to a term of 38
to 120 months’ imprisonment. We affirm.
The instant case stems from allegations that defendant attacked and beat a woman to
whom he was then married.
Defendant first contends that the trial court abused its discretion in denying his motion
for an adjournment. Defendant asserts that this decision denied him the right to present a
defense and to have effective assistance of counsel. We disagree.
On October 22, 2001, defendant’s attorney filed a motion to withdraw as counsel citing a
breakdown in the attorney client relationship. While the motion to withdraw was pending,
defendant’s original attorney submitted a witness list. On January 28, 2002, the trial court
granted the motion and allowed the substitution of new counsel. Because of this, the trial date
was moved from February 12, 2002 to March 5, 2002. On February 21, 2002, defendant filed a
motion to adjourn the trial contending that he needed more time to prepare an alibi defense. In
denying the motion the trial court noted that the trial had previously been delayed because
defendant substituted new counsel. And the trial court indicated that the five week period
between the substitution and the revised trial date should have been adequate for defendant to
prepare an alibi defense when the witnesses were already known.
We review a trial court’s denial of a motion for adjournment for abuse of discretion.
People v Jackson 467 Mich 272, 276; 650 NW2d 665 (2002). This standard gives great
deference to the holdings of the trial court. In order for a decision to be overturned, based on an
abuse of discretion, the result must have been “so violative of fact and logic” that it evidences a
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“perversity of will” a defiance of judgment, or “an exercise of passion or bias.” People v Lett,
466 Mich 206, 220; 644 NW2d 743 (2002) (citations omitted).
In determining whether a trial court abused its discretion in denying a defendant’s motion
for adjournment, we consider four factors: (1) whether the defendant was asserting a
constitutional right, (2) whether the defendant had a legitimate reason for asserting the right, (3)
whether defendant was guilty of negligence, and (4) whether defendant had previously caused
the trial to be adjourned. People v Pena, 224 Mich App 650, 660-661; 569 NW22d 871 (1997),
citing People v Williams, 386 Mich 565, 575-578; 184 NW2d 337 (1972). Even if a defendant
can establish that the trial court abused its discretion based on these factors, he must still
establish that he was prejudiced by the decision. Id. For example, in People v Lawton, 196 Mich
App 341, 348; 492 NW2d 810 (1992), the defendant “asserted his right to call witnesses, had not
been negligent, and had not requested previous adjournments.” But the witness the defendant
wished to present was a codefendant who enjoyed the Fifth Amendment privilege against selfincrimination. Id. at 348-349. The trial court “had no reason to believe that [the witness] would
have surrendered this privilege to exonerate his codefendant.” Id. Therefore, no prejudice
resulted from the denial of defendant’s motion to adjourn. Id.
Under the factors set forth in Pena, supra, we find that the trial court did not abuse its
discretion. Although defendant asserts his constitutional right to call witnesses, the trial court
found that his own negligence created the need for additional time to do this. And defendant’s
trial had already been delayed to give his new attorney adequate time to prepare his defense.
Because the trial court’s decision was based on these factors, defendant’s own negligence and
the delay to give defendant’s new attorney preparation time, it is not violative of fact and logic
and does not constitute an abuse of discretion. See Lett, supra at 220.
Even if the trial court had abused its discretion in denying defendant’s motion, we find
that no prejudice resulted. Defendant requested an adjournment so that he could file his notice of
alibi in a timely manner. The trial court later refused to allow the presentation of alibi witnesses
because defendant failed to file such notice on time. But the trial court explained that this only
meant defendant could not call witnesses to testify that it was impossible for him to have been
present at the scene of the crime. The trial court allowed two witnesses to testify to
circumstances showing that, because defendant was in Atlanta around February 26, 2001, he was
unlikely to have committed the crime. As in Lawton, supra, defendant has not shown that a
different result would have occurred if the adjournment had been granted and additional
witnesses had testified.
Defendant next argues that his attorney’s failure to file a timely alibi notice constituted
ineffective assistance of counsel. We disagree.
Because no evidentiary hearing occurred, regarding ineffective assistance of counsel, we
limit review to the record at trial.1 People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96
1
Defendant filed a motion requesting a Ginther hearing, People v Ginther, 390 Mich 436; 212
NW2d 922 (1973), but this motion was denied.
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(2002). "Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). "A
judge must first find the facts, and then must decide whether those facts constitute a violation of
the defendant's constitutional right to effective assistance of counsel." Id. The trial court's
factual findings are reviewed for clear error, while its constitutional determinations are reviewed
de novo. Id.
In order to establish ineffective assistance of counsel, the attorney's performance must
have been “objectively unreasonable in light of prevailing professional norms” and “but for the
attorney's error or errors, a different outcome reasonably would have resulted.” People v
Harmon, 248 Mich App 522, 640 NW2d 314 (2001), citing People v Carbin, 463 Mich 590,
599-600; 623 NW2d 884 (2001). “The burden of establishing the factual predicate” for this type
of claim falls on the defendant. People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). The
Michigan Supreme Court stated the standard as follows:
“A convicted person who attacks the adequacy of the representation he received at
his trial must prove his claim. To the extent his claim depends on facts not of
record, it is incumbent on him to make a testimonial record at the trial court level
in connection with a motion for a new trial which evidentially supports his claim
and which excludes hypotheses consistent with the view that his trial lawyer
represented him adequately.” [Id., quoting Ginther, supra at 442-443.]
In People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990), the defendant claimed
that his trial attorney’s failure to file a timely notice of alibi deprived him of effective assistance
of counsel. This Court held that a “defendant is entitled to have his counsel prepare, investigate,
and present all substantial defenses,” those that might make a difference in the outcome of the
trial. Id. (citations omitted). But at a post trial evidentiary hearing, the defendant must
demonstrate that he “made a good faith effort to avail himself of the right and that the defense he
was deprived of was substantial.” Id.
As in the present case, the defendant in Kelly filed a post trial motion that was denied by
the trial court. Kelly, supra at 527. On appeal, this Court stated that during the hearing on this
motion, the defendant “failed to show that he was deprived of a substantial defense.” Id.
Specifically, this Court found:
There is nothing in the record showing what the proposed alibi witnesses’
testimony would have been had they been permitted to testify on the matter and,
thus, whether they would have, in fact provided an alibi for defendant. [Id.]
Based on the above finding, this Court stated, “[e]ven if defendant's trial attorneys were
ineffective by failing to file a timely notice, we nevertheless decline to reverse defendant's
conviction.” Id.
Defendant, in the present case, similarly failed to show that the lack of alibi notice
deprived him of a substantial defense. The trial court ruled on his motion for a Ginther hearing
at the start of his sentencing hearing. In arguing his motion, defendant stated that there were
witnesses who should have been called who could have testified to his whereabouts on February
26, 2000. Like the defendant in Kelly, supra, defendant provided no information concerning the
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identity of these witnesses or what their testimony would have been if they had been permitted to
testify. Because defendant failed to establish a factual predicate for his claim, we have no basis
on which to review his assertion of ineffective assistance of counsel. Rodriguez, supra at 38. As
in Kelly, supra, we decline to reverse defendant’s conviction based upon his assertion that his
attorney was ineffective for failing to file a timely alibi notice. Based on the record, upon a de
novo review of this constitutional issue, defendant has not established the deficient performance
and prejudice required to succeed on a claim of ineffective assistance of counsel. LeBlanc, supra
at 579.
Affirmed.
/s/ Peter D. O’Connell
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
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