PEOPLE OF MI V JAMES F WARREN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 20, 2003
Plaintiff-Appellee,
v
No. 241435
Wayne Circuit Court
LC No. 00-008036-01
JAMES F. WARREN,
Defendant-Appellant.
Before: Whitbeck, C.J., and Jansen and Markey, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree home invasion, MCL 750.110a(2),
aggravated stalking, MCL 750.411i, and third-degree home invasion, MCL 750.110a(4).
Defendant was sentenced as a second habitual offender, MCL 769.10, to concurrent sentences of
5 to 20 years’ imprisonment for first-degree home invasion and 2 to 7 years’ imprisonment each
for aggravated stalking and third-degree home invasion. Defendant appeals as of right. We
affirm in part, vacate in part, and remand.
Defendant’s first issue on appeal is that he was denied the effective assistance of counsel.
We disagree.
Because an evidentiary hearing or motion for new trial must precede a claim of
ineffective assistance of counsel, defendant’s claim is considered only to the extent that
counsel’s claimed mistakes are apparent on the record. People v Rodriguez, 251 Mich App 10,
38; 650 NW2d 96 (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). The court must first find the facts and then 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, MCR 2.613(C), while its
constitutional determinations are reviewed de novo. Id.
In reviewing claims of ineffective assistance of counsel, we use the standard set forth in
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). People v Pickens,
446 Mich 298, 302-303; 521 NW2d 797 (1994). Under the two-prong Strickland test, a
defendant must show: (1) that counsel’s performance was deficient to the extent that it fell
below an objective standard of reasonableness under prevailing professional norms; and (2) that
counsel’s deficient performance so prejudiced the defendant that it deprived him of a fair trial,
i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result
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of the proceeding would have been different. Pickens, supra at 303; see also Strickland, supra at
694. The defendant must overcome a strong presumption that counsel’s performance constituted
sound trial strategy. People v Riley, 468 Mich 135, 140; 659 NW2d 611 (2003).
Where the evidence obviously points to defendant’s guilt, it can be better tactically to
admit to the guilt and assert a defense or to admit guilt on some charges but maintain innocence
on others. People v Walker, 167 Mich App 377, 382; 422 NW2d 8 (1988), overruled on other
grounds People v Mitchell, 456 Mich 693, 698; 575 NW2d 283 (1998). Only a complete
concession of guilt constitutes ineffective assistance of counsel. People v Emerson (After
Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994). In conceding that defendant was guilty
of breaking and entering, counsel was employing the tactic of admitting what the evidence
strongly demonstrated while at the same time denying other elements or other crimes, which is a
tactic that this Court has found to be acceptable trial strategy. See id.; People v Wise, 134 Mich
App 82, 98-99; 351 NW2d 255 (1984). That a strategy does not work does not render its use
ineffective assistance of counsel. People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d
291 (2001). This Court will not substitute its judgment for that of counsel regarding matters of
trial strategy, nor will it assess counsel’s competence with the benefit of hindsight. People v
Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999). Therefore, defendant has
not overcome the presumption that he received effective assistance of counsel in this regard.
Riley, supra at 140.
Although defendant alleges that defense counsel acted improperly in making denigrating
comments about him, our review indicates that the comments were not denigrating to defendant
personally, but only acknowledge the “admitted stupidity” of his actions. These comments
appear to be part of defense counsel’s overall strategy of seeking the jury’s empathy. As noted,
this Court will not substitute its judgment for that of trial counsel regarding matters of trial
strategy. Rice, supra at 445. That a strategy does not work does not render its use ineffective
assistance of counsel. Kevorkian, supra at 414-415. Accordingly, defendant has not overcome
the presumption that he received effective assistance of counsel in this regard. Riley, supra at
140.
Defendant also alleges that defense counsel’s failure to request instruction on the lesserincluded offense of third-degree home invasion with respect to Count I was improper. This
argument is without merit because, as an alternative to Count I, the jury did in fact receive
instruction on the charge of third-degree home invasion as Count III of the crimes charged.
Defendant has failed to overcome the strong presumption that counsel’s actions constituted
sound trial strategy and that defense counsel’s performance was not deficient and, therefore,
defendant was not deprived of the effective assistance of counsel. See Riley, supra at 140.
Defendant’s next issue on appeal is that the trial court erred in denying his request for
new counsel. We disagree. A trial court’s decision regarding substitution of counsel is reviewed
for an abuse of discretion. People v Traylor, 245 Mich App 460, 462-463; 628 NW2d 120
(2001). Although an indigent person is entitled to appointed counsel, he is not entitled to choose
a lawyer. People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973). If requested,
appointment of substitute counsel is allowed only on good cause and where the substitution will
not unreasonably disrupt the proceedings. Traylor, supra at 462.
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There are four factors that should be considered by a court when faced with a request for
substitute counsel: (1) whether the defendant was asserting a constitutional right; (2) whether the
defendant had a legitimate reason for asserting the right; (3) whether the defendant was negligent
in asserting his right; and (4) the extent to which previous delays are attributable to the
defendant. People v Williams, 386 Mich 565, 578; 194 NW2d 337 (1972).
Regarding the first factor, it is undisputed that defendant was seeking to assert his
constitutional right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20;
United States v Cronic, 466 US 648, 654; 104 S Ct 2039, 2044; 80 L Ed 2d 657 (1984). But as
previously discussed, defendant has failed to overcome the presumption that counsel provided
effective assistance. Regarding the second and third factors together, a defendant may not allege
a breakdown of the attorney-client relationship based on his own refusal to cooperate with his
assigned attorney, and a defendant’s mere allegation that he lacked confidence is his attorney is
not good cause to substitute counsel. Traylor, supra at 462-463. In this case, defendant did not
have a legitimate reason for asserting his right because his conduct was the cause of the
breakdown in his relationship with his attorney and he acted negligently in waiting until the
prosecutor had rested her case to raise his claim and then refusing to testify as he had told
counsel he would.
Finally, regarding the last factor, defendant’s request for new counsel was just one more
attempt in a long line of delaying tactics employed by defendant, which the trial court recognized
in denying the motion. The trial court’s decision comported with applicable law and, therefore,
the court did not abuse its discretion in refusing defendant’s request for substitute counsel.
Defendant’s last issue on appeal is that his conviction for both first-degree home invasion
and third-degree home invasion violates double jeopardy. Further, defendant claims that
vacating this conviction would change his sentence recommendation under the sentencing
guidelines. Issues involving double jeopardy are reviewed de novo. People v Shipley, 256 Mich
App 367, 377-378; 662 NW2d 856 (2003).
Both the United States and Michigan Constitutions prohibit placing a defendant twice in
jeopardy for a single offense. US Const, Am V; Const 1963, art 1, sec 15; People v Herron, 464
Mich 593, 599; 628 NW2d 528 (2001). These guarantees are substantially identical and protect
a defendant against both successive prosecutions for the same offense and multiple punishments
for the same offense. Herron, supra; Rodriguez, supra at 17.
Defendant contends that his convictions for both first-degree home invasion and thirddegree home invasion violate his double jeopardy rights. The prosecution acknowledges in its
brief on appeal that the judgment of sentence should be modified to reflect a conviction of firstdegree home invasion, without the conviction of third-degree home invasion. Based on
defendant’s argument and the prosecution’s concession, we affirm the first-degree home invasion
conviction and vacate the conviction and sentence on the lesser charge of third-degree home
invasion.1
1
We decline to address, at this point, whether a conviction of first-degree home invasion, with
(continued…)
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Next, defendant argues that vacating the third-degree home invasion conviction will
change the recommended range of his minimum sentence. But defendant is mistaken. Removal
of the third-degree home invasion conviction does not change the PRV level.2 It remains at level
D, thus, having no effect on the recommended sentence range. As such, we need not remand for
resentencing.
We affirm defendant’s convictions and sentences on the charges of first-degree home
invasion and aggravated stalking, vacate the conviction and sentence for third-degree home
invasion, and remand for modification of the sentencing information report and the judgment of
sentence in accordance with this opinion. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
/s/ Jane E. Markey
(…continued)
the underlying felony being aggravated stalking, and third-degree home invasion, with the
underlying misdemeanor being malicious destruction of property, would violate double jeopardy.
It is unnecessary to address this issue based on the prosecution’s concession.
2
The trial court imposed twenty points for PRV 7 because defendant had two subsequent or
concurrent felony convictions. MCL 777.57. This gave defendant a total PRV score of fortyfive. First-degree home invasion is a class B felony; and under the minimum sentence ranges
chart for class B felonies, a total PRV score of forty-five falls under PRV level D. MCL
777.16f; MCL 777.63. Defendant and plaintiff both agree that removal of the third-degree home
invasion conviction leaves defendant with only one subsequent or concurrent felony conviction,
thus, lowering his PRV 7 score from twenty to ten. MCL 777.57. However, even though this
change lowers defendant’s total PRV score to thirty-five, it does not change the PRV level.
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