PEOPLE OF MI V DAMON KEITH PERREO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 10, 2009
Plaintiff-Appellee,
v
No. 283450
Wayne Circuit Court
LC No. 07-014660-FH
DAMON KEITH PERREO,
Defendant-Appellant.
Before: Donofrio, P.J. and K.F. Kelly and Beckering, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of first-degree home invasion, MCL
750.110a(2), and sentenced as an habitual offender, fourth offense, MCL 769.12, to 9 to 18
years’ imprisonment. He appeals as of right. We affirm.
I. Basic Facts
On September 8, 2007, the police responded to the complainant’s house, where defendant
was being detained in an attached garage by the complainant’s son-in-law, Richard Mitchell.
The complainant’s daughter, Lisa Mitchell, testified that when she and Richard left for the
evening, the garage door was closed and locked. Both Lisa and Richard explained that when
they returned at about 2:30 a.m., the garage door was open, the light was on, and defendant was
inside. Richard testified that when he confronted defendant, he was startled and attempted to
“get out the door.” Lisa called the police, Richard and defendant wrestled, and Richard pinned
defendant on the ground and held him there until the police arrived. A police officer testified
that defendant had an injury on his elbow and was bleeding, but was treated and bandaged at the
scene.
Defendant testified that he lived in the neighborhood, was coming from a friend’s house,
and was on his way to work when a dog bit him on his elbow, causing him to bleed. Defendant
outran the dog and sought shelter in the yard next to the complainant’s yard. When defendant
saw that the dog was gone, he went to the complainant’s house in search of a water spigot to
wash off. As defendant was standing between the front door and the open garage door, Richard
confronted him. Richard then grabbed him by the neck and pulled him into the open garage,
while Lisa hit him with an umbrella or a stick. Defendant testified that he had no intention of
entering the garage or stealing anything from the garage.
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II. Effective Assistance of Counsel
Defendant argues that he was denied the effective assistance of counsel at trial. Because
defendant failed to raise this issue in the trial court in connection with a motion for a new trial or
an evidentiary hearing, this Court’s review is limited to mistakes apparent on the record. People
v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Sabin (On Second Remand), 242
Mich App 656, 658-659; 620 NW2d 19 (2000), lv den 463 Mich 1010 (2001).
Effective assistance of counsel is presumed and the defendant bears a heavy burden of
proving otherwise. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v
Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of
counsel, a defendant must show that counsel’s performance was below an objective standard of
reasonableness under prevailing norms and that the representation so prejudiced the defendant
that there is a reasonable probability that, but for counsel’s error, the result of the proceedings
would have been different. Id. A defendant must also overcome the presumption that the
challenged action or inaction was trial strategy. People v Johnson, 451 Mich 115, 124; 545
NW2d 637 (1996).
A. Failing to Subpoena Medical Records
Defendant argues that defense counsel was ineffective for failing to subpoena medical
records from the jail “relative to the dog bite defendant suffered.” Decisions about what
evidence to present are matters of trial strategy. People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999). “Ineffective assistance of counsel can take the form of a failure to call a
witness or present other evidence only if the failure deprives the defendant of a substantial
defense.” People v Hyland, 212 Mich App 701, 710; 538 NW2d 465 (1995), mod 453 Mich 902
(1996). A defense is substantial if it might have made a difference in the outcome of the trial.
Id.
Initially, we first note that defendant has not provided any proof that the records exist or
what they show. Furthermore, even if such records exist, defendant has not demonstrated that
they could have provided a substantial defense. While the medical records could have
corroborated the existence of an injury to defendant’s elbow, that fact was not disputed.
Although there was conflicting testimony whether defendant’s elbow was injured by a dog or
during the struggle with Richard,1 the trier of fact was not required to resolve that issue in
determining defendant’s guilt or innocence. The critical issue at trial was whether defendant
illegally entered the complainant’s garage. The medical records would not have shed light on
that issue. Accordingly, defendant has failed to demonstrate that counsel’s failure to provide the
records fell below an objective standard of reasonableness, or that he was prejudiced by their
absence.
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Richard believed that defendant’s elbow was injured during their struggle.
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B. Failing to Prepare for Trial
Defendant also argues that defense counsel visited him only once in jail, only wanted to
discuss a guilty plea, did not want to hear his version of the facts, and was unprepared for trial.
“A defendant is entitled to have his counsel prepare, investigate, and present all substantial
defenses.” People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).
Despite defendant’s complaints about defense counsel’s proposed strategy, the record
discloses that defendant did not plead guilty, that defendant and defense counsel had an
opportunity to discuss defendant’s version of the events before trial, and that defendant’s version
of events was presented to the trier of fact. It is clear from defense counsel’s questions and
remarks at trial that he was familiar with defendant’s version of events. Defendant testified at
trial and defense counsel’s questions allowed defendant to present his version of events in detail,
i.e., that he was bitten by a dog, ran to the house to retrieve water, and was pulled into the garage
by Richard. In closing argument, defense counsel noted that there were two conflicting versions
of events, argued that defendant’s version was more credible, and argued that defendant did not
have the requisite intent to support the charge of first-degree home invasion.
Defendant does not indicate what additional arguments defense counsel should have
made. To the extent that defendant relies on the fact that defense counsel’s arguments were not
successful, nothing in the record suggests that defense counsel’s presentation of the arguments
was unreasonable or prejudicial. Decisions about how to argue the evidence are a matter of trial
strategy. “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.” Rockey,
supra at 76-77. “The fact that defense counsel’s strategy may not have worked does not
constitute ineffective assistance of counsel.” People v Stewart (On Remand), 219 Mich App 38,
42; 555 NW2d 715 (1996). On this record, defendant has not overcome the presumption that
defense counsel’s representation was effective. Effinger, supra.
III. Trial Court’s Conduct
Defendant argues that the trial judge denied him a fair trial when it briefly left the bench
during defendant’s testimony, going approximately ten feet to obtain coffee. Because defendant
did not raise this issue in the trial court, we review this unpreserved claim for plain error
affecting substantial rights. People v Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d 130
(1999).
Defendant acknowledges that there is no reference to this matter in the record. Defendant
states, however, that when defense counsel stopped questioning to wait for the trial judge to
return, the judge directed counsel to continue his questioning. As plaintiff points out, this
indicates that the judge could still hear defense counsel’s questions and defendant’s testimony.
Moreover, in the court’s findings of fact, the court accurately set forth defendant’s version of the
events, thus further supporting that it continued to hear the testimony. Under the circumstances,
defendant has not established a plain error affecting his substantial rights.
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IV. Sufficiency of the Evidence
Defendant argues that there was insufficient evidence to support his conviction of firstdegree home invasion. We disagree. When ascertaining whether sufficient evidence was
presented at trial to support a conviction, this Court must view the evidence in a light most
favorable to the prosecution and determine whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440
Mich 508, 515; 489 NW2d 748 (1992). This Court will not interfere with the trier of fact’s role
of determining the weight of evidence or the credibility of witnesses. Id. at 514. It is for the trier
of fact to decide what inferences can be fairly drawn from the evidence and to judge the weight it
accords to those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002).
The elements of first-degree home invasion are: (1) the defendant broke and entered a
dwelling or entered the dwelling without permission; (2) when the defendant did so, he intended
to commit a felony, larceny, or assault, or he actually committed a felony, larceny, or assault
while entering, being present in, or exiting the dwelling; and (3) another person was lawfully
present in the dwelling or the defendant was armed with a dangerous weapon. People v Sands,
261 Mich App 158, 162; 680 NW2d 500 (2004); MCL 750.110a(2).
Lisa and Richard both testified that defendant was inside the garage when they returned
home. They also both testified that when they left earlier, the garage door was closed and
locked. Richard explained that as they walked out, he observed his wife lock the door. Richard
further explained that because of the condition of the door lock, it would only take “a pop of a
screwdriver” or “a shoulder nudge” to get the door open, and both witnesses testified that
defendant had a screwdriver with him when they saw him in the garage. Lisa also observed
scrapes on the door lock. Although defendant argues that there was no evidence that he intended
to commit a larceny inside the garage, Lisa testified that defendant was “stacking tools,” and
Richard testified that defendant “was pulling tool boxes and stacking them up on the floor.”
Viewed most favorably to the prosecution, the evidence was sufficient to enable the trier of fact
to conclude beyond a reasonable doubt that defendant broke into the garage with the intent to
commit a larceny.
V. Sentence Credit
Defendant’s final argument is that the trial court erred by failing to award him credit
against his new minimum sentence for the time he served in jail before sentencing. Because
defendant did not request an award of sentence credit or object to the court’s failure to award
credit, this issue is not preserved. People v Meshell, 265 Mich App 616, 638; 696 NW2d 754
(2005). We therefore review this claim for plain error affecting substantial rights. Carines,
supra.
Defendant was on parole when he committed the offense. In People v Seiders, 262 Mich
App 702, 705; 686 NW2d 821 (2004), this Court explained:
When a parolee is arrested for a new criminal offense, he is held on a
parole detainer until he is convicted of that offense, and he is not entitled to credit
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for time served in jail on the sentence for the new offense. MCL 791.238(2). A
parole detainee who is convicted of a new criminal offense is entitled, under MCL
791.238(2), to credit for time served in jail as a parole detainee, but that credit
may only be applied to the sentence for which the parole was granted. A parolee
who is sentenced for a crime committed while on parole must serve the remainder
of the term imposed for the previous offense before he serves the term imposed
for the subsequent offense. MCL 768.7a(2). [Citation omitted.]
See also People v Stead, 270 Mich App 550, 551; 716 NW2d 324 (2006) (“a parole detainee
convicted of a new offense is entitled to have jail credit applied exclusively to the sentence from
which parole was granted”) (emphasis added).
Defendant asserts that because he had served his minimum sentence for the prior offense
and the Department of Correction had taken no action toward imposing an additional sentence,
the time served in jail is ”dead time.” This Court addressed this issue in People v Filip, 278
Mich App 635, 642; 754 NW2d 660 (2008):
MCL 791.238(2) specifically dictates that a parole violator “is liable,
when arrested, to serve out the unexpired portion of his or her maximum
imprisonment.” And any remaining portion of the original sentence must be
served before a sentence for a second offense may begin. Thus, just because a
parolee has served his or her minimum sentence, it does not follow that the credit
must therefore be applied against his or her new sentence when he or she remains
liable to continue serving out the maximum sentence. Moreover, if a defendant is
not required to serve additional time on the previous sentence because of the
parole violation, then the time served is essentially forfeited. [Citations omitted;
emphasis added.]
Therefore, even if defendant had served the minimum portion of his prior sentence and
was not required to serve additional time for violating his parole, he was not entitled to credit
against his new sentence in this case. Consequently, the failure to award credit was not plain
error.
Affirmed.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
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