People of Michigan v. Jerry Damone Cole
329969
| Mich. Ct. App. | Mar 14, 2017Background
- Defendant Jerry Damone Cole was convicted by jury of armed robbery (ice pick) after a second trial; first trial ended in a hung jury. He was sentenced as a fourth habitual offender to 190–360 months.
- Victim Kenneth Pugh testified defendant robbed him; officer Charles Ruffin later testified he found an ice pick in the truck defendant had driven. Police also found cash on defendant and surveillance showed contact between defendant and Pugh.
- Defense counsel represented defendant in both trials; defendant argued counsel was ineffective for not obtaining transcripts from the first trial to impeach Ruffin and Pugh at the second trial.
- Defendant also challenged a 20% statutory late-payment penalty (MCL 600.4803(1)) as violating due process and equal protection because he is allegedly indigent.
- At sentencing, counsel identified several inaccuracies in the PSIR/SIR (e.g., counsel listed as retained vs. appointed; employment, family details) and the court agreed to some changes, but the written PSIR/SIR attached to the record still contained errors; the judgment also had clerical mistakes (e.g., indicating conviction by guilty plea, omission of habitual-offender status, possible months typo).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Ineffective assistance for failure to obtain first-trial transcripts to impeach Officer Ruffin and victim Pugh | Prosecutor: Counsel’s cross-examination and closing sufficiently attacked credibility; transcripts not required | Cole: Counsel was deficient for not using prior-trial transcripts to show inconsistent testimony about the ice pick and Pugh’s false statement about a book bag | Denied. Unpreserved but on record no obvious mistake: counsel made reasonable strategic choices and defendant failed to show prejudice given corroborating evidence |
| 2) Constitutionality of 20% late-payment penalty applied to an allegedly indigent prisoner | Prosecutor: Statute permits waiver and Jackson procedure applies; prisoner can petition trial court to show manifest hardship | Cole: Penalty violates due process and equal protection because he is indigent and was not given ability-to-pay hearing before penalty assessed | Denied (plain-error review). Jackson controls: no required ability-to-pay analysis until enforcement; prisoner presumptively nonindigent under MCL 769.1l and may petition for waiver/relief |
| 3) PSIR inaccuracies (weapon listed as handgun; age/marital status; SIR scoring) and clerical errors in judgment | Prosecutor: Many corrections noted at sentencing; court should correct ministerially where preserved | Cole: PSIR and judgment contain errors that must be corrected; alternative claim counsel ineffective for not challenging them | Partly granted. Errors and SIR scoring changes raised at sentencing preserved and must be corrected on remand; some claims waived by defense (weapon/age/marital status) and ineffective-assistance claims lack prejudice |
| 4) Clerical errors in judgment of sentence (conviction method, habitual-offender notation, possible months typo) | Prosecutor: Court may correct clerical mistakes under MCR 6.435(A) | Cole: Judgment contains clerical errors that should be fixed | Granted. Remand for correction of clerical errors and to provide corrected PSIR/Judgment to DOC |
Key Cases Cited
- People v Heft, 299 Mich. App. 69 (ineffective-assistance preservation rule and review standard)
- People v Ackerman, 257 Mich. App. 434 (ineffective-assistance two-prong test)
- People v Petri, 279 Mich. App. 407 (deference to trial strategy; failed strategy not deficient)
- People v Russell, 297 Mich. App. 707 (strategy and cross-examination decisions presumed reasonable)
- People v Odom, 276 Mich. App. 407 (counsel’s wide discretion in trial strategy)
- People v Bosca, 310 Mich. App. 1 (prejudice required when asserting counsel unprepared)
- People v Trakhtenberg, 493 Mich. 38 (duty to investigate or make reasonable determination not to)
- People v Carbin, 463 Mich. 590 (burden to establish factual predicate for ineffective-assistance claim)
- Blackburn v. Foltz, 828 F.2d 1177 (6th Cir.) (contrast case where transcript necessity was critical)
- People v Jackson, 483 Mich. 271 (prisoner-fee enforcement; no ability-to-pay analysis until enforcement; remittance procedure and presumption of nonindigency)
- People v Lucey, 287 Mich. App. 267 (trial court response to PSIR accuracy challenges)
- People v Lloyd, 284 Mich. App. 703 (PSIR challenge at sentencing; court’s options)
- People v Harmon, 248 Mich. App. 522 (remand for ministerial correction of PSIR)