ON REMAND
This is the second time that defendant Jeffrey Faul Gioglio’s appeal is before this Court. In our prior opinion, the majority examined in detail the evidence and events surrounding Gioglio’s trial; for the sake of brevity, we will not restate the facts here. See People v Gioglio, 292 Mich App 173, 176-192; 807 NW2d 372 (2011). The majority determined that Gioglio’s trial lawyer, Susan Prentice-Sao, did not subject the prosecution’s case to meaningful adversarial testing. Id. at 201. After concluding that Prentice-Sao had failed in this regard, the majority presumed that Gioglio suffered prejudice as provided under United States v Cronic, 466 US 648, 658-659, 666; 104 S Ct 2039; 80 L Ed 2d 657 (1984). Gioglio, 292 Mich App at 202. The dissent disagreed with the majority’s conclusion that prejudice should be presumed under Cronic. Instead, the dissent would have analyzed Gioglio’s claim that Prentice-Sao did not provide effective assistance of counsel under the test stated in Strickland v Washington, 466 US 668, 687, 691-692; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Gioglio, 292 Mich App at 236-237 (K. F. KELLY, J, dissenting). Our Supreme Court agreed with the dissent and determined that it was error to presume prejudice under Cronic. See People v Gioglio, 490 Mich 868 (2011). Accordingly, it remanded the case back to this Court “for consideration of whether defense counsel’s performance was ineffective under Strickland” in addition to consideration of Gioglio’s remaining issue on appeal. Id.
We now consider Gioglio’s claim that he did not receive the effective assistance of counsel that is guaranteed to all criminal defendants. For the reasons more fully explained below, we conclude that Gioglio failed to establish that any specific act or omission by PrenticeSao amounted to the ineffective assistance of counsel. Accordingly, he is not entitled to a new trial on that basis. Further, because there were no other errors warranting relief, we affirm.
I. THE SCOPE OF OUR REVIEW
In our order remanding this matter to the trial court, we ordered the trial court to make “more definite findings on the factual questions identified in [the] order. . . .” Id. We identified the factual issues as whether Prentice-Sao actually “told the prosecutor that she believed that her client was guilty,” whether she “had a bias against [Gioglio] and acted on that bias,” and whether she “expressed enthusiasm for [Gioglio’s] lengthy sentence.” Id. We also noted in passing that the trial court “did not address a series of other actions that [Prentice-Sao] took or might have failed to take.” Id. We then cited, by way of example, footnote 7 of the majority opinion. Id., citing Gioglio, 292 Mich App at 202 n 7. Although we did not specifically direct the trial court to
This Court is an error-correcting court that has broad authority to take corrective action with regard to lower court proceedings. See Burns v Detroit (On Remand), 253 Mich App 608, 615; 660 NW2d 85 (2002); see also Up & Out of Poverty Now Coalition v Michigan, 210 Mich App 162, 168; 533 NW2d 339 (1995) (“We are also mindful that this Court functions as a court of review that is principally charged with the duty of correcting errors.”). We have the power to “exercise any or all of the powers of amendment of the trial court or tribunal,” to “permit amendment or additions to the grounds for appeal,” and to “permit amendments, corrections, or additions to the transcript or record.” MCR 7.216(A)(1), (3), and (4). This Court also has the power to “enter any judgment or order or grant further or different relief as the case may require,” MCR 7.216(A)(7) (emphasis added), and we may enforce our orders through our contempt power, see In re Contempt of Dougherty, 429 Mich 81, 91 n 14; 413 NW2d 392 (1987). Therefore, this Court has the authority to order the trial court to make findings and address issues that were not raised in the original motion for an evidentiary hearing.
In addition, although we will not normally consider issues that the trial court did not have the opportunity to address, this Court can — and will — overlook preser
Moreover, the prosecution’s fear that we might address the issues that were identified in footnote 7 is unfounded. This Court will exercise its ability to address unpreserved issues only in the most exceptional circumstances. Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234 n 23; 507 NW2d 422 (1993); see also Bacila, 353 Mich at 118 (recognizing that appellate courts have the power to address unpreserved issues, but stating that the “power is exercised sparingly” and with full realization of the restrictions and limitations inherent in the power’s employment). In our prior opinions, both the majority and the dissent recognized that Gioglio had not properly raised those issues and, accordingly, that those errors could not serve as a basis for granting relief. See Gioglio, 292 Mich App at 202-203 & n 7 (M. J. KELLY, EJ.); id. at 224 n 3 (K. F. KELLY, J., dissenting). As such, we shall limit our analysis of Gioglio’s claim of ineffective assistance to those acts and omissions that he arguably raised in his original brief on appeal.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARDS OF REVIEW
Whether a defendant’s trial counsel was ineffective is not a matter of historical fact; rather, both the performance and prejudice components of the ineffectiveness inquiry involve mixed questions of fact and law. Strickland, 466 US at 698. This Court reviews de novo, as a question of constitutional law, the determination that a particular act or omission fell below an objective stan
B. THE TEST UNDER STRICKLAND
The United States and Michigan Constitutions both guarantee that every person charged with a crime will have a lawyer’s assistance throughout the criminal proceedings. US Const, Am VI; Const 1963, art 1, § 20. Indeed, the right to have the assistance of a lawyer is so fundamental to the integrity of our system that the state must provide the accused with a lawyer if the accused cannot afford to hire his or her own lawyer. See Gideon v Wainwright, 372 US 335, 344; 83 S Ct 792; 9 L Ed 2d 799 (1963). But the mere appointment of a lawyer to assist the accused is not enough to satisfy the Sixth Amendment right; the right necessarily includes the right to have assistance that is within the range of competence demanded of lawyers in criminal cases. Cronic, 466 US at 654-655. As such, the Sixth Amendment right to have the assistance of a lawyer in a criminal proceeding includes the right to have effective assistance. Strickland, 466 US at 686. And it is a violation of the right to have the assistance of counsel when a criminal defendant’s trial lawyer does not render adequate legal assistance. Id.
In the majority of situations, Michigan courts apply the test stated under Strickland when evaluating a defendant’s claim that his or her trial lawyer did not provide effective assistance. See People v Frazier, 478 Mich 231, 243; 733 NW2d 713 (2007). The Strickland test recognizes that the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
The first prong of this test requires the defendant to identify those acts or omissions of counsel that the defendant alleges were not the result of reasonable professional judgment. Id. at 690. The reviewing court must then determine whether “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. Because there are countless ways to provide effective assistance in any given case, in reviewing a claim that counsel was ineffective courts must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Reviewing courts are not only required to give counsel the benefit of the doubt with this presumption, they are required to “affirmatively entertain the range of possible” reasons that counsel may have had for proceeding as he or she did. Cullen v Pinholster, 563 US _; 131 S Ct 1388, 1407; 179 L Ed 2d 557 (2011). That inquiry is objective; although the reviewing court may not engage in a post hoc rationalization of the counsel’s decision-making that contradicts the available evidence, neither may courts insist that counsel confirm every aspect of the strategic basis for his or her actions. Harrington v Richter, 562 US _; 131 S Ct 770, 790; 178 L Ed 2d 624 (2011). Accordingly, a reviewing court must conclude that the act or omission of the defendant’s trial counsel fell within the
The second prong of the test requires the defendant to show prejudice. Strickland, 466 US at 692. Under this prong, it is not enough that the defendant showed that the act or omission “had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, the defendant must show that “there is a reasonable probability” that the outcome would have been different in the absence of the deficient performance. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Further, this determination must be made in consideration of the “totality of the evidence” presented to the jury and keeping in mind that some “errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect.” Id. at 695-696.
C. APPLICATION OF STRICKLAND
Having explained the test applicable to claims of ineffective assistance of counsel, we shall now examine
1. BETRAYAL OP ATTORNEY-CLIENT PRIVILEGE
Gioglio argued that Prentice-Sao betrayed his attorney-client communications by telling the prosecutor that he had admitted to committing the charged conduct. We agree that a trial lawyer’s decision to betray his or her client’s confidential communications to the prosecutor would normally fall below an objective standard of reasonableness under prevailing professional norms. See MRPC 1.6. However, after this Court’s remand, the trial court found that Prentice-Sao did not intentionally disclose any privileged communications to the prosecutor. Rather, the trial court found that the conversations did not amount to a betrayal of confidence, but appeared “to be related to plea negotiations.” Thus, the trial court implicitly accepted Prentice-Sao’s version of events; namely, that any statements she had made to the prosecutor were proper and related to Gioglio’s ability to enter a valid plea. Because resolution of this factual dispute was a matter of credibility, we will defer to the trial court’s superior ability to judge such matters. People v Sexton (After Remand), 461 Mich 746, 752; 609 NW2d 822 (2000); MCR 2.613(C). Accordingly, given the trial court’s findings, we must conclude that Gioglio has failed to establish the factual predicate of his claim — that is, he failed
2. BIAS
Gioglio also argued on appeal that Prentice-Sao had a bias against him and that the bias amounted to an actual conflict of interest under Mickens v Taylor, 535 US 162, 172-173, 172 n 5; 122 S Ct 1237; 152 L Ed 2d 291 (2002). Specifically, Gioglio stated that the evidence that Prentice-Sao mimicked his speech impediment, that she said she could not stand to look at him and that he made her sick, and that she expressed pleasure after he received a lengthy sentence demonstrated that Prentice-Sao had a bias against him and that her bias adversely affected her performance.
Gioglio presented compelling evidence that PrenticeSao might have had a bias against him and acted on that bias to his detriment. And we agree that when a trial lawyer adopts the view that his client is guilty and acts on that belief, the acts taken on the basis of the bias necessarily fall below an objective standard of reasonableness under prevailing professional norms. See Gioglio, 292 Mich App at 205, citing United States v Swanson, 943 F2d 1070, 1074 (CA 9, 1991). Nevertheless, the trial court did not agree that the evidence established that Prentice-Sao “had a bias against her client and acted on that bias.” The court explained that Prentice-Sao’s “actions during the case and her testimony are not consistent with the allegations that her actions were affected by any bias.” The trial court implicitly found Prentice-Sao’s testimony that she “was
3. FAILURE TO CROSS-EXAMINE
Gioglio also argues that Prentice-Sao’s decision to not cross-examine the complainant fell below an objective standard of reasonableness under prevailing professional norms. He maintains that Prentice-Sao’s decision was not motivated by trial strategy, but by her inability to question a child victim of sexual abuse and her contempt for him.
We can imagine numerous valid reasons why a competent lawyer — when confronted with the facts of this case — might refrain from cross-examining the complainant as a matter of trial strategy; a reasonably competent lawyer might want to avoid the appearance of bullying the witness, might believe that the complainant’s testimony can best be undermined by pointing out inconsistencies with other testimony, and might want to avoid elaboration on damaging points of testimony. See, e.g., People v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997) (noting that a trial lawyer’s handling of witnesses is presumptively a matter of trial strategy). As such, in the absence of evidence to the contrary, we would normally presume that PrenticeSao’s decision was founded on considerations of reasonable professional judgment and end the inquiry there. See Pinholster, 563 US at _; 131 S Ct at 1407
In examining Gioglio’s evidence, the trial court stated that it was “not convinced that [Prentice-Sao] refused to cross-examine the victim because she believed that her client was guilty or because she believed that the victim did not deserve to be put through a cross-examination.” The trial court also summarized Prentice-Sao’s testimony from the hearing and implicitly found that Prentice-Sao’s version was credible. It then found that Prentice-Sao made the decision as part of a “reasonable trial strategy.” Although we might disagree with these findings, mere disagreement is not a sufficient basis for determining that they are clearly erroneous. See People v Farrow, 461 Mich 202, 208-209; 600 NW2d 634 (1999) (stating that a finding is not clearly erroneous if there is sufficient support for the
D. CONCLUSION
When Gioglio’s claims of ineffective assistance are viewed in light of the trial court’s resolution of the competing factual claims, we must conclude that Gioglio has not established that any of Prentice-Sao’s acts or omissions fell below an objective standard of reasonableness under prevailing professional norms. Consequently, he has not established that he did not receive the effective assistance of counsel under the test stated in Strickland. See id.
III. HABITUAL-OFFENDER ENHANCEMENT
A. STANDARDS OF REVIEW
Finally, as part of his original appeal, Gioglio argued that the trial court erred when it determined that it had to sentence him as an habitual offender under MCL 769.10. This Court reviews for an abuse of discretion a trial court’s decision to apply habitual-offender enhancements. People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).
The trial court originally sentenced Gioglio using the maximum sentences without any habitual-offender enhancements. The trial court later held a new hearing to correct the maximum sentences. The trial court indicated that it gave Gioglio “the wrong maximum” and then resentenced him by increasing the maximum sentences for each conviction by IV2, as provided under MCL 769.10.
Under MCL 769.10, a trial court may — but is not required to — enhance the maximum sentences for habitual offenders. People v Bonilla-Machado, 489 Mich 412, 429; 803 NW2d 217 (2011). And if a trial court applies MCL 769.10 to enhance a sentence under the mistaken belief that it is required to do so, it necessarily abuses its discretion. Id. at 430. In this case, it is not entirely clear that the trial court enhanced Gioglio’s maximum sentences under a mistaken belief that it had to apply MCL 769.10. In any event, we conclude that Gioglio waived this claim of error. After the trial court applied MCL 769.10 to Gioglio’s maximum sentences, it asked if “everyone was in agreement” with the new máximums, to which Prentice-Sao replied that she was. By affirmatively agreeing with the trial court’s decision to apply MCL 769.10 to enhance Gioglio’s sentences, Prentice-Sao waived any claim that the trial court erred by doing so on behalf of her client. People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000) (holding that express approval of the trial court’s actions constitutes a waiver that extinguishes any error).
IV GENERAL CONCLUSION
Gioglio failed to establish that he did not receive the effective assistance of counsel under the test stated in
Affirmed.
Michigan courts typically refer to hearings on a claim of ineffective assistance of counsel as Ginther hearings after our Supreme Court’s decision in People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).