Defendant was convicted by a jury of breaking and entering with intent to commit a larceny, MCL 750.110, and possession of burglary tools, MCL 750.116. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 6 years and 4 months to 20 years’ imprisonment. He appeals by right. We affirm.
On January 3, 2011, police responded to a call about a possible breаk-in of a Menominee beauty salon. Upon arriving, a police officer shined a spotlight on the building and saw defendant inside. Defendant fled, discarding a tire iron as he ran. He was apprehended soon thereafter. At trial, defendant did not dispute that he had broken into the salon using the tire iron; however, he claimed that he did not have the necessary intent to commit a larceny to convict him of the breaking and entering charge.
For his sole issue on appeal, defendant asserted a claim of ineffective assistance of counsel and filed a motion to remand to the trial court under MCR 7.211(C)(1) in order to develop a factual record. He named three persons as potential witnesses that his trial counsеl never contacted who could, he asserted, have provided information relevant to his defense theory. The three are Natasha Fuller (defendant’s girlfriend at the time of the break-in), Shane Sullivan, and Lisa Christensen (Sullivan’s ex-wife). We granted the motion. All three identified witnesses were called to testify, along with defendant’s trial counsel and defendant’s brоther, William Herron. The trial court denied defendant’s motion for a new trial.
Defendant argues he was deprived of his right to effective assistance of counsel by trial counsel’s failure to investigate and call witnesses who would have corroborated his claim that he did not intend to commit larceny when he broke into the salon. “Whether a persоn has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc,
The Sixth Amendment of the United States Constitution and Article 1, § 20 of the Michigan Constitution
When determining whether counsel’s performance fell below an objective standard of reasonableness, defense counsel is given “wide discretion” to decide quеstions of “trial strategy.” People v Heft,
Defense counsel testified that his trial strategy centered on negating the element of intent. Of the identified witnesses, defendant’s trial counsel said that he sent a letter to Fuller. Although counsel stated that he also sent a letter to defеndant’s brother, William, both
Presiding as fact-finder at the evidentiary hearing, the trial сourt was positioned to assess the credibility of the witnesses. See People v Cress,
As for Christensen, she testified that trial counsel frequented the restaurant where she worked; however, there is no evidence that defense counsel was aware that she worked there, or even knew who she was. Christensen testified that her last name was Sullivan when she and Shane were married. Defense counsеl testified that he knew Sullivan had a wife named Lisa, but he did not know her last name was Christensen. In fact, counsel testified that he had never heard the name Lisa Christensen until the day before the evidentiary hearing. He also testified that he did not see her name in any of the correspondence he had received from
Under these circumstances, defense counsel’s actions were objectively reasonable.
Further, defendant has failed to establish that there is a reasonable probability that the outcome of the trial would have been different had counsel tried the case differently. None of defendant’s proffered witnesses would have corroborated his claim that he did not have the intent to commit a larceny. While they testified that defendant seemed to have mental health problems and had commented in the past that he was more comfortable and coped better in jail, none of the witnesses testified that defendant told them he planned to be arrested. Hence, their testimony would have conflicted with defendant’s own testimony that he claimed he had told several people that night “I can’t deal with this, and I’m going to go get arrested.” Thus, the missing witnesses’ testimony would have discredited defendant’s defense.
Defendant tеstified that he approached the salon from behind and parked his bike behind the store. He was dressed in black. He removed and discarded a screen behind the salon and used a tire iron to pry open a window. It is reasonable to infer from this evidence that defendant planned the break-in and had taken steps to avoid detection. As hе was fleeing the police, he tossed the tire iron. Then later, when asked if he were trying “to conceal evidence,” he responded, “Yes.” So, again, it is unlikely that the proposed testimony would have negated the effect of this evidence and the reasonable inferences that arise from it. See People v Goodin,
Defendant also argues in a supplemental brief that in light of Alleyne v United States, 570 US_;
In Apprendi v New Jersey,
Under the Due Process Clause of the Fifth Amendment and the jury tried guarantees of the Sixth Amendment, any fact that increases the maximum penalty for a crime must be submitted to a jury and proven beyond a reasonable doubt. The Fourteenth Amendment requires that the states’ criminal sentencing schemes conform to this rule. The rule includes exceptions for the fact of prior convictions and any facts admitted by the defendant.
Apprendi and its progeny engendered challеnges to Michigan’s sentencing guidelines, especially after United States v Booker,
Under Michigan’s sentencing scheme, the maximum sentence that a trial court may impose on the basis of the jury’s verdict is the statutory maximum. MCL 769.8(1).... As long as the defendant recеives a sentence within that statutory maximum, a trial court may utilize judicially ascertained facts to fashion a sentence within the range authorized by the jury’s verdict. [Id.]
The Drohan Court also relied on the Supreme Court’s decision in Harris v United States,
Defendant argues that the underpinnings of Drohan have been eviscerated by the Supreme Court’s decision in Alleyne, which overruled Harris and held that “any fact that increases the mandatory minimum is an ‘element’ [of a crime] that must be submitted to the jury.” Alleyne,
In holding that facts that increase mandatory minimum sentences must be submitted to the jury, we take care to note what our holding does not entail. Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U. S. [817, 828-829;130 S Ct 2683 ;177 L Ed 2d 271 (2010)] (“[W]ithin established limits[,] ... the exercise of [sentencing] discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts” (emphasis deleted and internal quotation marks omitted)); Apprendi,530 U. S., at 481 (“[N]othing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offеnse and offender—in imposing a judgment within the range prescribed by statute”).6 This position has firm historical roots as well. As Bishop explained:
“[W]ithin the limits of any discretion as to the punishment which the law may have allowed, the*403 judge, when he pronounces sentence, may suffer his discretion to be influenced by matter shown in aggravation or mitigation, not covered by the allegations of the indictment.” [1] Bishоp [Criminal Procedure (2d ed)] § 85, at 54.
“ [Establishing what punishment is available by law and setting a specific punishment within the bounds that the law has prescribed are two different things.” Apprendi, [530 US] at 519 (THOMAS, J., concurring). Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized bylaw.
\Alleyne, 570 US at_;133 S Ct at 2163 (alterations in original except those related tо citations).]
In this case, judicial fact-finding within the context of Michigan’s sentencing guidelines was not used to establish the mandatory minimum floor of a sentencing range. Rather, judicial fact-finding and the sentencing guidelines were used to inform the trial court’s sentencing discretion within the maximum determined by statute and the jury’s verdict. The statutes defendant was convicted of violating do not provide for a mandatory minimum sentence on the basis of any judicial fact-finding. While judicial fact-finding in scoring the sentencing guidelines produces a recommended range for the minimum sentence of an indeterminate sen
We reject defendant’s argument to the contrary. Defendant contends that although a court may depart from a guidelines recommended minimum sentence range on finding a substantial and compelling reason to do so, MCL 769.34(3), the presumptive minimum sentencing range is the equivalent of a mandatory minimum sentence. But defendant relies in support of his argument on Booker, Blakely, Cunningham v California,
In essence, then, defendant’s Apprendi argument is reduced to reliance on Alleyne alone. We conclude that defendant’s argument fails in light of the pains the United States Supreme Court took in Part III(C) of its opinion to distinguish judicial fact-finding that еstablishes a mandatory minimum floor of a sentencing range from the traditional wide discretion accorded trial courts to establish a minimum sentence within a range authorized by law as determined by a jury verdict or a defendant’s plea. We hold that judicial fact-finding to score Michigan’s sentencing guidelines falls within the “ ‘wide discretion’ ” accorded a sentencing court “ ‘in the sources and types of evidence used to assist [the court] in determining the kind and extent of punishment to be imposed within limits fixed by law[.]’ ” Alleyne, 570 US at_n 6;
We affirm.
Notes
Although defendant does not specifically state that he is conceding that the аlleged error would not have affected his conviction of possession of burglary tools, it can he inferred from his sole emphasis on the intent to commit a larceny that he is doing so. See People v Wilson,
See also United States v. Tucker,