Wе granted leave to appeal in this case to determine whether defendant was deprived of effective assistance of counsel. Defendant was convicted of entry without breaking. MCL 750.111; MSA 28.306. Because of an erroneous title search, defendant’s trial counsel failed to determine that the complaining witness was not the true owner of the building that defendant entered. The Court of Appeals found that this error rose to the level of ineffective assistance of counsel. Because we believe that counsel's error was not serious enough to deny defendant a fair trial, we reverse the judgment of the Court of Appeals.
I
Defendant was tried before a Wayne County jury on the charge of breaking аnd entering a building with intent to commit larceny. MCL 750.110; MSA 28.305. At trial, it was established that the complainant arrived at Willie & Sons Auto Parts located at 6503 McGraw in Detroit at about 11:30 A.M. on the day of the incident. He testified that his sons owned the building at that address, and that the three of them ran their auto parts business out of the building. When he arrived, he heard a noise in the rear of the building and discovered the defendant inside. He also observed that the chain and padlock were broken off the rear door, and that front wheel rotators that had been stacked near the front of the building were now stacked at the rear. After a brief verbal confrontation, defendant fled the scene in a truck. The complainant followed in his own vehicle, and was ablе to flag down a police car. He explained the incident to the officers, and the officers stopped the defendant’s truck. The defendant was subsequently arrested.
Defendant testified at trial that, on the day of the incident, he was working for a friend who was renovating a nearby duplex. While he was waiting for his friend to arrive, he had to “go to the bathroom.” Because there was no bathroom nearby for him to use, he went into the building in question and relieved himself in a hole in the ground. He tеstified that he believed the building was abandoned, and that he had entered through the rear door that was wedged open by snow. He said that he did not notice any chain or lock on the rear door, and that he had not broken anything to get inside. Hе also denied moving anything or taking anything while he was inside.
At the conclusion of the trial, the jury found defendant guilty of the lesser-included offense of entry without breaking. Defendant filed a postconviction motion for a new trial, arguing in part that his trial counsel was ineffective for failing to determine that the complainant had no legal or possessory interest in the building. The motion for a new trial was denied by the trial court. On appeal, the Court of Appeals remanded the case for a Ginther 1 hearing. During the hearing, it was determined that trial counsel had done a title search on the wrong property, and, thus, failed to discover that the complainant’s sons were no longer the owners of the property in question because they had lost it because of a tax foreclosure in 1993.
Despite the discovery of trial counsel’s error, the trial court again denied the motion for a new trial, finding that defense counsel provided defendant with effective assistancе of counsel. The defendant appealed a second time, and the Court of Appeals reversed in a divided unpublished per curium opinion.
2
The majority opined
II
In
People v Pickens,
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the advеrsary process that renders the result unreliable.
In attempting to persuade a reviewing court that counsel was ineffective, a defendant must also overcome the presumption that the challenged action was trial strategy, and must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.”
People v Johnson,
Finally, it is important to note that defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel:
A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately. [People v Ginther,390 Mich 442 -443.]
In the present case, defendant maintains that his trial counsel’s failure to uncover the true ownership of the property in question deprived him of the opportunity to argue that he was on the property with the owner’s consent. Beсause the complainant testified at trial that defendant did not have permission to be in the building, defendant believes that he was prejudiced by the erroneous assumption that the complainant had any more right to be on the propеrty than defendant. The
[i]n the instant case, defense counsel’s failure to ascertain the ownership of the building in question resulted in ignorance of information that could have aided the defense. A reasonable probability exists that, had the jury been aware that neither the complainant nor his sons owned the building, the outcome of the proceedings would have been different. See Pickens, supra. In the alternative, if defеnse counsel had prepared more carefully, the defense’s theory of the case might have changed and thereby altered the outcome. [Slip op at 2.]
However, we disagree that defendant has established that trial counsel’s error was so serious that it deprived him of a fair trial. Even if we assume that the defendant’s legal position is correct, i.e., that consent is either an element of the offense of entry without breaking or is at least an affirmative defensе to the crime, we are still unpersuaded that defendant has established “a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” 5 Johnson, supra at 124. In particular, there is no testimony or evidence in thе Ginther hearing record that would indicate anybody had consented to defendant’s, presence in the building in question. Without such evidence, there is no indication that the result would have been any different even if defendant had discovered before trial the identity of the true owner of the building. Therеfore, we disagree with the Court of Appeals assertion that the jury’s result likely would have changed if it had known about the trae ownership status of the building. 6
We also believe that the Court of Appeals alternative conclusion that, if the ownеrship information had been available at the time of trial, “the defense’s theory of the case might have changed” is purely speculative. Indeed, there was no evidence presented at the Ginther hearing that indicated defendant would have fared any better at trial with this information. Once again, the burden is on the defendant to establish the evidentiary support “which excludes hypotheses consistent with the view that his trial lawyer represented him adequately.” Ginther, supra at 443. Here, there is nо evidence in the record about how defendant’s theory of the case might have changed or how that change might have been successful.
III
Because defendant has failed to produce any evidence that would lead us to conclude that there was a reasonable probability
Notes
People v
Ginther,
Issued March 24, 1998 (Docket No. 182196). Because the Court found merit in defendant’s ineffective assistance of counsel claim, it did not address defendant’s other claims of error.
The Sixth Amendment provides in part that “[i]n all criminal proseсutions, the accused shall enjoy the right ... to have the Assistance of counsel for his defence.”
Const 1963, art 1, § 20 also guarantees that “[i]n every criminal prosecution, the accused shall have the right ... to have the assistance of counsеl for his or her defense . . . .”
We express no opinion in regard to the merits of defendant’s legal position. Rather, because defendant has failed to establish the factual basis for a claim of ineffective assistance of counsеl on the basis of his legal analysis, there is no need for us to express our views on his legal claims. To do so would merely be dicta.
The only testimony produced at the Ginther hearing with respect to how defendant’s trial strategy would have changed if the true ownership interest of the building had bеen discovered came from defendant’s trial counsel:
Q. Okay. If you had learned through searching those records that Mr. Howard’s sons had no interest in the property, would you have used that information to Mr. Hoag’s defense?
A. Yes, I would have.
Q. How would you have used it?
A. Well, I would have takеn the position that Mr. Howard didn’t have any possessory interest. That he was somehow — tell you the truth, I’m not clear how or where I would have taken that argument.
But, I would have said that he wasn’t entitled — he couldn’t have claimed this person, Mr. Hoag, didn’t havе permission to be there, if he didn’t have authority to grant permission.
This testimony is insufficient to establish any sort of claim of consent to be on the premises in question. There is absolutely no indication that defendant had permission to be on the prоperly. The fact that complainant might not have had the authority to consent to defendant’s presence on the premises is irrelevant, given that there is no allegation that he (or anyone else) actually gave defendant permission to go into the building.