Opinion
SC: 163385 COA: 349918
01-31-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joshua Lee DUFEK, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the June 10, 2021 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE Part VII of the judgment of the Court of Appeals and we REMAND this case to that court for reconsideration of the defendant's ineffective assistance of counsel claims. Although the Court of Appeals cited the correct standard for assessing prejudice under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it failed to apply that standard. The defendant was not required to show that, but for counsel's deficient performance, the result of the proceedings would have been different, or that prosecutorial error denied him a fair and impartial trial. Rather, prejudice is established where a defendant shows that "but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v. Trakhtenberg , 493 Mich. 38, 51, 826 N.W.2d 136 (2012) (emphasis added). On remand, the Court of Appeals shall resolve the defendant's claims of ineffective assistance of counsel under this standard. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.
Zahra, J., did not participate due to a familial relationship with counsel of record.