Opinion
No. 342993
02-21-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MAURICE WILLIAMS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 11-004382-01-FC Before: GLEICHER, P.J., and K. F. KELLY and LETICA, JJ. PER CURIAM.
This case is before us for a third time. In 2011, a jury convicted defendant of armed robbery and the trial court sentenced defendant as a fourth habitual offender to life imprisonment. Defendant's first appeal resulted in a remand to resentence defendant as a second habitual offender. People v Williams, unpublished per curiam opinion of the Court of Appeals, issued January 16, 2014 (Docket No. 306499) (Williams I). Defendant appealed his new sentence as a second habitual offender and we remanded for possible resentencing consistent with People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). People v Williams, unpublished per curiam opinion of the Court of Appeals, issued December 20, 2016 (Docket No. 328717) (Williams II).
Following this Court's second remand, the trial court resentenced defendant as a second habitual offender to 12½ to 40 years' imprisonment. The November 17, 2017 judgment of sentence erroneously listed defendant's sentence as 1½ to 40 years' imprisonment. Accordingly, the court entered an amended judgment on November 20. Defendant again appeals, challenging the trial court's assessment of 10 points for Offense Variable (OV) 19, the court's November 20 "resentencing," the denial of appellate counsel from November 20, 2017 through March 19, 2018, the performance of defendant's appointed appellate counsel, and the trial court's denial of his request for substitute counsel. We discern no error and affirm.
I. BACKGROUND
This lengthy legal saga arises from defendant's armed robbery of Darrell Foster, a mugging which netted only $25. As noted, the trial court originally sentenced defendant as a fourth habitual offender to life imprisonment. This Court affirmed defendant's conviction, but determined that the trial court should have sentenced defendant as a second habitual offender. Williams I, unpub op at 3. As defendant's sentence was outside the corrected minimum sentencing guidelines range, this Court remanded for resentencing. Id. at 4-5.
On remand, the trial court sentenced defendant as a second habitual offender to 18¾ to 40 years' imprisonment. Defendant again appealed. This Court noted that although the trial court sentenced defendant as a second habitual offender, it erroneously identified defendant as a fourth habitual offender in the judgment of sentence. We remanded for the ministerial correction of that error. Williams II, unpub op at 3. Defendant challenged for the first time the trial court's assessment of 10 points for OV 19, interference with the administration of justice. The score was based on defendant giving a false name and birthday to Detroit Police Officer Samuel Pionessa. Defendant contended that Pionessa illegally entered the home, giving defendant a constitutional right to avoid the arrest. This Court held that as defendant had not sought suppression of the evidence by challenging the legality of the search and the evidence tended to support the score, we could not "preclude the court from scoring OV 19 on remand." Id. This Court remanded for possible resentencing, however, as "the resentencing occurred one month before the sea change in Michigan's sentencing scheme triggered by [Lockridge, 498 Mich 358], and the trial court relied on judicially found facts in imposing sentence." Williams II, unpub op at 1. On remand, the trial court was directed to consider "whether the court would have imposed a materially different sentence had it been aware the guidelines were advisory." Id. at 2. If so, and if defendant "chooses to pursue resentencing," the trial court was required to reconsider its sentence again. Id.
On second remand, defendant filed a motion for resentencing and to correct the judgment of sentence. Judge Prentis Edwards, Jr. had taken over the matter as the original trial judge had retired. The trial court granted the resentencing motion and conducted a resentencing hearing over two days—November 15 and 17, 2017. The court determined that the 10-point score for OV 19 was appropriate based on defendant's provision of a false name and birthdate after officers legally entered the home he was in. After reviewing the record, the court determined to lower defendant's minimum sentence even further, to 12½ to 40 years' imprisonment. The court entered defendant's minimum sentence incorrectly on the judgment of sentence, listing 18 instead of 150 months. Noticing its own error, the court issued an amended judgment of sentence with the correct minimum sentence on November 20, 2017, the next business day.
In a handwritten, in pro per motion dated December 4, 2017, but not accepted by the trial court until December 18, defendant challenged the trial court's November 20 amended judgment of sentence, asserting that the court illegally modified his valid sentence of 1½ to 40 years' imprisonment. On December 21, defendant signed a form request for appointed appellate counsel. While awaiting the appointment of counsel, defendant filed two more handwritten, in pro per motions: one for a new trial and one to expand the record to challenge the photographic lineup procedure.
It appears that the trial court has yet to consider these motions.
On March 8, 2018, defendant penned a letter to the trial court complaining that his request for court-appointed counsel had gone unanswered. On March 13, the court issued a written order denying defendant's motion to "correct" his "invalid" sentence. The court emphasized that the correct sentence of 12½ to 40 years was listed everywhere in the lower court record except on the November 17 judgment of sentence. Defendant's correct sentence was therefore very clear and the amended judgment represented the ministerial correction of a clerical mistake.
On March 16, the court notified defendant that it had not received his earlier request for appellate counsel, but that it would order the Appellate Counsel Services Office to act by the end of the day. Three days later, Melvin Houston was appointed to represent defendant.
II. OV 19
Through appellate counsel, defendant challenges the assessment of 10 points for OV 19. We review for clear error the trial court's factual findings, ensuring that the score is supported by a preponderance of the evidence. We review de novo the lower court's application of the statute to the facts. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). The prosecutor contends that we are precluded from reviewing the OV 19 score as this Court addressed and resolved this issue in Williams II. Whether the law-of-the-case doctrine applies is a question of law that we also review de novo. Duncan v Michigan, 300 Mich App 176, 188; 832 NW2d 761 (2013).
Williams II prevents this Court from revisiting issues concerning the legality of Officer Pionessa's entry into the house and his questioning of defendant, as well as the propriety of the 10-point score for OV 19. The Williams II Court reasoned as follows:
The [trial] court was not asked before or during trial to consider the legality of the search or arrest. [Defendant] never filed a motion to suppress or offered any evidence to contradict the officer's testimony that an occupant answered the door and consented to entry by the police. Law enforcement officers are permitted to seek consent to enter a home and even to conduct a search within. . . . Accordingly, if the officer's testimony is believed, [defendant's] arrest was legal. If the court believes the officer that [defendant] gave a false name, a 10-point score would be supportable. . . . We therefore cannot preclude the court from scoring OV 19 on remand. [Williams II, unpub op at 3.]
Under the law-of-the-case doctrine, "an appellate court's decision regarding a particular issue is binding on courts of equal or subordinate jurisdiction during subsequent proceedings in the same case." People v Herrera (On Remand), 204 Mich App 333, 340; 514 NW2d 543 (1994). The doctrine "has been described as discretionary," employed "to avoid inconsistent judgments." Duncan, 300 Mich App at 189. The doctrine provides a "mandatory obligation," however, to avoid successive review "when there has been no material change in the facts or intervening change in the law." Id.
Defendant identifies no material change in the facts or intervening change in the law. This Court ruled in Williams II that if Pionessa's testimony was believed, then his actions were legal, and if the trial court believed Pionessa, then an assessment of 10 points for OV 19 would be supportable. Williams II, unpub op at 3. On remand from Williams II, the trial court expressly stated that it found Pionessa's testimony credible. Defendant has provided no basis on which to conclude that the trial court's credibility determination was clearly erroneous. The law-of-the-case doctrine bars revisiting the legality of Pionessa's entry into the house and questioning of defendant. It also precludes a new consideration of whether the OV 19 score was supportable. Defendant is therefore not entitled to further relief.
III. NOVEMBER 20 AMENDED JUDGMENT OF SENTENCE
In an in pro per brief filed pursuant to Administrative Order No. 2004-6, Standard 4, defendant challenges the trial court's entry of an amended judgment of sentence on November 20, 2017, listing his minimum sentence as 12½, rather than 1½, years' imprisonment.
Resolution of this issue requires application of MCR 6.435(A), which governs the correction of clerical mistakes. The proper interpretation and application of court rules is a question of law that we review de novo. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). The legal principles governing the interpretation of statutes apply to the interpretation of court rules. Id. The most important rule of interpretation is that the plain language of a statute or court rule controls. Id.
MCR 6.435(A) provides, "Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party, and after notice if the court orders it." Therefore, under MCR 6.435(A), a trial court "may correct a clerical mistake on its own initiative at any time, including after a judgment has entered." Comer, 500 Mich at 293. The correction of substantive mistakes is governed by MCR 6.435(B), and is limited to the time before judgment enters. MCR 6.435(B) ("After giving the parties an opportunity to be heard, and provided it has not yet entered judgment in the case, the court may reconsider and modify, correct, or rescind any order it concludes was erroneous.").
The 1989 staff comment to MCR 6.435 explains the distinction between the respective provisions governing clerical mistakes and substantive mistakes as follows:
The following examples illustrate the distinction between the two foregoing provisions. A prison sentence entered on a judgment that is erroneous because the judge misspoke or the clerk made a typing error is correctable under subrule (A). A prison sentence entered on a judgment that is erroneous because the judge relied on mistaken facts (for example, confused codefendants) or made a mistake of law (for example, unintentionally imposed a sentence in violation of the Tanner rule) is a substantive mistake and is correctable by the judge under
subrule (B) until the judge signs the judgment, but not afterwards. In the latter event, however, the defendant may obtain relief by filing a postconviction motion. See 6.429. [MCR 6.435, 1989 staff comment.]Although a staff comment to a court rule is not binding authority, it may be persuasive or illustrative. See Comer, 500 Mich at 298 n 48 ("We acknowledge that staff comments to the court rules are not binding authority, but they can be persuasive in understanding the proper scope or interpretation of a rule or its terms."); People v Howell, 300 Mich App at 647-648; 834 NW2d 923 (2013) (recognizing that the 1989 staff comment to MCR 6.435 was not binding authority but finding it persuasive).
People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
The present case does not involve the correction of a substantive mistake or the modification of a sentence. Rather, the trial court properly corrected a clerical mistake contained in the November 17, 2017 judgment of sentence. The trial court stated on the record at the November 17 sentencing hearing that it was sentencing defendant to 150 to 480 months, or 12½ to 40 years. A judgment of sentence was entered on November 17, which mistakenly identified defendant's sentence as 18 to 480 months. However, the order of conviction and sentence and the November 17 register of actions entry both correctly indicated that defendant's sentence was 12½ to 40 years. On November 20, which was the next business day after November 17, the trial court entered an amended judgment of sentence correcting its earlier clerical error. The November 20 amended judgment of sentence stated, in relevant part, "Amended for ministerial correction of judgment."
The court sent the amended judgment of sentence to defendant, Jacqueline McCann (defendant's appointed counsel who handled the sentencing on remand from Williams II), the prosecutor, and the Department of Corrections. An accompanying letter explained that the November 20 judgment of sentence was issued to correct the clerical error contained in the November 17 judgment. The trial court's March 13, 2018 opinion and order denying defendant's motion for correction of an invalid sentence likewise explained that the sentencing transcript, the order of conviction and sentence, and the register of actions all reflected that the court had sentenced defendant to 12½ to 40 years. The trial court described the error in the November 17 judgment of sentence as clerical and typographical. Ultimately, the record supports that the court properly corrected a clerical error and defendant is not entitled to relief.
Defendant cursorily asserts that the court's action deprived him of his right to due process. Defendant's vague claim fails to establish the existence of a constitutional error. "Merely framing an issue as constitutional does not make it so." People v Blackmon, 280 Mich App 253, 261; 761 NW2d 172 (2008).
IV. DENIAL OF COUNSEL
Defendant contends that he was denied his constitutional right to counsel during a critical stage in the proceedings, from November 20, 2017 through March 19, 2018. Defendant failed to preserve this issue by raising it below, People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012), and our review is limited to plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
US Const, Am VI provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." "The Sixth Amendment safeguards the right to counsel at all critical stages of the criminal process for an accused who faces incarceration." People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004).
Defendant first contends that he was denied his right to counsel at a November 20, 2017 resentencing hearing. "[S]entencing is a critical stage at which a defendant has a right to counsel." People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). However, no resentencing hearing was held on November 20, 2017. Rather, the trial court issued an amended judgment of sentence correcting the clerical error contained in the November 17 judgment. Defendant was represented by counsel at the November 15 and November 17 sentencing hearings that led to the issuance of the November 17 judgment of sentence and the November 20 amended judgment. There simply was no resentencing hearing at which defendant could be represented.
Defendant also asserts that he was denied counsel during the period between the entry of the November 17 judgment of sentence and the filing of his appeal. Defendant focuses most of his argument on his lack of counsel when he filed his in pro per motion to correct an invalid sentence. However, there is no Michigan authority identifying the correction of an invalid sentence as a critical stage in a criminal proceeding.
Persuasive authority from our sister states and lower federal courts have held that the correction of an invalid sentence is not a critical stage of criminal proceedings. See United States v Palomo, 80 F3d 138, 142 (CA 5, 1996); Director of Dep't of Corrections v Kozich, 290 Va 502, 513; 779 SE2d 555 (2015); Patrick v State, 108 P3d 838, 844; 2005 WY 32 (2005); State v Pierce, 246 Kan 183, 198; 787 NP2d 1189 (1990); United States v Hamid, 461 A2d 1043, 1044 (DC, 1983).
Even if this was a critical stage in the proceedings, the trial court did not deny defendant counsel at that point. Defendant chose to proceed on his own despite that the court had advised defendant of his rights following sentencing and defendant signed an acknowledgement of rights form. Defendant filed an in pro per motion to correct an invalid sentence 17 days before he submitted a form requesting appointed counsel, choosing to proceed without representation. Defendant could have waited until counsel was appointed to file his motion. MCR 6.429(B)(2) provides that a defendant may file a motion to correct an invalid sentence even after filing his or her claim of appeal. Moreover, MCR 7.208(B)(1) gives a defendant "56 days after the commencement of the time for filing the defendant-appellant's brief" to "file in the trial court a motion . . . to correct an invalid sentence." Even after requesting appellate counsel, defendant marched forward without waiting for an appointment and filed two more in pro per motions in the trial court.
In a letter to the trial court dated March 8, 2018, defendant inquired about the status of his pending in pro per motions and his request for the appointment of appellate counsel. On March 13, the trial court issued its opinion and order denying defendant's motion for correction of an invalid sentence. In a March 16 letter to defendant, the trial court advised that "this courtroom never received your December 2017 request for appellate counsel[]" but that the appellate counsel services office had received the request. The court advised that McCann's office had requested that McCann be allowed an opportunity to speak with defendant before the pending motions were decided and that the court directed that defendant's request for counsel be processed by the end of the day. On March 19, Melvin Houston was appointed as defendant's appellate counsel. The present claim of appeal was filed on defendant's behalf a week later.
In short, defendant was advised at the November 17, 2017 sentencing hearing of his rights to appeal and to the appointment of appellate counsel. Defendant elected to file his handwritten motion to correct an invalid sentence before he requested the appointment of counsel. He could have opted to request appellate counsel and await an appointment before pursuing a motion to correct an invalid sentence. Defendant chose to proceed as he did and cannot now claim that the court interfered with his rights.
V. ASSISTANCE OF COUNSEL
Defendant further challenges the performance of his latest appointed appellate counsel. "A claim of ineffective assistance of counsel is a mixed question of law and fact." People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008). As no Ginther hearing was held, our review is limited to errors apparent on the existing record. People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
To establish a claim of ineffective assistance of counsel, "a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) 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 NW2d 136 (2012). "Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). "The defendant has the burden of establishing the factual predicate of his ineffective assistance claim." People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).
"[T]he test for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel." People v Uphaus, 278 Mich App 174, 186; 748 NW2d 899 (2008). The defendant must "overcome the presumption that his appellate counsel's decision constituted sound strategy." Id., citing People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). Further, "[a]ppellate counsel may legitimately winnow out weaker arguments in order to focus on those arguments that are more likely to prevail." Uphaus, 278 Mich App at 186-187, citing People v Reed, 449 Mich 375, 391; 535 NW2d 496 (1995).
Defendant argues that Houston was ineffective for failing to research and "investigate" the lower court file and transcripts. Defendant suggests that Houston's review of the case was deficient because he raised only one issue in his appellate brief. Defendant notes that Houston's brief did not refer to the motions still pending in the trial court or to the trial court's "unauthorized [r]esentencing [h]earing which was held on November 20, 2017[.]" According to defendant, if Houston had investigated and thoroughly researched the lower court record and transcripts, he would have realized that the trial court erroneously vacated the November 17 judgment of sentence and resentenced defendant in the November 20 amended judgment. Houston also should have realized, defendant argues, that defendant was denied the assistance of counsel between the issuance of the November 20, 2017 amended judgment of sentence and Houston's March 19, 2018 appointment. Also, according to defendant, Houston should have pursued the outstanding motions in the trial court.
Defendant's arguments lack merit. There is no support for the premise that Houston failed to review or "investigate" the lower court record or transcripts. Houston could not be ineffective for failing to challenge the November 20 "resentencing" because, as previously noted, the trial court's ministerial correction of the judgment of sentence did not amount to a resentencing. Houston had no ground to claim that the trial court denied defendant the assistance of counsel during his motion to correct an invalid sentence because, again as previously noted, that was not a critical stage of the proceedings and defendant chose to proceed on his motion before filing his request for appointed counsel. Counsel cannot be deemed ineffective for failing to advocate meritless positions. People v Mack, 265 Mich App 122, 130; 695 NW2d 342 (2005). Nor can defendant establish prejudice arising from Houston's failure to raise those issues. Defendant raised the issues in his Standard 4 brief. Therefore, the issues were presented to this Court, and Houston's "failure to do so was insignificant." People v Pratt, 254 Mich App 425, 431; 656 NW2d 866 (2002); see also People v Lopez, 305 Mich App 686, 694; 854 NW2d 205 (2014) ("[B]ecause defendant raises this issue in his Standard 4 brief, any possible error committed by his appellate counsel was cured.").
Defendant cannot establish that Houston was ineffective for failing to follow up on his motions for a new trial and to expand the record filed in January 2018. Houston was appointed to represent defendant in "post-conviction proceedings." However, there is no constitutional right to counsel in post-conviction proceedings beyond a direct appeal. Pennsylvania v Finley, 481 US 551, 556-557; 107 S Ct 1990; 95 L Ed 2d 539 (1987); People v Walters, 463 Mich 717, 720; 624 NW2d 922 (2001). Houston was actually appointed, as noted by the lower court register of actions, to assist defendant in pursuing his claim of appeal from his latest resentencing. Where there is no right to counsel, "there can be no deprivation of effective assistance." Walters, 463 Mich at 720, citing Wainwright v Torna, 455 US 586; 102 S Ct 1300; 71 L Ed 2d 475 (1982). Defendant's motions for a new trial and to expand the record to explore a challenge to the pretrial photographic identification procedure are post-conviction proceedings at which counsel was not constitutionally guaranteed. Indeed, MCR 6.505(A) provides that the trial court is only required to appoint counsel at this stage if it "directs that oral argument or an evidentiary hearing be held." Although it would have been good practice for Houston to at least consult with defendant about the in pro per post-conviction motions he filed, Houston was not ineffective for failing to do so.
In his Standard 4 brief, defendant requests that this Court remand for a Ginther hearing. A defendant's request to remand for a Ginther hearing is improper when it appears in the text of his Standard 4 brief rather than in a proper motion under MCR 7.211(C)(1). See People v Bass, 317 Mich App 241, 276 n 12; 893 NW2d 140 (2016). As the issue was improperly raised, we may not grant the requested relief.
In any event, we note that defendant did present to this Court the remand motion he prepared in pro per and asked Houston to file on his behalf. Houston declined. Defendant's motion was accompanied by a nonconforming "affidavit," a document that he failed to have notarized. See Detroit Leasing Co v Detroit, 269 Mich App 233, 236; 713 NW2d 269 (2005) ("[A] document that is not notarized is not a 'valid affidavit.' "). Although defendant later described his motion as seeking remand for a Ginther hearing, it was actually labeled "Motion to Remand for Appointment of Substitute Counsel." And defendant raised only those nonmeritorious issues discussed above. Accordingly, we are not persuaded that a remand is necessary and the nonconforming motion is denied.
VI. SUBSTITUTION OF COUNSEL
Finally, defendant challenges the trial court's denial of his motion to replace his appointed appellate counsel. We review for an abuse of discretion a trial court's decision on a motion to substitute counsel. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).
Defendant also suggests that this Court erred in denying his motion for substitution of appellate counsel. This Court did not deny his motion. Rather, this Court could not accept the motion for filing as defendant was represented by assigned counsel who was responsible for all filings in this Court, the motion did not accompany a timely filed Standard 4 brief, and the motion should have been directed to the trial court. See MCR 7.208(H) ("Throughout the pendency of an appeal involving an indigent person, the trial court retains authority to appoint, remove, or replace an attorney except as the Court of Appeals otherwise orders.").
An indigent defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced. Substitution of counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. Good cause may exist when a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic, when there is a destruction of communication and a breakdown in the attorney-client relationship, or when counsel shows a lack of diligence or interest. A mere allegation that a defendant lacks confidence in his or her attorney, unsupported by a substantial reason, does not amount to adequate cause. Likewise, a defendant's general unhappiness with counsel's representation is insufficient. [People v McFall, 309 Mich App 377, 382-383; 873 NW2d 112 (2015) (quotation marks and citations omitted).]Professional judgment and strategic decisions are entrusted to defense counsel, Traylor, 245 Mich App at 463, and disagreements between a defendant and defense counsel over such matters do not warrant substitution of counsel, People v Strickland, 293 Mich App 393, 398; 810 NW2d 660 (2011).
Defendant has not shown good cause for the appointment of substitute appellate counsel. Defendant contends that Houston failed to show him the appellate brief before filing it, but defendant cites no pertinent authority establishing that Houston was required to do so or that such a failure by itself constitutes good cause for the substitution of counsel. Defendant argues that Houston failed to include in the brief any discussion of the pending motions in the trial court or to raise issues concerning the denial of the motion to correct an invalid sentence and the alleged failure to appoint counsel to represent defendant in connection with that motion. But Houston's decision regarding what issues to raise in the appellate brief was a matter of strategy. Defendant's disagreement with Houston's exercise of professional judgment on such a strategic decision is not a ground for appointing substitute counsel. And as discussed, defendant's arguments regarding the denial of his motion to correct an invalid sentence, the alleged denial of counsel, and the constitutional effectiveness of Houston's performance lack merit. Houston was not required to make frivolous arguments. In any event, defendant raised those issues in his Standard 4 brief and thus suffered no prejudice.And contrary to defendant's contention, this Court was not deprived of jurisdiction just because he continued to file postjudgment motions, so Houston was permitted to file the current appeal. Accordingly, we discern no ground to order the appointment of new counsel.
We note that defendant's claim that Houston "failed to investigate the multiple punishment strand of double jeopardy" comes out of nowhere and defendant provides no legal or factual analysis. That argument is deemed abandoned. Lopez, 305 Mich App at 694.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Anica Letica