Ginther hearing in Michigan

2026Defendant further recognized that he “hurt [the victim] really bad.” In fact, defendant “hope[d]” that she was still alive, but he did not know if she was, even though she appeared to be breathing when he left. 4 See People v Ginther, 390 Mich 436, 445 ; 212 NW2d 922 (1973). 5 Although defendant filed a motion for a remand in this Court, alleging, among other things, that defense counsel conceded defendant’s guilt without discussing it with him, he did not request a Ginther hearing.

2026Defendant further recognized that he “hurt [the victim] really bad.” In fact, defendant “hope[d]” that she was still alive, but he did not know if she was, even though she appeared to be breathing when he left. 4 See People v Ginther, 390 Mich 436, 445 ; 212 NW2d 922 (1973). 5 Although defendant filed a motion for a remand in this Court, alleging, among other things, that defense counsel conceded defendant’s guilt without discussing it with him, he did not request a Ginther hearing.

2026A remand for a Ginther hearing is appropriate if “defendant has demonstrated [an] issue for which further factual development would advance his claim.” People v Chapo, 283 Mich App 360, 369 ; 770 NW2d 68 (2009).

2026A remand for a Ginther hearing is appropriate if “defendant has demonstrated [an] issue for which further factual development would advance his claim.” People v Chapo, 283 Mich App 360, 369 ; 770 NW2d 68 (2009).

2026Because a Ginther hearing was not held, “our review is limited to mistakes apparent on the record.” People v Payne, 285 Mich App 181, 188 ; 774 NW2d 714 (2009).

2026Because a Ginther hearing was not held, “our review is limited to mistakes apparent on the record.” People v Payne, 285 Mich App 181, 188 ; 774 NW2d 714 (2009).

2025Because the trial court did not hold a Ginther3 hearing before it decided Ivey’s motion for a new trial, and this Court denied Ivey’s motion to remand for a Ginther hearing,4 “our review is limited to mistakes apparent on the record.” People v Cox, 268 Mich App 440, 453 ; 709 NW2d 152 (2005). 3 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 4 People v Ivey, unpublished order of the Court of Appeals, entered November 12, 2024 (Docket No. 365368). -3- “Both the Michigan and the United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his or her def

2025Because the trial court did not hold a Ginther3 hearing before it decided Ivey’s motion for a new trial, and this Court denied Ivey’s motion to remand for a Ginther hearing,4 “our review is limited to mistakes apparent on the record.” People v Cox, 268 Mich App 440, 453 ; 709 NW2d 152 (2005). 3 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 4 People v Ivey, unpublished order of the Court of Appeals, entered November 12, 2024 (Docket No. 365368). -3- “Both the Michigan and the United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his or her def

2022Unger, 278 Mich App at 216-217 ; Williams, 275 Mich App at 200 . -7- Defendant also argues, however, that a Ginther hearing was required to explore why defense counsel did not call Johnson and Foaster as alibi witnesses.

2022Unger, 278 Mich App at 216-217 ; Williams, 275 Mich App at 200 . -7- Defendant also argues, however, that a Ginther hearing was required to explore why defense counsel did not call Johnson and Foaster as alibi witnesses.

2021Defendant did not preserve this argument by filing a motion for a new trial or a Ginther hearing in the lower court, People v Lopez, 305 Mich App 686, 693 ; 854 NW2d 205 (2014), or by filing a motion to remand in this Court on this ground, Abcumby-Blair, ___ Mich App at ___; slip op at 8.

2021Defendant did not preserve this argument by filing a motion for a new trial or a Ginther hearing in the lower court, People v Lopez, 305 Mich App 686, 693 ; 854 NW2d 205 (2014), or by filing a motion to remand in this Court on this ground, Abcumby-Blair, ___ Mich App at ___; slip op at 8.

2024See MCR 7.211(C)(1)(a); People v Bass, 317 Mich App 241 , 276 n 12; 893 NW2d 140 (2016) (“[T]o the extent that defendant now requests that his Court remand this matter for a Ginther hearing to permit him to substantiate his claims of ineffective assistance, his request for such relief is improperly made; it appears in the text of his Standard 4 brief, not in a proper motion to remand -3- under MCR 7.211(C)(1).”).

2024See MCR 7.211(C)(1)(a); People v Bass, 317 Mich App 241 , 276 n 12; 893 NW2d 140 (2016) (“[T]o the extent that defendant now requests that his Court remand this matter for a Ginther hearing to permit him to substantiate his claims of ineffective assistance, his request for such relief is improperly made; it appears in the text of his Standard 4 brief, not in a proper motion to remand -3- under MCR 7.211(C)(1).”).

2021A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct 5 Indeed, no Ginther hearing was held in this case. -8- the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. [Strickland, 466 US at 689 (citation omitted).] “Yet a court cannot insulate the review of counsel’s performance by calling it trial strategy.” Trakhtenberg, 493 Mich at 52 .

2018We review the trial court’s findings of fact at a Ginther hearing for clear error, and review questions of constitutional law de novo. [Citations and quotation marks omitted.] “To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense.” People v Riley (After Remand), 468 Mich 135, 140 ; 659 NW2d 611 (2003), citing Strickland v Washington, 466 US 668, 687 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984).

2026A Ginther hearing is not warranted when the “defendant has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective. . . .” See People v Williams, 275 Mich App 194, 200 ; 737 NW2d 797 (2007).

2026A Ginther hearing is not warranted when the “defendant has not set forth any additional facts that would require development of a record to determine if defense counsel was ineffective. . . .” See People v Williams, 275 Mich App 194, 200 ; 737 NW2d 797 (2007).

2023Instead, defendant simply argues that his convictions should be reversed and a new trial should be granted.9 When a Ginther hearing has not been requested to address a particular issue, review is limited to the record, and “[i]f the appellate record does not support defendant’s assertions, he has waived the issue.” People v Sabin (On Second Remand), 242 Mich App 656, 658-659 ; 620 NW2d 19 (2000).

2023Instead, defendant simply argues that his convictions should be reversed and a new trial should be granted.9 When a Ginther hearing has not been requested to address a particular issue, review is limited to the record, and “[i]f the appellate record does not support defendant’s assertions, he has waived the issue.” People v Sabin (On Second Remand), 242 Mich App 656, 658-659 ; 620 NW2d 19 (2000).

2018See People v Douglas, 496 Mich 557 (2014).” [People v Galloway, unpublished order of the Court of Appeals, entered February 8, 2018 (Docket No. 329480), quoting Galloway III, 501 Mich at 950.] The trial court conducted a Ginther hearing on April 11, 2018 there.

2018See People v Douglas, 496 Mich 557 (2014).” [People v Galloway, unpublished order of the Court of Appeals, entered February 8, 2018 (Docket No. 329480), quoting Galloway III, 501 Mich at 950.] The trial court conducted a Ginther hearing on April 11, 2018 there.

2025See People v Hernandez, 443 Mich 1, 2-3 ; 503 NW2d 629 (1993). -6- Finally, because defendant failed to establish that his trial lawyers had any duties to Thompson that prevented them from vigorously advocating on defendant’s behalf, defendant cannot show that his trial lawyers were constitutionally ineffective as a result of a conflict of interest.

2025See People v Hernandez, 443 Mich 1, 2-3 ; 503 NW2d 629 (1993). -6- Finally, because defendant failed to establish that his trial lawyers had any duties to Thompson that prevented them from vigorously advocating on defendant’s behalf, defendant cannot show that his trial lawyers were constitutionally ineffective as a result of a conflict of interest.

2019However, a defendant is not entitled to a Ginther hearing if he or she fails to “demonstrate[] any issue for which further factual development would advance his [or her] claim.” People v Chapo, 283 Mich App 360, 368-369 ; 770 NW2d 68 (2009); see also 1 At trial, defendant admitted that he lied to the police about not knowing why his fingerprints could have been on the window because he was scared that the investigation was in relation to defendant’s purchasing drugs at the residence. 2 Cell phones “ping” the nearest cell tower when being used, which allow police to accurately detect location a

2019However, a defendant is not entitled to a Ginther hearing if he or she fails to “demonstrate[] any issue for which further factual development would advance his [or her] claim.” People v Chapo, 283 Mich App 360, 368-369 ; 770 NW2d 68 (2009); see also 1 At trial, defendant admitted that he lied to the police about not knowing why his fingerprints could have been on the window because he was scared that the investigation was in relation to defendant’s purchasing drugs at the residence. 2 Cell phones “ping” the nearest cell tower when being used, which allow police to accurately detect location a

2026To preserve a claim of ineffective assistance of counsel, a defendant must move for a new trial or a Ginther6 evidentiary hearing in the trial court, People v Heft, 299 Mich App 69, 80 ; 829 NW2d 266 (2012), or move in this Court to remand for a Ginther hearing, People v Abcumby-Blair, 335 Mich App 210 , 227; 966 NW2d 437 (2020).

2026To preserve a claim of ineffective assistance of counsel, a defendant must move for a new trial or a Ginther6 evidentiary hearing in the trial court, People v Heft, 299 Mich App 69, 80 ; 829 NW2d 266 (2012), or move in this Court to remand for a Ginther hearing, People v Abcumby-Blair, 335 Mich App 210 , 227; 966 NW2d 437 (2020).

2026But “[b]ecause no Ginther hearing was held, People v Ginther, 390 Mich 436, 442-443 ; 212 NW2d 922 (1973), [our] review is limited to errors apparent on the record.” People v Jordan, 275 Mich App 659, 667 ; 739 NW2d 706 (2007).

2026But “[b]ecause no Ginther hearing was held, People v Ginther, 390 Mich 436, 442-443 ; 212 NW2d 922 (1973), [our] review is limited to errors apparent on the record.” People v Jordan, 275 Mich App 659, 667 ; 739 NW2d 706 (2007).

2024If the trial court has held a Ginther hearing, the trial court “first must find the facts, and then must decide whether those facts constitute a violation of the defendant’s constitutional right to effective assistance of counsel.” Id.

2024If the trial court has held a Ginther hearing, the trial court “first must find the facts, and then must decide whether those facts constitute a violation of the defendant’s constitutional right to effective assistance of counsel.” Id.

2019At a Ginther hearing, the defendant’s trial counsel testified “that he failed to subpoena the custodian of the cell phone records because of the mistaken belief that the business records exception to the hearsay rule did not require a custodian to testify.” Id. at 288 .

2019At a Ginther hearing, the defendant’s trial counsel testified “that he failed to subpoena the custodian of the cell phone records because of the mistaken belief that the business records exception to the hearsay rule did not require a custodian to testify.” Id. at 288 .

2022As both the federal Supreme Court and our Supreme Court have recognized, “a single, serious error may support a claim of ineffective assistance of counsel.” Kimmelman v Morrison, 477 US 365, 383 ; 106 S Ct 2574 ; 91 L Ed 2d 305 (1986); Ackley, 497 Mich at 393 . -14- Second, in concluding that respondent was not denied the effective assistance of counsel following the Ginther hearing, the trial court viewed Dr. Swerdlow-Freed’s testimony as centered solely on the three forensic interviews.

2022As both the federal Supreme Court and our Supreme Court have recognized, “a single, serious error may support a claim of ineffective assistance of counsel.” Kimmelman v Morrison, 477 US 365, 383 ; 106 S Ct 2574 ; 91 L Ed 2d 305 (1986); Ackley, 497 Mich at 393 . -14- Second, in concluding that respondent was not denied the effective assistance of counsel following the Ginther hearing, the trial court viewed Dr. Swerdlow-Freed’s testimony as centered solely on the three forensic interviews.

2021People v Carbin, 463 Mich 590, 599-600 ; 623 NW2d 884 (2001), citing Strickland v Washington, 466 US 668 , 104 S Ct 2052 , 80 L Ed 2d 674 (1984); People v Rockey, 237 Mich App 74, 76-77 ; 601 NW2d 887 (1999).

2021People v Carbin, 463 Mich 590, 599-600 ; 623 NW2d 884 (2001), citing Strickland v Washington, 466 US 668 , 104 S Ct 2052 , 80 L Ed 2d 674 (1984); People v Rockey, 237 Mich App 74, 76-77 ; 601 NW2d 887 (1999).

2023This argument is, therefore, without merit. 2 If the defendant did not move for a new trial or for a Ginther hearing, this Court’s review of a claim of ineffective assistance of counsel “is limited to mistakes apparent on the record.” People v Petri, 279 Mich App 407, 410 ; 760 NW2d 882 (2008).

2023This argument is, therefore, without merit. 2 If the defendant did not move for a new trial or for a Ginther hearing, this Court’s review of a claim of ineffective assistance of counsel “is limited to mistakes apparent on the record.” People v Petri, 279 Mich App 407, 410 ; 760 NW2d 882 (2008).

2022Because there has not been a Ginther hearing in this case “our review is limited to the facts on the record.” People v Wilson, 242 Mich App 350, 352 ; 619 NW2d 413 (2000).

2022Because there has not been a Ginther hearing in this case “our review is limited to the facts on the record.” People v Wilson, 242 Mich App 350, 352 ; 619 NW2d 413 (2000).

2018Because Denlar did not raise this issue in a motion for a new trial or request for a Ginther hearing in the trial court, our review of this issue is “limited to mistakes apparent on the lower court record.” Solloway, 316 Mich App at 188 .

2018Because Denlar did not raise this issue in a motion for a new trial or request for a Ginther hearing in the trial court, our review of this issue is “limited to mistakes apparent on the lower court record.” Solloway, 316 Mich App at 188 .

2026However, 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -4- because defendant did not request a Ginther hearing and the trial court did not order one, our “review is limited to mistakes apparent from the record.” People v Miller, 326 Mich App 719, 726 ; 929 NW2d 821 (2019).

2026However, 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -4- because defendant did not request a Ginther hearing and the trial court did not order one, our “review is limited to mistakes apparent from the record.” People v Miller, 326 Mich App 719, 726 ; 929 NW2d 821 (2019).

2021To preserve a claim for ineffective assistance of counsel for appellate review, a defendant must move in the trial court for a new trial or an evidentiary hearing, People v Head, 323 Mich App 526, 539 ; 917 NW2d 752 (2018), or file in this Court a motion for remand to the trial court for a Ginther hearing, People v Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 347369); slip op at 6.

2021To preserve a claim for ineffective assistance of counsel for appellate review, a defendant must move in the trial court for a new trial or an evidentiary hearing, People v Head, 323 Mich App 526, 539 ; 917 NW2d 752 (2018), or file in this Court a motion for remand to the trial court for a Ginther hearing, People v Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket No. 347369); slip op at 6.

2018We review the trial court’s findings of fact at a Ginther hearing for clear error, and review questions of constitutional law de novo. [Citations and quotation marks omitted.] “To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense.” People v Riley (After Remand), 468 Mich 135, 140 ; 659 NW2d 611 (2003), citing Strickland v Washington, 466 US 668, 687 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984).

2018We review the trial court’s findings of fact at a Ginther hearing for clear error, and review questions of constitutional law de novo. [Citations and quotation marks omitted.] “To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense.” People v Riley (After Remand), 468 Mich 135, 140 ; 659 NW2d 611 (2003), citing Strickland v Washington, 466 US 668, 687 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984).