Strickland test in Michigan

2023Thus, [a] defendant seeking relief for ineffective assistance in this context must meet Strickland [v Washington, 466 US 668, 690 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984)]’s familiar two-pronged standard by showing: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Douglas, 496 Mich at 592 , quoting Lafler, 566 US at 163 .] Lafler did not create a new rule of law but rather only established how the familiar

2023Thus, [a] defendant seeking relief for ineffective assistance in this context must meet Strickland [v Washington, 466 US 668, 690 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984)]’s familiar two-pronged standard by showing: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Douglas, 496 Mich at 592 , quoting Lafler, 566 US at 163 .] Lafler did not create a new rule of law but rather only established how the familiar

2025If a nonconstitutional error is unpreserved, however, then it may form the basis of a claim for ineffective assistance of 1 See People v Pickens, 446 Mich 298, 338 ; 521 NW2d 797 (1994) (adopting the Strickland test as the standard for ineffective assistance of counsel under Michigan’s Constitution). counsel.

2025If a nonconstitutional error is unpreserved, however, then it may form the basis of a claim for ineffective assistance of 1 See People v Pickens, 446 Mich 298, 338 ; 521 NW2d 797 (1994) (adopting the Strickland test as the standard for ineffective assistance of counsel under Michigan’s Constitution). counsel.

2026See also Frazier, 478 Mich at 244 (“The Cronic test applies when the attorney’s failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.”).

2026See also Frazier, 478 Mich at 244 (“The Cronic test applies when the attorney’s failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.”).

2025See People v Pickens, 446 Mich 298, 338 ; 521 NW2d 797 (1994). 18 Trakhtenberg, 493 Mich at 51 . 19 Carson, ___ Mich App at ___ (REDFORD, J., dissenting); slip op at 14. 7 With this evidence presented at trial, there was no “reasonable probability” 20 that defendant would have been acquitted absent the evidence of the text messages.

2025See People v Pickens, 446 Mich 298, 338 ; 521 NW2d 797 (1994). 18 Trakhtenberg, 493 Mich at 51 . 19 Carson, ___ Mich App at ___ (REDFORD, J., dissenting); slip op at 14. 7 With this evidence presented at trial, there was no “reasonable probability” 20 that defendant would have been acquitted absent the evidence of the text messages.

2019The Michigan Constitution provides an identical right that must be analyzed under an identical test: [T]o receive a new trial on the basis of ineffective assistance of counsel, a defendant must establish that “counsel’s representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [People v Vaughn, 491 Mich 642, 669 ; 821 NW2d 288 (2012), quoting Strickland, 466 US at 688, 694 .] Under the objective reasonableness prong of the Strickland test,

2019The Michigan Constitution provides an identical right that must be analyzed under an identical test: [T]o receive a new trial on the basis of ineffective assistance of counsel, a defendant must establish that “counsel’s representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [People v Vaughn, 491 Mich 642, 669 ; 821 NW2d 288 (2012), quoting Strickland, 466 US at 688, 694 .] Under the objective reasonableness prong of the Strickland test,

2018While counsel’s failure to object to testimony or argument that the trial court properly admitted might rarely constitute ineffective assistance, see generally People v Riley (After Remand), 468 Mich 135, 142 ; 659 NW2d 611 (2003) (“Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless motion.”), we cannot categorically state that any time a defendant is unable to satisfy the first prong of Carines, a Strickland claim relating to the same issue must fail, given the different elements of each test. 8 Examples are helpful.

2018While counsel’s failure to object to testimony or argument that the trial court properly admitted might rarely constitute ineffective assistance, see generally People v Riley (After Remand), 468 Mich 135, 142 ; 659 NW2d 611 (2003) (“Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless motion.”), we cannot categorically state that any time a defendant is unable to satisfy the first prong of Carines, a Strickland claim relating to the same issue must fail, given the different elements of each test. 8 Examples are helpful.

2018Defendant next argues that he was denied effective assistance of counsel under Strickland, because counsel did not request a contested violation hearing. -6- To prevail on a claim of ineffective assistance of counsel, a defendant must establish that “(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would have been different.” Sabin (On Second Remand), 242 Mich App at 659 (restating Strickland test

2018Defendant next argues that he was denied effective assistance of counsel under Strickland, because counsel did not request a contested violation hearing. -6- To prevail on a claim of ineffective assistance of counsel, a defendant must establish that “(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the outcome of the proceedings would have been different.” Sabin (On Second Remand), 242 Mich App at 659 (restating Strickland test

2020“The Cronic test applies when the attorney’s failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.” Frazier, 478 Mich at 244 , citing Bell, 535 US at 697 .

2020“The Cronic test applies when the attorney’s failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.” Frazier, 478 Mich at 244 , citing Bell, 535 US at 697 .

2023Thus, [a] defendant seeking relief for ineffective assistance in this context must meet Strickland [v Washington, 466 US 668, 690 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984)]’s familiar two-pronged standard by showing: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Douglas, 496 Mich at 592 , quoting Lafler, 566 US at 163 .] Lafler did not create a new rule of law but rather only established how the familiar

2023Thus, [a] defendant seeking relief for ineffective assistance in this context must meet Strickland [v Washington, 466 US 668, 690 ; 104 S Ct 2052 ; 80 L Ed 2d 674 (1984)]’s familiar two-pronged standard by showing: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Douglas, 496 Mich at 592 , quoting Lafler, 566 US at 163 .] Lafler did not create a new rule of law but rather only established how the familiar

2021People v 2 On remand, the trial court applied the two-prong Strickland test. -8- Lockett, 295 Mich App 165, 182 ; 814 NW2d 295 (2012).

2021People v 2 On remand, the trial court applied the two-prong Strickland test. -8- Lockett, 295 Mich App 165, 182 ; 814 NW2d 295 (2012).

2020In other words, prior to asking how the Strickland test applied (“Did this attorney act unreasonably?”), Padilla asked whether the Strickland test applied (“Should we even evaluate if this attorney acted unreasonably?”). [Chaidez, 568 US at 349 ].

2020In other words, prior to asking how the Strickland test applied (“Did this attorney act unreasonably?”), Padilla asked whether the Strickland test applied (“Should we even evaluate if this attorney acted unreasonably?”). [Chaidez, 568 US at 349 ].

2026See People v Muhammad, 326 Mich App 40, 63 ; 931 NW2d 20 (2018) (stating because the “defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim”) (quotation marks and citation omitted).

2026See People v Muhammad, 326 Mich App 40, 63 ; 931 NW2d 20 (2018) (stating because the “defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim”) (quotation marks and citation omitted).

2026See Shaw, 315 Mich App at 672 . 2.

2026See Shaw, 315 Mich App at 672 . 2.

2025Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain. [Id. at 192-193.] The United States Supreme Court noted that the prosecution was still required at the guilt phase of the defendant’s trial to present admissible evidence establishing the elements of the charged crimes and that “a guilty plea is more than a confession which admits that the accused did -13- various acts” because “it is a stipulation that no proof by the prosecution need be

2025Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain. [Id. at 192-193.] The United States Supreme Court noted that the prosecution was still required at the guilt phase of the defendant’s trial to present admissible evidence establishing the elements of the charged crimes and that “a guilty plea is more than a confession which admits that the accused did -13- various acts” because “it is a stipulation that no proof by the prosecution need be

2025See People v Williams, 171 Mich App 234, 241 ; 429 NW2d 649 (1988) (“[W]e agree with the many courts which have held that an attorney’s failure to advise his client of a plea bargain offer may be ineffective assistance of counsel.”).

2025See People v Williams, 171 Mich App 234, 241 ; 429 NW2d 649 (1988) (“[W]e agree with the many courts which have held that an attorney’s failure to advise his client of a plea bargain offer may be ineffective assistance of counsel.”).

2025See id.

2025See id.