ineffective assistance claim in Michigan

2026Our Supreme Court has explained that a reasonable probability that the outcome would have been different “is a probability sufficient to undermine confidence in the outcome.” Id. (quotation marks and citation omitted). “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 US at 697 . -3- In this case, the prejudice prong of the ineffective-assistance inquiry is dispositive.

2020When reviewing an ineffective assistance claim, “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged,” and “[i]n every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 US at 696 . [Smith (BORRELLO, J., dissenting), unpub op at 5.] III.

2021Without needing to reach the issue of prejudice, we conclude that defendant’s ineffective assistance of counsel claim is without merit. [Id. at 384 (footnote omitted).] We note that, in his appeal to this Court, defendant’s phrasing of the ineffective-assistance claim asked whether counsel was ineffective because, by failing to present expert witnesses, counsel “deprived [defendant] of a substantial defense . . . .” Defendant’s argument included authority from this Court standing for the premise that “[t]he failure to call a witness constitutes ineffective assistance of counsel ‘when it depriv

2021Without needing to reach the issue of prejudice, we conclude that defendant’s ineffective assistance of counsel claim is without merit. [Id. at 384 (footnote omitted).] We note that, in his appeal to this Court, defendant’s phrasing of the ineffective-assistance claim asked whether counsel was ineffective because, by failing to present expert witnesses, counsel “deprived [defendant] of a substantial defense . . . .” Defendant’s argument included authority from this Court standing for the premise that “[t]he failure to call a witness constitutes ineffective assistance of counsel ‘when it depriv

2026INEFFECTIVE ASSISTANCE OF COUNSEL To prevail on an ineffective assistance claim, “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).

2026INEFFECTIVE ASSISTANCE OF COUNSEL To prevail on an ineffective assistance claim, “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).

2016See People v Horn, 279 Mich App 31, 38 ; 755 NW2d 212 (2008) (rejecting an ineffective assistance claim based on defense counsel’s alleged failure “to personally interview defense witnesses before trial” because the claimed deficiencies were “not apparent from the record.”); People v Odom, 276 Mich App 407, 417 ; 740 NW2d 557 (2007) (rejecting an ineffective assistance claim where defense counsel’s alleged failure to properly 1 See People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -2- investigate a case was not apparent from the existing record).

2016See People v Horn, 279 Mich App 31, 38 ; 755 NW2d 212 (2008) (rejecting an ineffective assistance claim based on defense counsel’s alleged failure “to personally interview defense witnesses before trial” because the claimed deficiencies were “not apparent from the record.”); People v Odom, 276 Mich App 407, 417 ; 740 NW2d 557 (2007) (rejecting an ineffective assistance claim where defense counsel’s alleged failure to properly 1 See People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -2- investigate a case was not apparent from the existing record).

2024See Weaver v Massachusetts, 582 US 286, 302 ; 137 S Ct 1899 ; 198 L Ed 2d 420 (2017) (“When a defendant first raises the closure in an ineffective- assistance claim, however, the trial court is deprived of the chance to cure the violation either by opening the courtroom or by explaining the reasons for closure.”).

2024See Weaver v Massachusetts, 582 US 286, 302 ; 137 S Ct 1899 ; 198 L Ed 2d 420 (2017) (“When a defendant first raises the closure in an ineffective- assistance claim, however, the trial court is deprived of the chance to cure the violation either by opening the courtroom or by explaining the reasons for closure.”).

2017Id. -4- Because of our conclusion, we need not reach the second prong of the ineffective- assistance test.

2017Id. -4- Because of our conclusion, we need not reach the second prong of the ineffective- assistance test.

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2018For example, an examination of defense counsel’s performance might reveal that he or she deficiently failed to develop the record or pursue a line of questioning that 19 Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966). 20 See, e.g., People v Shafier, 483 Mich 205, 224 ; 768 NW2d 305 (2009). 21 Gordon, 518 F3d at 1300 . 22 See, e.g., People v Carbin, 463 Mich 590, 600 ; 623 NW2d 884 (2001) (“In [proving deficient performance], the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy.”), citing Strickland, 466 US at 690 . 9

2026The failure to advance a meritless argument or raise a futile objection does not amount to ineffective assistance of counsel, People v Ericksen, 288 Mich App 192, 201 ; 793 NW2d 120 (2010), and the burden is on the defendant to produce factual support for an ineffective- assistance claim, People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999).

2026The failure to advance a meritless argument or raise a futile objection does not amount to ineffective assistance of counsel, People v Ericksen, 288 Mich App 192, 201 ; 793 NW2d 120 (2010), and the burden is on the defendant to produce factual support for an ineffective- assistance claim, People v Hoag, 460 Mich 1, 6 ; 594 NW2d 57 (1999).

2025Turning to defendant’s ineffective-assistance claim, our Supreme Court has explained that “a finding that a defendant failed to satisfy the prejudice prong when complaining about an error by the court will not necessarily mean that the defendant is unable to prevail on an ineffective- assistance claim relating to the same underlying issue.” People v Randolph, 502 Mich 1, 14 ; 917 NW2d 249 (2018).

2025Turning to defendant’s ineffective-assistance claim, our Supreme Court has explained that “a finding that a defendant failed to satisfy the prejudice prong when complaining about an error by the court will not necessarily mean that the defendant is unable to prevail on an ineffective- assistance claim relating to the same underlying issue.” People v Randolph, 502 Mich 1, 14 ; 917 NW2d 249 (2018).

2025See People v Sabin (On Second Remand), 242 Mich App 656, 658-659 ; 620 NW2d 19 (2000).

2025See People v Sabin (On Second Remand), 242 Mich App 656, 658-659 ; 620 NW2d 19 (2000).

2024People v Heft, 299 Mich App 69, 80 ; 829 NW2d 266 (2012).

2024People v Heft, 299 Mich App 69, 80 ; 829 NW2d 266 (2012).

2025They were distinct both in nature and effect, and therefore qualify as separate crimes for purposes 1 Defendant did not raise an ineffective-assistance claim attendant to his challenge to the scoring of OV 17. 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -3- of OV 13.

2025They were distinct both in nature and effect, and therefore qualify as separate crimes for purposes 1 Defendant did not raise an ineffective-assistance claim attendant to his challenge to the scoring of OV 17. 2 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). -3- of OV 13.

2024But, when an ineffective assistance claim is either not preserved or no evidentiary hearing was held, our review “is limited to errors apparent on the record.” People v Horn, 279 Mich App 31, 38 ; 755 NW2d 212 (2008); Matuszak, 263 Mich App at 48 .

2023People v Matuszak, 263 Mich App 42, 48 ; 687 NW2d 342 (2004).

2026To establish an ineffective-assistance claim, the defendant “bears a heavy burden to establish that (1) counsel’s performance was deficient, meaning that it fell below an objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable probability that the outcome of defendant’s trial would have been different.” Solloway, 316 Mich App at 188 .

2025See People v Solloway, 316 Mich App 174, 189-190 ; 891 NW2d 255 (2016) (explaining that a defendant fails to support an ineffective- assistance claim related to missing testimony if he fails to explain “what the missing testimony would have been” or how the testimony “would have assisted his case”).

2026“This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit of hindsight.” People v Russell, 297 Mich App 707, 716 ; 825 NW2d 623 (2012).

2026“This Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel’s competence with the benefit of hindsight.” People v Russell, 297 Mich App 707, 716 ; 825 NW2d 623 (2012).

2018See Vaughn, 491 Mich at 670 (stating that courts reviewing an ineffective assistance claim must affirmatively entertain the range of possible reasons counsel may have had for proceeding as they did).6 D.

2017Vaughn, 491 Mich at 670 .

2025See Lopez, 305 Mich App at 693 .

2022People v Lopez, 305 Mich App 686, 693 ; 854 NW2d 205 (2014).

2025See People v Ackerman, 257 Mich App 434, 455 ; 669 NW2d 818 (2003).

2025See People v Ackerman, 257 Mich App 434, 455 ; 669 NW2d 818 (2003).

2024See Nix, 301 Mich App at 207 .

2024Nix, 301 Mich App at 207 .