Ineffective assistance of counsel; People v. Carbin; People v. Toma; Matters of trial strategy; People v. Davis; People v. Trakhtenberg; Responsibility to prepare, investigate, & present all substantial defenses; People v. Chapo; Due process & equal protection; Whether the trial court should have given a mistake-of-age jury instruction; Principle that a reasonable mistake of age is not a defense to a CSC III charge; People v. Cash; People v. Kilgo; Sentencing; Scoring of OVs 11 & 19; MCL 777.41(2)(a) & (c); People v. Johnson; MCL 777.49(c); People v. Hershey; People v. Smith; Whether defendant was entitled to resentencing; People v. Francisco

Concluding that the defendant failed to show that the documents he asserted defense counsel should have presented would have made a difference at trial, the court rejected his ineffective assistance of counsel claim. It also rejected his claim that he was or may have been entitled to a mistake-of-age jury instruction, given the existing state of the law. However, it held that he was entitled to resentencing because OV 11 was improperly scored and subtracting these points altered his minimum guidelines range. He was convicted of CSC III and sentenced to 7 to 15 years. He challenged defense counsel’s failure to investigate and present documents that would have allegedly corroborated his testimony and proved he could not have committed the crime. One document was “a letter from the owner of the daycare center that provided care for defendant’s children,” stating that they were dropped off at 2:00 PM on 3/10/14. The other was “a timecard report from defendant’s employer,” indicating that he clocked in at 2:55 PM on 3/10/14. He also provided maps indicating the distances and times between his house, the daycare, his work, and the victim’s home. Assuming that it could even consider this documentation, which was attached to an unsuccessful motion to remand and his appellate brief, the court found that reversal was unwarranted. The documents did not disprove the victim’s version of events. The fact remained that defendant did not claim “that there would be any concrete evidence after further investigation that would show what he was doing between” 12:30 PM and 2:00 PM, which was “approximately the timeframe that the sexual assault had allegedly occurred. The jury could have very well believed” his timeline and still convicted him. As to his jury instruction claim, the Michigan Supreme Court held in Cash that a reasonable mistake of age is not a defense to a CSC III charge, and it denied leave to appeal in Kilgo to consider whether Cash remains viable. Finally, while the court upheld the assessment of 10 points for OV 19, the prosecution conceded that 25 points were erroneously assessed for OV 11. The court affirmed the conviction but remanded for resentencing.