Sentencing; Ineffective assistance of counsel; Failure to make a reasonable effort to secure a lower minimum sentence; Miller v Alabama; People v Ginther hearing; Life without parole (LWOP)

The court concluded that defendant’s claim “his counsel failed to perform effectively by negotiating an even lower minimum sentence ha[d] no basis or support in the” trial court record. Also, given that he “failed to identify any acts or information to suggest counsel inadequately prepared for” his resentencing, he “failed to establish the need to conduct a Ginther hearing, that such a hearing would reveal information to suggest counsel was ineffective, or that defendant was somehow prejudiced by counsel’s alleged failure ‘to do more’ to reduce his sentences.” He was convicted of first-degree murder, committed as a juvenile, and sentenced to mandatory LWOP. On remand, he was resentenced to 32½ to 60 years for each count, in accordance with a sentencing agreement. He claimed his counsel was ineffective for settling with the prosecutor for a sentence “rather than engaging in a reasonable effort to secure a lower sentence. Defendant, in a signed, notarized statement attached to his brief on appeal, assert[ed] counsel did not prepare for his resentencing hearing by gathering background information to support a lesser sentence.” He further asserted “he wanted to have a hearing where mitigating factors could be presented to the trial court, but his counsel ‘would not fight for [him].’” But he submitted the statement for the first time on appeal. At his “resentencing hearing, he was twice asked by the court if he was waiving his right to have a hearing and defendant twice responded that he was doing so.” Thus, even if the court considered his “improperly submitted affidavit, it is insufficient to overcome defendant’s own acknowledgment in open court of his desire to waive the necessity of conducting a Miller hearing.” The court further found that he provided “no analysis or allegations to support the assertion counsel was ineffective.” Defendant failed “to explain how counsel’s performance fell below an objective standard of reasonableness, or how he was prejudiced by alleged instances of ineffective assistance of counsel.” Further, the court noted that counsel submitted “a sentencing memorandum, which included information regarding defendant’s background and behavior in prison, which the trial court clearly reviewed based on statements made by the judge indicating consideration of this information. When given the opportunity to provide additional information for the trial court to consider, defendant’s only comment was to correct the length of time he had been free of misconducts while in prison. [He] did not offer any other or alternative mitigating factors for consideration.” On appeal, he still failed “to identify any additional mitigating factors that should have been presented to or considered by the trial court.” Affirmed.