Ineffective assistance of counsel; Trial strategy; Failure to make a futile objection; Prejudice; Right to a properly instructed jury; People v Dobek; First-degree home invasion; MCL 750.110a(2); Specific intent; Lesser-included offense; People v Wilder; Entering without permission as a necessarily included lesser offense of first-degree home invasion; People v Silver; Third-degree home invasion; Sentencing; Scoring of OV 1 (aggravated use of a weapon); MCL 777.31(1)(d); Use of brass knuckles; Scoring of OV 2 (lethal potential of the weapon used or possessed); MCL 777.32(1)(e); Scoring of OV 9 (number of victims); MCL 777.39(1)(c); Reasonableness & proportionality; Presumptive proportionality of a within-guidelines sentence; People v Powell

The court held that defendant was not denied the effective assistance of counsel, and there were no errors in his sentencing. He was convicted of first-degree home invasion and assault and battery for unlawfully entering the victim’s home and assaulting him. The trial court sentenced him, within the guidelines range, to 100 to 320 months for the home invasion conviction. On appeal, the court rejected his argument that his trial counsel was ineffective for failing to request jury instructions on specific intent, entering without permission, and third-degree home invasion. A specific intent “instruction was not warranted under the prosecution’s theory of the case and defense counsel cannot be deemed ineffective for failing to request it.” The court also rejected his claim that his trial counsel should have requested instructions on the lesser offenses of entering without permission and third-degree home invasion. “[E]ven accepting that third-degree home invasion is a necessarily included lesser offense, counsel was not ineffective for failing to request the instruction in this case.” The defense here was that defendant did not enter the victim’s “home without permission or unlawfully, making him innocent of any charge that included entry. The cited lesser included offense instructions are contrary to that defense theory. Accordingly, counsel made a reasonable strategic decision not to request those instructions.” Finally, the court rejected his contention that the trial court erred in scoring OVs 1, 2, and 9, and that his within-guidelines home invasion sentence was disproportionate and unreasonable. The evidence that defendant used brass knuckles in the attack was sufficient to support the scoring of OVs 1 and 2, and the fact that a second victim was injured trying to break up the fight was sufficient to support the scoring of OV 9. Moreover, his sentences were within the appropriate guidelines ranges and he “failed to establish any scoring errors or identify any inaccurate information relied upon by the” trial court. Affirmed.