Ineffective assistance of counsel; Drug profile evidence; People v Murray; Possession with intent to deliver meth; Great weight of the evidence; People v. Lacalamita; People v Knepper; Sentencing; Proportionality; “Unusual circumstances” required to overcome the presumption that a within-guidelines sentence is proportionate; People v Burkett

Rejecting defendant’s ineffective assistance of counsel claim, the court held that the trial court did not abuse its discretion in denying his motion for a new trial. It also found no abuse of discretion in the admission of drug profile evidence. Further, the court disagreed with defendant’s claim that the verdict convicting him of possession with intent to deliver meth was against the great weight of the evidence. Lastly, it held that the trial court did not abuse its discretion in sentencing him as a fourth-offense habitual offender to 84 to 300 months. He claimed that his trial counsel was ineffective for failing to investigate and call a witness (P) who “would testify at trial that defendant did not sell drugs from” witness-T’s home and that defendant was simply a drug user. The court concluded “the trial court did not clearly err in its factual findings that [P’s] affidavit failed to demonstrate that defense counsel’s performance was deficient.” In addition, the affidavit did not “support the underlying factual predicate for the claim of ineffective assistance of counsel and” show a reasonable probability of a different outcome. P stated “that she saw defendant three times in a two- to three-month period. [P] then stated that, during these limited contact periods, she did not see [him] sell drugs. [P] then seemingly relied on hearsay, specifically the fact she never ‘heard’ that defendant sold drugs, to conclude that he was merely a drug user and not a drug dealer. But it was apparent that [P] had isolated contact with defendant and could not account for his actions on a daily or monthly basis. And, [P] never disclosed her purpose at [T’s] home; whether she purchased drugs there; if so, the types of drugs purchased; and the impact of drug consumption, if any, on her perception and memory. Further, when the search warrant was executed, [P] was in a back bedroom while defendant was apprehended in the dining area. In her affidavit, [P] failed to disclose her degree of contact and conversation with defendant when they were both at [T’s] home and whether they were even in the same room. Indeed, if defendant was merely a street-level dealer selling drugs simply to fund his own habit, his infrequent sales would not be apparent to an acquaintance with whom he had few contacts, such as” P. The court added that her failure to see him “engaged in a drug transaction and her opinion that [he] was merely a drug user did not” establish deficient performance or prejudice. Affirmed.