Ineffective assistance of counsel for failure to present evidence of defendant’s mental capacity; People v Yost; Failure to present a diminished capacity defense or an insanity defense; Conspiracy; Failure to make a futile objection; Prejudice; Voluntary intoxication (marijuana use); Prosecutorial error; Tether references & gun evidence; Sentencing; Reasonableness of a within-guidelines sentence; Proportionality

The court held that: (1) defendant was not denied the effective assistance of counsel; (2) he was not entitled to a new trial based on prosecutorial error; and (3) his sentence was not disproportionate. He was convicted of conspiracy to commit armed robbery and third-degree fleeing and eluding for his role in driving several assailants to an apartment they robbed before leading police on a high-speed chase. The trial court sentenced him to concurrent terms of 240 to 450 months for the former and 30 to 60 months for the latter. On appeal, the court rejected his argument that he received ineffective assistance of counsel because trial counsel did not present expert testimony as to his mental capacity. Because he “substantively argued that trial counsel was ineffective for failing to present a diminished-capacity defense, this argument” was meritless. In addition, because “the only purpose for which this evidence would be presented would be to negate the intent element of the charged offense,” it was inadmissible at trial. Further, to the extent he claimed counsel was ineffective for failing to subject him to an “evaluation to determine if he lacked criminal responsibility,” he implicitly argued that “counsel was ineffective for failing to raise an insanity defense.” This, too, was meritless. Defendant “presented no evidence linking his mental health history to a lack of substantial capacity, nor [did] he present[] an expert who, on the basis of the circumstances surrounding the offense and defendant’s mental health history, could opine that defendant was not criminally responsible.” He also “was not prejudiced by his trial counsel’s failure to raise an insanity defense on the basis of” cannabis use. As to his prosecutorial misconduct claims, although the prosecution “erred by using the term ‘tether’ during closing arguments” he could not “establish that he was denied a fair and impartial trial.” And he “offered no evidence to support a conclusion that the prosecutor did not act in good faith when he elicited testimony regarding the unique attributes of” a gun. Finally, the court rejected his contention that his sentence for conspiracy to commit armed robbery was disproportionate. “Because the Legislature has determined that a defendant convicted of conspiracy does not have less culpability than one convicted of the underlying substantive offense, defendant’s alleged lesser culpability is not an unusual circumstance and does not overcome the presumption that his” within-guidelines sentence was proportionate. Moreover, he failed “to explain why the fact that the extent of his mental health history was not before the trial court was an unusual circumstance.” Affirmed but remanded solely for the ministerial task of correcting the judgment of sentence.