Ineffective assistance of counsel; Failure to request a referral to the forensic center for competency & criminal responsibility; Failure to object to a police officer identifying defendant as the person in a video; MRE 701; Failure to request a jury instruction on third-degree arson as a lesser included offense of second-degree arson; “Dwelling” (MCL 750.71(d)); Sentencing; Right to allocute

Holding that defendant-Braun’s trial counsel did not provide ineffective assistance and that Braun was not denied her right to allocute at sentencing, the court affirmed her second-degree arson conviction and sentence. She was sentenced as a fourth-offense habitual offender to 20 to 40 years. The case arose from setting fire to a house. She argued that her trial counsel (L) was ineffective for failing to (1) “request a referral to the forensic center for competency and criminal responsibility, (2)” object to a police officer (C) identifying her as the person in a video, and (3) “request a jury instruction on third-degree arson as a lesser included offense of second-degree arson.” The court found that the record of the pretrial proceedings did not “indicate that Braun suffered from a mental infirmity.” While she was at times argumentative “and waffled regarding whether she wanted to accept the plea offer, her statements were coherent and indicated she understood what was happening and was able to logically assess her choice. The record of the trial proceedings similarly failed to suggest any mental infirmity. Braun testified at trial and was able to answer questions appropriately and coherently. Her answers indicated her awareness of what was occurring and her logical thought process. The record” did not show an inability to assist in her defense or a lack of understanding of the proceedings. Thus, the court held that L’s “representation did not fall below an objective standard of reasonableness. Similarly, the trial court did not err by failing to refer Braun for a competency examination on its own accord.” Further, L’s failure to request a criminal responsibility evaluation “did not fall below an objective standard of reasonableness considering that the result of the evaluation could not have been used to establish Braun’s diminished capacity to commit the charged offenses.” The court noted that Braun did “not contend that she was legally insane when the offenses occurred[.]” And because C’s “testimony was admissible under MRE 701,” L was not ineffective for failing to object. Her claim as to the jury instructions also failed given that “a rational view of the evidence did not support” a third-degree arson instruction “because the garage was part of the dwelling[.]”