Ineffective assistance of counsel; Failure to share audio footage; People v Pennington; Strickland v Washington

Concluding that defendant was not denied the effective assistance of counsel, the court affirmed. She was convicted of felony-firearm. She contended “trial counsel failed to inform her of all the evidence against her, namely the audio portion of the Ring video, which prevented her from making an informed decision regarding the plea offer.” The court found that as “in Pennington, trial counsel’s alleged failure to show defendant the footage of the incident with the audio does not necessarily indicate ineffective assistance.” The record established she “viewed the video at the preliminary examination without the audio.” Although it was “difficult to hear what defendant was saying in the video, [a witness] testified about what defendant said at the preliminary examination and at trial. Defendant does not deny she was present and in the video, demonstrating her firsthand knowledge of the encounter.” Finally, as the trial court found, “the audio was relevant but not material because the elements for felonious assault and felony-firearm could be established solely by the visual footage. Defendant’s claim she did not have access to all the evidence because trial counsel allegedly never revealed the video with the audio ignores several instances where defendant was presented with that information, but still maintained her refusal of the plea offer.” The court concluded that defendant, “possessing full knowledge of the evidentiary record and potential consequences, elected to proceed to trial notwithstanding counsel’s contrary recommendation. This decision reflects not a deficiency in counsel’s representation, but rather appellant’s informed—albeit subsequently regretted—rejection of the negotiated plea agreement.” The record contained “no evidence suggesting that trial counsel’s performance fell below the objective standard of reasonableness required under Strickland.” The court found that as “the trial court correctly observed, defendant has demonstrated nothing more than post-conviction regret for rejecting the plea offer.”