Ineffective assistance of counsel; Stipulation to join the two cases for trial; Joinder; Reliance on People v Tobey & People v Daughenbaugh; MCR 6.120(C); MCR 6.120(B)(1)(b) & MCR 6.120(B)(2)

The court held that “because defendant’s absconding and possession charges were related under MCR 6.120(B), his trial counsel’s stipulation to join the two cases for trial did not fall below an objective standard of reasonableness. And even if it did,” he could not show that it was “reasonably probable that the outcome of the charges against him would have been different but for the stipulation.” Thus, he did “not overcome the strong presumption that he received effective assistance of counsel.” He was convicted of meth possession and absconding on bond. He believed that “had his trial counsel objected—rather than stipulated—to the joinder of his cases, MCR 6.120 would have required the trial court to sever them.” In support, he relied primarily on Tobey and Daughenbaugh. “But those matters are no longer good law—our Supreme Court has expressly held that MCR 6.120 superseded Tobey, and similarly ‘reject[ed] the analysis of Daughenbaugh in accordance with the plain language of MCR 6.120.’” The court found that even “looking past this void in defendant’s argument, MCR 6.120(C) does not mandate separate trials in this case.” The court noted that his “absconding case arose directly out of his bond condition violation—i.e., his failure to appear—in the possession case. As such, the two offenses were based on a series of connected acts under MCR 6.120(B)(1)(b). What is more, [he] does not claim, nor does the record indicate, that any other relevant factor weighed against joinder.” Thus, joinder of the two cases was “appropriate under MCR 6.120(B). Because ‘[f]ailing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel,’ defendant has thus failed to overcome the strong presumption that his trial counsel’s assistance was effective.” The court added that even “assuming the cases should have remained separate under MCR 6.120(C) and that defense counsel’s stipulation to the joinder fell below an objective standard of reasonableness,” under the circumstances, defendant could not establish “the outcome would have been different.” In arguing to the contrary, he noted “that the prosecution did not file a notice of intent to use other-acts evidence as required under MRE 404(b)(3).” But he did not provide any “legal authority indicating that the prosecution needed to do so once the cases were joined, nor that its failure to do so would necessarily render misjoinder prejudicial.” Finally, he offered “no explanation as to why the jury instructions here were insufficient to cure any misjoinder-related error.” Affirmed.