Ineffective assistance of counsel; Failure to object; Prejudice; People v Yeager; Sentencing; Scoring of OV 11; MCL 777.41(1)(c); People v Johnson; Consecutive sentencing; MCL 750.520b(3); People v Bailey

In defendant’s appeal, the court rejected his ineffective assistance of counsel claim. In the prosecution’s appeal, it held that the trial court did not err in scoring 0 points for OV 11 and in imposing concurrent, rather than consecutive, sentences for defendant’s CSC I convictions. Defendant asserted his trial counsel was deficient for not objecting to testimony by the doctor (G) who examined the victim about what the victim said during the exam. The court concluded that “even if counsel performed deficiently, defendant” failed to show there was a reasonable probability that the trial’s outcome would have been different. It noted that “the victim’s testimony about the assaults was corroborated by defendant’s signed confession.” Thus, even if trial counsel had objected to G’s “hearsay testimony and the trial court had refused to admit [it] into evidence, it is unlikely the jury would have reached a different verdict in light of the great weight carried by defendant’s confession to the same allegations to which the victim testified.” The court further noted that “trial counsel repeatedly testified at the Ginther hearing that defendant personally and adamantly insisted that [G’s] report and testimony come into evidence so that trial counsel could cross-examine [G] regarding the victim’s allegations in a manner designed to elicit doubt as to defendant’s guilt. Arguably, if the evidence could have been excluded on hearsay grounds, then trial counsel had an obligation to at least inform and advise defendant of that option. But there is no record evidence that, had trial counsel done so, defendant would have supported an objection to the hearsay testimony rather than continuing to demand that it come into evidence.” As to the prosecution’s appeal, 0 points were properly scored for OV 11 given “the lack of evidence establishing a connective relationship between defendant’s additional criminal sexual penetrations and the sentencing offenses[.]” And there was “no clear error in the trial court’s finding a lack of evidence that the multiple penetrations occurred immediately following one another so as to be part of a continuous time sequence and accordingly the same transaction.” As a result, it correctly concluded that it lacked the authority to impose consecutive sentences. Affirmed.