Ineffective assistance of counsel; Aggravated stalking; People v Threatt; Showing that defendant was in violation of a probation condition; MCL 750.411i(2)(b); Trial strategy; Advice as to a plea offer; Failure to object to other acts evidence; Sentencing; Effect of a within guidelines sentence; MCL 769.34(10)

Rejecting defendant’s ineffective assistance of counsel claims, and his argument as to the interpretation of the aggravated stalking statute, the court affirmed his conviction of that offense, and his within guidelines sentence. He was also convicted of using a computer to commit a crime. He was sentenced as a fourth-offense habitual offender to 46 months to 15 years for each conviction. He argued that his trial counsel “presented a ‘novel’ but ‘foolish’ trial strategy, arguing that defendant’s continued contacts with the victim could only violate the aggravated stalking statute if defendant’s probation order contained a provision specifically forbidding him from contacting her.” The court noted that, in light of the evidence establishing that he “engaged in the ‘unconsented contact’ forbidden by the stalking statute and that he had violated the misdemeanor stalking statute . . . ; trial counsel was faced with trying to keep defendant from being convicted of the more serious felony offense of aggravated stalking.” He determined the best way to do so “was to argue to the jury that the victim initiated some of the telephone contacts and had encouraged some of the contact, while benefiting from living in the apartment leased by defendant. Trial counsel also chose to argue to the jury that the ‘blanket’ no-contact provision of the probation order did not apply because defendant ‘had a relationship with her’ and she was not specifically ‘mentioned in’” the order. This decision appeared to be a valid one “based on a reasonable trial strategy: he could present the legal issue to the trial court, likely lose, and thus be forbidden from making that argument to the jury, or he could instead make the argument directly to the jurors in the hope that they would find it persuasive.” The court has held in several unpublished decisions “that where a trial counsel lacks a viable defense, it is not unreasonable to attempt to pursue a defense of jury nullification.” It found that it was a reasonable trial strategy to present evidence the victim initiated some of the phone “calls and that she continued to live in an apartment leased by defendant, combined with defendant’s testimony that he still loved her and simply wanted to convince her to reconcile with him[.]” Trial counsel succeeded in getting him acquitted of two other charges using this evidence.