People v. Gioglio

Decision Date20 March 2012
Docket NumberDocket No. 293629.
PartiesPEOPLE v. GIOGLIO (On Remand).
CourtCourt of Appeal of Michigan — District of US


Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jeffrey R. Fink, Prosecuting Attorney, and Cheri L. Bruinsma, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Desiree M. Ferguson) for defendant.




This is the second time that defendant Jeffrey Paul Gioglio's appeal is before this Court. In our prior opinion, the majority examined in detail the evidence and events surrounding Gioglio's trial; for the sake of brevity, we will not restate the facts here. See People v. Gioglio, 292 Mich.App. 173, 176–192, 807 N.W.2d 372 (2011). The majority determined that Gioglio's trial lawyer, Susan Prentice–Sao, did not subject the prosecution's case to meaningful adversarial testing. Id. at 201, 807 N.W.2d 372. After concluding that Prentice–Sao had failed in this regard, the majority presumed that Gioglio suffered prejudice as provided under United States v. Cronic, 466 U.S. 648, 658–659, 666, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Gioglio, 292 Mich.App. at 202, 807 N.W.2d 372. The dissent disagreed with the majority's conclusion that prejudice should be presumed under Cronic. Instead, the dissent would have analyzed Gioglio's claim that Prentice–Sao did not provide effective assistance of counsel under the test stated in Strickland v. Washington, 466 U.S. 668, 687, 691–692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gioglio, 292 Mich.App. at 236–237, 807 N.W.2d 372 (Kirsten Frank Kelly, J., dissenting). Our Supreme Court agreed with the dissent and determined that it was error to presume prejudice under Cronic. See People v. Gioglio, 490 Mich. 868, 802 N.W.2d 612 (2011). Accordingly, it remanded the case back to this Court “for consideration of whether defense counsel's performance was ineffective under Strickland in addition to consideration of Gioglio's remaining issue on appeal. Id.

After our Supreme Court remanded the case to this Court, we determined that before we could properly analyze Gioglio's claims under the test stated in Strickland, it would be necessary to remand this case back to the trial court for resolution of certain key factual disputes. See People v. Gioglio, unpublished order of the Court of Appeals, entered November 15, 2011 (Docket No. 293629). In an opinion and order entered on January 11, 2012, the trial court resolved those factual disputes.

We now consider Gioglio's claim that he did not receive the effective assistance of counsel that is guaranteed to all criminal defendants. For the reasons more fully explained below, we conclude that Gioglio failed to establish that any specific act or omission by Prentice–Sao amounted to the ineffective assistance of counsel. Accordingly, he is not entitled to a new trial on that basis. Further, because there were no other errors warranting relief, we affirm.


In our order remanding this matter to the trial court, we ordered the trial court to make “more definite findings on the factual questions identified in [the] order....” Id. We identified the factual issues as whether Prentice–Sao actually “told the prosecutor that she believed that her client was guilty,” whether she “had a bias against [Gioglio] and acted on that bias,” and whether she “expressed enthusiasm for [Gioglio's] lengthy sentence.” Id. We also noted in passing that the trial court “did not address a series of other actions that [Prentice–Sao] took or might have failed to take.” Id. We then cited, by way of example, footnote 7 of the majority opinion. Id., citing Gioglio, 292 Mich.App. at 202 n. 7, 807 N.W.2d 372. Although we did not specifically direct the trial court to address the acts and omissions identified in footnote 7, the prosecution argues in its supplemental brief that it was “ appropriate” for the trial court to choose not to address those issues. Specifically, the prosecution maintains that the issues identified in footnote 7 were not properly raised in Gioglio's original motion for a hearing on his claim of ineffective assistance of counsel and, therefore, the trial court did not have to address them. For the same reason, the prosecution argues that this Court should limit its analysis to those claims that Gioglio properly raised in his original appeal.

This Court is an error-correcting court that has broad authority to take corrective action with regard to lower court proceedings. See Burns v. Detroit (On Remand), 253 Mich.App. 608, 615, 660 N.W.2d 85 (2002); see also Up & Out of Poverty Now Coalition v. Michigan, 210 Mich.App. 162, 168, 533 N.W.2d 339 (1995) (We are also mindful that this Court functions as a court of review that is principally charged with the duty of correcting errors.”). We have the power to “exercise any or all of the powers of amendment of the trial court or tribunal,” to “permit amendment or additions to the grounds for appeal,” and to “permit amendments, corrections, or additions to the transcript or record.” MCR 7.216(A)(1), (3), and (4). This Court also has the power to “enter any judgment or order or grant further or different relief as the case may require,” MCR 7.216(A)(7) (emphasis added), and we may enforce our orders through our contempt power, see In re Contempt of Dougherty, 429 Mich. 81, 91 n. 14, 413 N.W.2d 392 (1987). Therefore, this Court has the authority to order the trial court to make findings and address issues that were not raised in the original motion for an evidentiary hearing.

In addition, although we will not normally consider issues that the trial court did not have the opportunity to address, this Court can—and will—overlook preservationrequirements if it is in the interests of justice to do so. See Smith v. Foerster–Bolser Constr., Inc., 269 Mich.App. 424, 427, 711 N.W.2d 421 (2006). Indeed, this Court may even raise and address issues sua sponte. See City of Dearborn v. Bacila, 353 Mich. 99, 118, 90 N.W.2d 863 (1958) (recognizing that there “is no hard and fast rule that appellate courts, sitting either in law or equity, cannot and, hence, do not raise and decide important questions sua sponte); see also People v. Yost, 278 Mich.App. 341, 388, 749 N.W.2d 753 (2008) (addressing an issue sua sponte because the Court was convinced that the trial court committed plain error and that it was likely to repeat the error on remand). Accordingly, the fact that Gioglio might not have raised a particular issue before the trial court, while certainly relevant to this Court's resolution of a claim of error, does not necessarily preclude this Court from granting relief. It is for this Court alone to determine whether and to what extent an issue was improperly preserved, waived, or otherwise ineligible for appellate relief on procedural grounds. And, as we are bound to follow the dictates of our Supreme Court's orders, the trial court was bound to follow the dictates of this Court's order “in the utmost good faith.” See Werkhoven v. City of Grandville (On Remand), 65 Mich.App. 741, 744, 238 N.W.2d 392 (1975); see also Sokel v. Nickoli, 356 Mich. 460, 464, 97 N.W.2d 1 (1959) (“The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court.”). Thus, contrary to the prosecution's claims, the trial court was not free to disregard our order on the basis of a belief that an issue addressed by our order was not properly raised. Nevertheless, as we have already recognized, we did not specifically order the trial court to address the issues identified in footnote 7; rather, we cited that footnote in passing and in the general context of the need for a remand. And we are satisfied that the trial court made a good-faith effort to comply with our order on remand. Werkhoven, 65 Mich.App. at 744, 238 N.W.2d 392.

Moreover, the prosecution's fear that we might address the issues that were identified in footnote 7 is unfounded. This Court will exercise its ability to address unpreserved issues only in the most exceptional circumstances. Booth Newspapers, Inc. v. Univ. of Mich. Bd. of Regents, 444 Mich. 211, 234 n. 23, 507 N.W.2d 422 (1993); see also Bacila, 353 Mich. at 118, 90 N.W.2d 863 (recognizing that appellate courts have the power to address unpreserved issues, but stating that the “power is exercised sparingly” and with full realization of the restrictions and limitations inherent in the power's employment). In our prior opinions, both the majority and the dissent recognized that Gioglio had not properly raised those issues and, accordingly, that those errors could not serve as a basis for granting relief. See Gioglio, 292 Mich.App. at 202–203 & n. 7, 807 N.W.2d 372 (M.J. Kelly, P.J.); id. at 224 n. 3, 807 N.W.2d 372 (Kirsten Frank Kelly, J., dissenting). As such, we shall limit our analysis of Gioglio's claim of ineffective assistance to those acts and omissions that he arguably raised in his original brief on appeal.


Whether a defendant's trial counsel was ineffective is not a matter of historical fact; rather, both the performance and prejudice components of the ineffectiveness inquiry involve mixed questions of fact and law. Strickland, 466 U.S. at 698, 104 S.Ct. 2052. This Court reviews de novo, as a question of constitutional law, the determination that a particular act or omission fell below an objective standardof reasonableness under prevailing professional norms and prejudiced the defendant's trial. People v. Dendel, 481 Mich. 114, 124, 748 N.W.2d 859 (2008) (noting that appellate courts review the facts underlying a trial court's decision on a claim of ineffective assistance of counsel for clear error, but...

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