People v. Sanchez
| Decision Date | 18 May 2023 |
| Docket Number | 354925 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHRISTOPHER SANCHEZ, SR., Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Ottawa Circuit Court LC No. 19-043429-FC
Before: MARKEY, P.J., and MURRAY and FEENEY, JJ.
A jury convicted defendant, Christopher Sanchez, Sr., of one count of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (), and one count of fourth-degree criminal sexual conduct (CSC-IV) MCL 750.520e(1)(a) (). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 35 to 75 years' imprisonment for the CSC-III conviction and 10 to 15 years' imprisonment for the CSC-IV conviction. The 35-year minimum sentence for the CSC-III conviction reflected an upward departure from the guidelines range of a little over eight years. Defendant moved post-judgment for a new trial or a Ginther[1] hearing. After conducting a Ginther hearing, the trial court denied defendant's motion for new trial. Defendant appeals by right his convictions and sentences, alleging ineffective assistance of counsel, evidentiary errors, and sentencing defects. For the reasons stated herein, we affirm defendant's convictions and sentences.
Defendant's convictions arise from his sexual assault of AV, who was 15 years old at the time of the assault. AV was living with her family at a motel while more permanent housing was being readied for the family. Defendant worked night security at the motel. AV first encountered defendant when he inserted himself into a conversation that she and her mother were having about AV's workouts at the YMCA. Defendant claimed that he had been a mixed martial arts (MMA) fighter in the armed services. Later in the day, defendant went to AV's motel room and offered to show her some of his martial arts moves and videos of people whom he had trained. That evening, AV and defendant practiced MMA kicks behind the motel. At some point, defendant asked AV to kiss him on the cheek, and he told her that she could be a model considering her appearance and the manner in which she presented herself. The next day, defendant invited AV to join him and other trainees for a run on some park trails. Believing that AV would be in a public place with other people, AV's mother gave her permission to go with defendant.
Instead of taking AV to the park, defendant drove her to his house 45 minutes away from the motel. At his home, and while training AV in MMA moves, defendant sexually assaulted her by digitally penetrating her vagina and fondling and licking her right breast. Afterward, defendant drove AV back to the motel. She immediately informed her mother about the sexual assault. AV's mother then called the police. AV was taken to a clinic where a sexual assault nurse examiner (SANE) performed a sexual-assault examination. A swab was taken from the nipple of AV's right breast during the examination, and later analysis of DNA obtained from the swab revealed that it matched defendant's DNA. Defendant was charged, arrested, and convicted by a jury of CSC-III and CSC-IV after a three-day trial. He was sentenced as indicated earlier.
Defendant moved for a new trial or a Ginther hearing. And after a four-day Ginther hearing, the trial court concluded that although defense counsel's performance on certain evidentiary issues was deficient, there was no reasonable probability that but for counsel's errors the results of the proceeding would have been different. Accordingly, the trial court denied defendant's motion for new trial. Defendant now appeals by right.
Defendant argues that the trial court erred by concluding that reversal was unwarranted based on ineffective assistance of counsel. We disagree. Whether counsel was ineffective presents a mixed question of fact and constitutional law, and factual findings are reviewed for clear error, whereas questions of law are reviewed de novo. People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). In People v Carbin, 463 Mich. 590, 599-600; 623 N.W.2d 884 (2001), our Supreme Court recited the well-established principles that govern a claim of ineffective assistance of counsel:
To justify reversal under either the federal or state constitutions, a convicted defendant must satisfy [a] two-part test .... First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the counsel guaranteed by the Sixth Amendment. In so doing, the defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy. Second, the defendant must show that the deficient performance prejudiced the defense. To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim. [Quotation marks and citations omitted.]
An attorney's performance is deficient if the representation falls below an objective standard of reasonableness. People v Toma, 462 Mich. 281, 302; 613 N.W.2d 694 (2000).
Defendant argues that he suffers from severe and profound hearing loss and could not hear or understand the witnesses during trial or participate in his defense. Defendant contends that defense counsel provided ineffective assistance by failing to request or obtain hearing aids for defendant and by abandoning defendant during the testimony of two crucial witnesses. Defendant maintains that the trial court clearly erred by finding credible defense counsel's testimony at the Ginther hearing that defendant could hear the trial proceedings and did not complain about an inability to hear during trial. Defendant asserts that defense counsel knew that he wanted his prescribed hearing aids during trial but that counsel refused to help him in obtaining the hearing aids. Defendant also claims that the trial court erred by ignoring the testimony of Dr. Jerry Punch, an expert audiologist.
Defendant argues that defense counsel was not credible because his testimony at the Ginther hearing conflicted with answers that he gave in response to earlier e-mail questions from defendant's appellate counsel. Defendant provides two examples of defense counsel's purported lack of credibility. First, defendant states that defense counsel initially informed appellate counsel that he did not request hearing aids for defendant because "he did not want to lose 'credibility' before the trial court." At the Ginther hearing, defense counsel denied making that statement and admitted that he was aware of defendant's hearing-aid request but did not inform the trial court because he believed that defendant could hear and that the request was a "BS request." The trial court accepted as credible defense counsel's testimony that he did not tell appellate counsel that the hearing-aid issue was not raised so as to avoid losing credibility with the trial court. The trial court noted that defense counsel was "loquacious," that appellate counsel's interpretation of defense counsel's statements did not reflect defense counsel's intent, and that there was never a meeting of the minds between the two attorneys regarding the meaning of their conversation.
Defendant's second example of defense counsel's alleged lack of credibility arises from an e-mail exchange between defense counsel and defendant's appellate counsel in which defense counsel appeared to suggest that it was better that defendant did not hear the trial proceedings so that defense counsel could pay attention to the witnesses' testimony. At the Ginther hearing, defense counsel acknowledged his response, explaining that it was something that he wrote in jest, that it was a "very, very, very, very unprofessional" and "absolutely stupid comment," and that he never intended to suggest that he wanted defendant to be unable to participate and assist in his defense. Again, the trial court found defense counsel's explanation of the e-mail exchange to be credible and accurate. The court explained:
In the email, a flippant disregard of defendant's rights is inferred. This apparent disregard of defendant's rights is in stark contrast to trial counsel's representation of defendant during the trial in which it was obvious to the court that trial counsel was heavily invested in the defense and proper representation of defendant. While one cannot condone trial counsel's comment, the court accepts trial counsel's explanation-that this was an unprofessional comment that did not reflect trial counsel's true feelings or reality. Apparently, trial counsel believed that he had a good and open line of communication with appellate counsel and let a desire for jovial banter interfere with his professional presentation.
We have no sound basis to interfere with the trial court's determination that defense counsel was credible. A Ginther hearing is an evidentiary hearing at which the trial court serves as the fact-finder, which role requires credibility assessments. See People v White, 331 Mich.App. 144, 154; 951 N.W.2d 106 (2020) ("To the extent defendant's testimony conflicts with trial cou...
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