COA 371552 PEOPLE OF MI V KEONTA JERMAIN GILES Opinion - Per Curiam - Unpublished 7/21/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
UNPUBLISHED
July 21, 2026
10:56 AM
v No. 371552
Wayne Circuit Court
KEONTA JERMAIN GILES, LC No. 22-001511-01-FC
Defendant-Appellant.
Before: MARIANI, P.J., and O’BRIEN and WALLACE, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of one count of assault with intent
to commit murder (AWIM), MCL 750.83; one count of possession of a firearm by a person
convicted of a felony (felon-in-possession), MCL 750.224f; and two counts of carrying a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. We affirm.
I. BACKGROUND
This case arises out of a shooting at a gas station in Inkster on October 17, 2021. Michael
Bigbee testified that on that day, he walked to the Valero gas station on Middlebelt Road in Inkster.
When he arrived, he saw defendant in a car parked at a pump. Bigbee felt alarmed and fearful
upon seeing defendant because they had been involved in “a prior situation.” Bigbee nevertheless
continued to walk into the gas station building.
When Bigbee finished inside the building and walked out, he saw defendant still at the
pump. As Bigbee continued watching, defendant pulled a firearm from his waistband and said,
“Why you do that?” Bigbee did not understand what defendant meant but still retreated back into
the gas station building and locked the door.
Bigbee thought that defendant was about four to five feet from Bigbee when he began
shooting at Bigbee through the door. Bigbee testified that defendant initially pointed the gun at
Bigbee’s face. The first bullet did not make it through the door’s bullet-proof glass, but defendant
continued firing until one bullet penetrated the door and hit Bigbee’s leg. Bigbee did not notice
what defendant did after the shooting because he crawled away from the door toward the bathroom.

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Bigbee had no doubt that it was defendant who shot him. Bigbee thought that he was going to die.
Bigbee spent three months in a rehabilitation facility because his leg had been shattered.
During cross-examination, defense counsel asked Bigbee how he knew defendant, and
Bigbee described an incident in which defendant stabbed him a few weeks before the shooting.
Detective Christopher Clark with the Michigan State Police responded to the shooting as
the officer in charge. Clark interviewed Bigbee at a rehabilitation facility. Clark showed Bigbee
a photographic lineup that consisted of six photos, including a photo of defendant. Bigbee
identified defendant as the shooter from the lineup.
Detective Lieutenant Sean Street of the Michigan State Police was assigned to assist Clark.
Street reviewed the surveillance video from the gas station and determined that the suspect who
shot Bigbee was driving a purple Ford Flex. Street entered the words “purple Ford Flex” into the
Inkster report-writing system to determine whether any other officer had typed those words into a
narrative portion of a police report. Street’s search revealed defendant’s name, which led to Street
investigating defendant. Street searched social media and discovered an account in defendant’s
name. Street observed a photo posted on this account showing defendant wearing an outfit that,
in Street’s opinion, was identical to the one the shooter was wearing on the night of the shooting
as shown in the surveillance video.
Street obtained a search warrant to track the vehicle connected to defendant and placed a
tracker on the vehicle between October 25 and October 27, 2021. The vehicle was eventually
located in Milford.
Trooper William Ptisch of the Michigan State Police conducted a traffic stop of the
vehicle—a purple Ford Flex—on October 27, 2021. The vehicle was registered to Lena Lee, but
defendant was the driver and sole occupant of the vehicle. At the time of the traffic stop, defendant
was wearing an orange hooded sweatshirt similar to the one the shooter at the gas station was
wearing on the night of the shooting.
Attorney Patrick Nyenhuis testified for the defense that he initially represented defendant
in this case but had to withdraw when he became a witness. Nyenhuis explained that on March 2,
2022, while in an elevator in Inkster District Court, he heard Bigbee say, “I wouldn’t have been
here had I gotten $2,000,” then chuckle. Clark was in the elevator too, but Nyenhuis did not
believe that Clark heard Bigbee’s statement because he was preoccupied with his phone. Hearing
this statement caused Nyenhuis to withdraw as defendant’s counsel because he could not prove
that Bigbee made the statement without testifying as a witness.
Defendant testified that he did not know Bigbee and he did not believe that he had ever
seen Bigbee around the neighborhood. Defendant denied that he ever stabbed Bigbee or was
involved in any type of altercation with him. Defendant denied that he was at the Valero gas
station at Middlebelt in Inkster on October 17, 2021, though he could not say where he was that
night. Defendant testified that he told this to Clark. Defendant denied shooting Bigbee. Defendant
knew what Nyenhuis had overheard Bigbee say in the elevator. Defendant testified that another
inmate in the jail was also “pressing” defendant for money.

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Defendant testified that he was married to Lee and had used her purple Ford Flex.
Defendant explained that he rarely drove the Ford Flex because he did not have a driver’s license,
but he admitted to driving the vehicle on the day that he was arrested. Defendant agreed that the
purple Ford Flex on the surveillance video from the gas station was similar to his wife’s vehicle,
saying, “It could be the same car.”
A jury convicted defendant as stated. This appeal followed.
II. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant first claims that he was denied the effective assistance of counsel when his trial
counsel elicited testimony from Bigbee that defendant previously stabbed him.
Defendant preserved this issue by filing a motion to remand for an evidentiary hearing, but
this Court denied that motion,1 so our review is limited to errors apparent on the record. People v
Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 (2020).
A claim of ineffective assistance of counsel involves mixed questions of law and fact—
factual findings are reviewed for clear error, while questions of law are reviewed do novo. People
v Haynes, 338 Mich App 392, 429; 980 NW2d 66 (2021). Because defendant did not obtain an
evidentiary hearing, “there are no factual findings to which this Court must defer,” and our review
is limited to determining as a matter of law whether any errors apparent on the record deprived
defendant of his right to the effective assistance of counsel. Id.
“To establish ineffective assistance of counsel, defendant must show (1) that defense
counsel’s performance was below an objective standard of reasonableness under prevailing
professional norms and (2) that there is a reasonable probability that, but for counsel’s errors, a
different outcome would have resulted.” People v Jackson, 292 Mich App 583, 600-601; 808
NW2d 541 (2011). “In examining whether defense counsel’s performance fell below an objective
standard of reasonableness, a defendant must overcome the strong presumption that counsel’s
performance was born from a sound trial strategy.” People v Trakhtenberg, 493 Mich 38, 52; 826
NW2d 136 (2012). This Court “will not substitute our judgment for that of counsel on matters of
trial strategy, nor will we use the benefit of hindsight when assessing counsel’s competence.”
People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009) (quotation marks and citation
omitted).
Defendant argues that he was denied the effective assistance of counsel when his trial
counsel elicited testimony from Bigbee about a prior incident in which defendant stabbed Bigbee.
1 People v Giles, unpublished order of the Court of Appeals, entered January 24, 2025 (Docket
No. 371552). As this Court’s order specifies, that denial was “without prejudice to a case call
panel of this Court determining that remand is necessary . . . .” Id. Accordingly, while our review
of defendant’s claim is for errors apparent on the record now before us, we are not foreclosed from
determining, based upon the record, that a remand for further development of that claim is
necessary. Upon plenary review of defendant’s claim, however, we continue to see no need for a
remand to properly adjudicate the claim.

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Defendant contends that his trial counsel’s introduction of this evidence fell below an objective
standard of reasonableness and changed the outcome of the case because it allowed the prosecution
to further question Bigbee about the stabbing.
“Evidence of any other crime, wrong, or act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance with the character.”
MRE 404(b)(1). In a criminal case, however, material evidence “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, scheme, plan, or system in doing
an act, knowledge, identity, absence of mistake, or lack of accident.” MRE 404(b)(2). The
prosecution must provide notice if it intends to offer any such evidence at trial, which includes
notice of “the permitted purpose for which the prosecutor intends to offer the evidence and the
reasoning that supports the purpose . . . .” MRE 404(b)(3)(B).
In this case, the prosecution did not file a notice pursuant to MRE 404(b)(3) and did not
introduce evidence of any earlier altercation between Bigbee and defendant in its initial
examination. On cross-examination, however, defendant’s trial counsel elicited testimony from
Bigbee about a prior altercation with defendant. Bigbee testified that he had known defendant for
about one year. When Bigbee stated that he knew defendant from the neighborhood, defendant’s
trial counsel asked if Bigbee had any other knowledge of defendant other than being from the
neighborhood. Bigbee testified that he and defendant had an altercation a few weeks before the
shooting at a different gas station on Michigan Avenue. Bigbee explained that he and defendant
were together in a vehicle and drove to the gas station together. The altercation began as a verbal
argument because defendant said something disparaging about people from Inkster,2 but it became
physical outside of the car when they arrived at the gas station. After the fight, Bigbee recognized
an acquaintance, and he jumped into their car to escape defendant. Before they could drive away,
however, defendant reached through the window and stabbed Bigbee in the neck. Bigbee testified
that when he stuck his leg out of the window to kick at defendant, defendant stabbed Bigbee’s leg.
Bigbee thought he was stabbed three or four times. Bigbee sought medical attention at a hospital
but did not notify the police.
Defendant argues that it was objectively unreasonable for his trial counsel to elicit Bigbee’s
testimony about his prior altercation with defendant and open the door to the prosecutor’s
questions on that topic. We begin by noting the obvious—defendant’s trial counsel elicited this
testimony as part of counsel’s trial strategy to discredit Bigbee. Bigbee had testified at defendant’s
preliminary examination that “[a] few weeks” before defendant shot him, he had a “prior
altercation” with defendant in which things got physical between them, and defendant ultimately
“cut [Bigbee’s] face.” So, when defendant’s trial counsel asked Bigbee about the “prior
altercation” at defendant’s trial, counsel must have known where Bigbee’s testimony was heading.
In closing, defendant’s trial counsel emphasized Bigbee’s testimony about his “prior
altercation” with defendant as part of counsel’s assault on Bigbee’s credibility. Counsel noted that
when officers pulled over defendant before he was arrested, they did not find a gun or knife in the
2 Bigbee testified that he was intoxicated at the time, so he could not precisely recall the impetus
for the argument.

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vehicle or on defendant’s person, casting doubt on Bigbee’s testimony that defendant had, on two
occasions, spontaneously pulled such items from his vehicle and attacked Bigbee with them. As
for the “prior altercation” itself, defendant’s trial counsel noted that the fight supposedly began
over something small—defendant “said something disparaging about Inkster”—and escalated to
defendant “pull[ing] out a knife and stabb[ing] [Bigbee], in several parts of his body.” Counsel
also emphasized that despite the seriousness of this alleged conduct, Bigbee never reported it to
police. Defendant’s trial counsel then connected this to what Bigbee said happened on the night
of the shooting—Bigbee testified that defendant came up to Bigbee and said “why did you do
that,” which made no sense because there was “nothing on this record that Mr. Bigbee had done
anything to [defendant] that would justify that type of statement.”
This argument was but one part of defendant’s trial counsel’s attack on Bigbee’s
credibility. Defendant’s trial counsel also attacked Bigbee’s credibility by noting that he was
“wanted in Indiana”; that he initially told police that “he didn’t know who shot him or anything
about the person that was responsible for the incident”; that Bigbee said that he would not testify
if he was given money for his silence; and that Bigbee only agreed to testify after he was released
from jail—counsel emphasized, “[W]hile he’s not participating, he is in jail. And when he is
participating, he’s not in jail. I’ll leave it at that.” Given how defendant’s trial counsel used
Bigbee’s challenged testimony during closing, it is obvious that counsel’s decision to elicit the
testimony in the first place was part of counsel’s broader strategy to attack Bigbee’s credibility.
That defendant’s trial counsel’s challenged conduct was trial strategy is not enough to
defeat defendant’s ineffective-assistance claim, however. A trial strategy “in fact must be sound,
and counsel’s decisions as to it objectively reasonable.” People v Douglas, 496 Mich 557, 585;
852 NW2d 587 (2014). Otherwise, courts run the risk of “insulat[ing] the review of counsel’s
performance by calling it trial strategy.” Trakhtenberg, 493 Mich at 52.
Whether eliciting the harmful testimony from Bigbee was reasonable trial strategy presents
a closer question. Again, defendant’s trial counsel must have known that if he pursued the line of
questioning about Bigbee’s “prior altercation” with defendant, Bigbee was going to testify that
defendant had previously stabbed him. If the jury found Bigbee credible, then hearing that
defendant had previously stabbed Bigbee repeatedly would have certainly made it easier for the
jury to find defendant guilty of AWIM. On the other hand, it is not unreasonable to believe that
the jury would find incredible Bigbee’s testimony that he was stabbed in the face by defendant but
never reported it, thus diminishing the credibility of arguably the prosecution’s most important
witness. Keeping in mind that trial counsel “is given wide discretion in matters of trial strategy
because many calculated risks may be necessary in order to win difficult cases,” People v Unger,
278 Mich App 210, 242; 749 NW2d 272 (2008), and that a strategy is not unreasonable “simply
because it did not work,” People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004), we
conclude that counsel’s performance did not amount to ineffective assistance of counsel.
Defendant’s defense was actual innocence—that he was not at the gas station on the night
of the shooting, and the police were trying to pin the crime on him because his wife owned a car
similar to the one that the shooter was seen driving. This was an uphill battle in the face of the
police’s identification of defendant’s wife’s vehicle shortly after the shooting, Bigbee’s
identification of defendant as the shooter, and officers eventually stopping defendant’s wife’s
vehicle and finding defendant in the driver’s seat wearing an orange hoodie similar to the one that

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the shooter was wearing on the night of the shooting. In the face of this evidence, defendant’s trial
counsel took a risk by eliciting the challenged testimony from Bigbee in an attempt to undermine
Bigbee’s credibility. Undermining Bigbee’s credibility was essential for defendant’s defense
because Bigbee’s testimony was the only direct evidence tying defendant to the crime—as
convincing as the prosecution’s other evidence might have been, it was all circumstantial, as
defendant’s trial counsel emphasized during closing argument. Because “calculated risks may be
necessary in order to win difficult cases,” Unger, 278 Mich App at 242, and because we must
refrain from assessing the wisdom of such risks using “the benefit of hindsight,” Payne, 285 Mich
App at 190, we conclude that defendant’s trial counsel’s attempt to undermine Bigbee’s credibility
by eliciting testimony that ultimately turned out harmful to defendant did not fall below an
objective standard of reasonableness under prevailing professional norms.
Even assuming for the sake of argument that defendant’s trial counsel’s challenged conduct
was objectively unreasonable, defendant would still not be entitled to appellate relief because he
cannot establish the prejudice prong of his ineffective assistance claim. The main issue in this case
was identification—whether defendant was the individual who shot Bigbee at the gas station on
the night of October 17, 2021. Surveillance video from the gas station showed that the shooter
drove a purple Ford Flex. Searching the Inkster report-writing system for references to this type
of unique car led officers to defendant. An officer later pulled over the Ford Flex connected to
defendant and found defendant driving it, despite the vehicle being registered to Lee. There can
be no serious dispute that the purple Ford Flex that defendant was driving was highly similar to
the one seen on the gas station’s surveillance video as even defendant admitted that “[i]t could be
the same car.” The surveillance video also showed that the shooter was wearing a rather unique
article of clothing—an orange hooded sweatshirt. When defendant was pulled over, he was
wearing an orange hooded sweatshirt, and officers found a photo of defendant on his social media
wearing a similar hooded sweatshirt. All of this pointed to defendant as the shooter, and this was
confirmed by Bigbee. When officers interviewed Bigbee at the rehabilitation center in Ohio, they
showed him a photo lineup, and he identified defendant as the individual who shot him.
Considering the strength of this evidence, there is simply not a reasonable probability that the
outcome of defendant’s trial would have been different had defendant’s trial counsel not elicited
the prior-stabbing testimony from Bigbee. See Jackson, 292 Mich App at 600-601.
III. STANDARD 4 BRIEF
In a Standard 4 brief, defendant raises a host of issues. Most of the issues in defendant’s
Standard 4 brief are not developed enough to merit addressing. See People v Iannucci, 314 Mich
App 542, 545; 887 NW2d 817 (2016); People v Martin, 271 Mich App 280, 315; 721 NW2d 815
(2006), aff’d 482 Mich 851 (2008). To the extent possible, however, we will overlook this
deficiency and do our best to substantively address each of defendant’s issue.
A. SENTENCING ISSUES
Defendant argues that he is entitled to resentencing as a result of several sentencing errors.
First, he contends that the trial court erred by sentencing him as a fourth-offense habitual offender
because three of the five qualifying prior felony convictions arose from the same transaction. We

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review de novo whether a trial court properly sentenced a defendant as a fourth-offense habitual
offender. People v Anderson, 331 Mich App 552, 556; 953 NW2d 451 (2020).
The statute governing habitual offenders, MCL 769.12, provides in relevant part:
(1) If a person has been convicted of any combination of 3 or more felonies
or attempts to commit felonies, whether the convictions occurred in this state or
would have been for felonies or attempts to commit felonies in this state if obtained
in this state, and that person commits a subsequent felony within this state, the
person shall be punished upon conviction of the subsequent felony and sentencing
under section 13 of this chapter as follows:
(a) If the subsequent felony is a serious crime or a conspiracy to commit a
serious crime, and 1 or more of the prior felony convictions are listed prior felonies,
the court shall sentence the person to imprisonment for not less than 25 years. Not
more than 1 conviction arising out of the same transaction shall be considered a
prior felony conviction for the purposes of this subsection only.
Defendant is correct that three of his prior felonies arose out of the same transaction on
April 5, 2006, so the prosecution could only rely on one of those for a habitual enhancement. MCR
769.12(1)(a). But the prosecution listed five prior felonies in support of its notice for a habitual
enhancement. Without two of the felonies from April 5, 2006, three qualifying felonies remained.
At least one of those prior felonies, carrying a concealed weapon in violation of MCL 750.227,
was a listed prior felony under MCL 769.12(6)(1)(iii). Therefore, defendant’s prior record met the
requirements of MCL 769.12(1)(a), and the trial court properly sentenced defendant as a fourth-
offense habitual offender.
Defendant next argues that the trial court erred by departing from the guidelines when
sentencing him for the AWIM conviction. Defendant was not given a departure sentence,
however—the trial court sentenced defendant to the 25-year mandatory minimum for fourth-
offense habitual offenders. Relatedly, defendant argues that the trial court erred by assessing 25
points for Offense Variable 3, but because defendant was not sentenced according to the
guidelines, we need not address this issue.
Defendant also argues that the trial court erred by sentencing him to the mandatory
minimum of 25 years. “Legislatively mandated sentences are presumptively proportional and
presumptively valid.” People v Brown, 294 Mich App 377, 390; 811 NW2d 531 (2011). “In order
to overcome the presumption that the sentence is proportionate, a defendant must present unusual
circumstances that would render the presumptively proportionate sentence disproportionate.”
People v Burkett, 337 Mich App 631, 637; 976 NW2d 864 (2021) (quotation marks and citations
omitted). Defendant has not presented any circumstances that would render his sentence
disproportionate. We therefore affirm defendant’s 25-year minimum sentence.
B. PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor committed misconduct when she improperly vouched
for Bigbee’s credibility. Because defendant did not raise this issue in the lower court, it is

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unpreserved. This Court reviews unpreserved claims for plain error affecting substantial rights.
People v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). “To avoid forfeiture under
the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was
plain, i.e. clear or obvious, 3) and the plain error affected substantial rights.” People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).
A prosecutor’s misconduct only entitles a defendant to a new trial if the misconduct denied
the defendant “a fair and impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546
(2007). “Prosecutorial misconduct issues are decided case by case, and the reviewing court must
examine the pertinent portion of the record and evaluate a prosecutor’s remarks in context.”
People v Rodriguez, 251 Mich App 10, 30; 650 NW2d 96 (2002). “A prosecutor may not vouch
for the credibility of his witnesses,” but arguing “from the facts that a witness should be believed”
does not constitute vouching. People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009)
(quotation marks and citation omitted).
Defendant picks four statements from the prosecutor’s rebuttal argument to support his
contention that the prosecutor vouched for Bigbee. In response to defendant’s argument that
Bigbee fabricated his story because his testimony that defendant asked Bigbee “why did you do
that” did not make sense, the prosecutor stated, “If Mr. Bigbee was coming here to lie, wouldn’t
he come here with a better story and say Mr. Giles said, oh, I’m going to get you, I’m going to kill
you.” Reviewing this statement in context of the entire rebuttal argument, it does not amount to
improper vouching. The prosecutor merely highlighted the flaws in defendant’s argument.
Defendant next objects to the prosecutor’s statement, “Now this case comes down to
credibility. Either you believe Mr. Bigbee about what happened or you don’t.” Defendant also
objects to the prosecutor’s statement, “Ask yourself, what does Mr. Bigbee have to gain by coming
to court here and testifying? Nothing. That man has everything to lose.” When read in context,
the prosecutor in these statements was merely acknowledging that the jury’s decision would
involve a question of credibility. Such statements do not amount to improper vouching or an
attempt to bolster Bigbee’s testimony.
Defendant’s final objection concerns the following statement by the prosecutor:
If Mr. Bigbee was coming here to lie, wouldn’t he come here with a better
story and say Mr. Giles said, oh, I’m going to get you, I’m going to kill you.
Instead, he said exactly what he heard Mr. Giles say, which is why you do that. He
said I don’t know what that means. That didn’t mean anything to me. All I know
next is that he pulled out a gun and started shooting me. Fired three times.
He didn’t say this man fired ten times, fifteen times, was shooting all over.
He came and he testified consistent with what the evidence was in this case. He
didn’t embellish his testimony, he didn’t lie about his testimony. He was honest
about what occurred. That statement may not have made sense to Mr. Bigbee or
anybody else for that matter, but that’s what he came here and told you the
Defendant said to him. [Emphasis added.]

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Defendant argued that Bigbee’s testimony of what defendant said to Bigbee before he shot him
did not make sense, which rendered Bigbee’s testimony unbelievable. The prosecutor’s contested
statement was a response to that argument—the prosecutor did not indicate that she had knowledge
that Bigbee was truthful but argued that Bigbee reported what he heard, and she urged the jury to
believe Bigbee because his testimony aligned with the other evidence presented at trial.
Even if the prosecutor went too far by affirmatively stating that Bigbee did not lie and that
he was honest, defendant has not established that a new trial is warranted. The trial court instructed
the jury that counsels’ statements were not evidence and were only meant to help the jury
understand their theories. Additionally, there was plenty of evidence that defendant was the
shooter, as explained earlier. This Court will not “reverse a conviction where isolated, improper
remarks did not cause a miscarriage of justice.” Id. at 25.
C. EXTORTION AND INNOCENCE
Defendant argues that Bigbee was guilty of extortion and that the prosecution knowingly
allowed false testimony although defendant was innocent. While defendant cites the elements of
extortion, he failed to provide any argument or cite any legal authority as to how Bigbee’s alleged
extortion affected defendant’s convictions or sentence. With regard to his claim of innocence,
defendant asserts that Bigbee made false statements during his testimony and that the prosecution
was aware of the statements’ falsity, but this claim is impossible to address because defendant does
not identify which of Bigbee’s statements were purportedly false, nor does he explain how we can
infer that the prosecution had knowledge of those statements’ alleged falsity.
D. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel during the plea-
bargaining process, and by his trial counsel’s withholding of evidence and failure to present
exculpatory witnesses.
At a pretrial on January 5, 2024, the prosecution reminded the trial court and defendant
that it was the cutoff date for the plea offer. The prosecution reiterated its offer of defendant
pleading guilty to the AWIM charge and the accompanying felony-firearm second offense charge
in exchange for the prosecution agreeing to a sentence of 5 to 20 years’ imprisonment for AWIM
and 5 years for felony-firearm. The prosecution also reminded the trial court and defendant that
defendant faced a mandatory minimum 25-year sentence if he was convicted at trial because of his
fourth-offense habitual offender status. Defendant did not accept the offer.
Defendant has not articulated any factual basis for his argument regarding ineffective
assistance of counsel during the plea-bargaining process, nor is any factual basis for this argument
apparent from the record. “[D]efendant has the burden of establishing the factual predicate for his
claim of ineffective assistance of counsel.” People v Solloway, 316 Mich App 174, 189; 891
NW2d 255 (2016) (quotation marks and citation omitted). Defendant has failed to meet this
burden.

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Additionally, defendant has failed to offer any factual basis for his claims of failure of
preparation and withholding evidence. On appeal, defendant filed an audio recording of a
conversation between two people speaking on the phone However, this Court’s review of
defendant’s claim of ineffective assistance of counsel is limited to errors apparent on the record,
given that no evidentiary hearing was sought or held on this claim. See Abcumby-Blair, 335 Mich
App at 227. Because this recording was not part of the record and no motion to expand the record
to include it has been filed, this Court will not review the recording.
Affirmed.
/s/ Philip P. Mariani
/s/ Colleen A. O’Brien
/s/ Randy J. Wallace

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