Criminal contempt; Principle that there is no right to a jury trial for contempt proceedings for PPO violations; MCR 3.708(H)(1); Brandt v Brandt; Principle that the Sixth Amendment guarantees a jury trial for criminal contempt proceedings only if the actual punishment imposed is greater than six months; Bloom v Illinois; Ineffective assistance of counsel; Alleged failure to subject the prosecution’s case to meaningful adversarial testing; United States v Cronic

The court held that defendant was not entitled to a jury trial for criminal contempt, and that he was not denied the effective assistance of counsel. The trial court issued an ex parte PPO, prohibiting defendant, in part, from communicating with LH and going to her home. After finding he violated the PPO three times, it held him in criminal contempt and sentenced him to 93 days in jail for each violation, to run concurrently. On appeal, the court rejected his argument that he was entitled to a jury trial. It noted that “criminal contempt proceedings are exempted from the right to a jury trial that attaches to proceedings concerning criminal statute violations. Clearly, relative to a defendant’s right to a trial by jury, criminal contempt actions involving PPO violations are treated differently than violations of criminal statutes in Michigan.” As such, his claim “he was entitled to a jury trial because defendants accused of misdemeanors are entitled to jury trials is unpersuasive.” In addition, he “was not entitled to a jury trial under the Sixth Amendment.” As to his ineffective assistance of counsel claim, the court found that “defense counsel’s performance does not fall under the second Cronic prong because defense counsel did not ‘entirely fail’ to subject the prosecution’s case to meaningful adversarial testing.” In addition, “defense counsel knew the factual underpinnings of the case and made his best arguments on behalf of defendant.” And defendant failed to “point to any specific failure by counsel or any record evidence that would illustrate” a lack of preparedness. Further, because he did not offer “any proof that there was useful information defense counsel could have elicited from other witnesses,” his claim that defense counsel failed to subpoena witnesses was meritless. Likewise, his claims that “defense counsel was not fully prepared for cross-examination and was unaware that the prosecution was going to offer text messages are unsupported by the record,” which actually showed that “defense counsel conducted a thorough cross-examination of LH, which demonstrated defense counsel’s knowledge of specific financial incentives LH had to file for the PPO, and trial counsel’s knowledge of text messages between LH and defendant that could have been interpreted as LH inviting defendant onto her property” on one of the dates in question. Finally, since the “decision to keep defendant’s testimony and proceed with cross-examination was made after he properly understood the Fifth Amendment privilege, defense counsel’s decision did not constitute deficient performance based on a misunderstanding of the” privilege. And the outcome “was not a result of defense counsel’s deficient performance, but of defendant’s own admissions.” Affirmed.