Ineffective assistance of counsel; The prosecution’s closing argument as to self-defense; Request for remand for a Ginther hearing; Sentencing; PRV 2; MCL 777.52(1)(a) & (c); OVs 3 & 5; MCL 777.33(1)(c); MCL 777.35(1)(a) & (2); Habitual offender sentencing; MCL 769.11(1) & 769.12(1); MCL 777.21(3)(b) & (c)

The court rejected defendant’s ineffective assistance of counsel challenges to his convictions and his request for remand for a Ginther hearing. But it agreed with the parties that he was entitled to resentencing due to an error in scoring PRV 2 and because he should have been sentenced as a third-offense (rather than fourth-offense) habitual offender. He was convicted of second-degree murder, FIP, and felony-firearm. He was sentenced to 40 to 60 years for second-degree murder, 5 to 10 for FIP, and 2 years for felony-firearm. While he asserted that defense counsel should have more forcefully questioned an eyewitness (W), the court found that the cross-examination was vigorous and reasonable. As to the failure to object to the prosecution’s closing argument, the prosecution “was not precluded from arguing that the facts and circumstances of this case did not support the defense theory of self-defense.” In addition, even if the argument could be “read to improperly suggest that a defendant charged with” FIP cannot assert self-defense, defendant’s claim still failed because defense counsel may have reasonably declined to object “in order to avoid drawing the jury’s further attention to defendant’s status as a convicted felon.” He also failed to show prejudice. But while the court rejected defendant’s challenges to the OV scoring, it held that he was “entitled to resentencing because defense counsel was ineffective in agreeing to the erroneous assessment of 30 points for PRV 2.” The prosecution conceded on appeal that the PSIR showed defendant only had 2 prior low severity felony convictions and thus, he should have only been assessed 10 points under PRV 2. The prosecution also conceded on appeal that he “should have been sentenced as a third-offense habitual offender rather than a fourth-offense habitual offender. . . . Defense counsel was ineffective because there was no valid strategic reason to agree to sentencing defendant as a fourth-offense habitual offender. Defendant was prejudiced because the upper limit of the guidelines range is increased by 50% for third-offense habitual offenders but by 100% for fourth-offense habitual offenders.” Affirmed as to his convictions but remanded for resentencing.