If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 15, 2023
Plaintiff-Appellee,
v No. 359438
Macomb Circuit Court
JOHNNY JACKSON, LC No. 2020-002303-FC
Defendant-Appellant.
Before: SWARTZLE, P.J., and CAVANAGH and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right his bench trial convictions for carjacking, MCL 750.529a,
armed robbery, MCL 750.529, unlawful imprisonment, MCL 750.349b, felon in possession of a
firearm (felon-in-possession), MCL 750.224f, and possession of a firearm during the commission
of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a fourth-offense
habitual offender, MCL 769.12, to 30 to 60 years’ imprisonment for the carjacking and armed
robbery convictions. Defendant was further sentenced to 62 to 180 months’ imprisonment for the
unlawful imprisonment conviction, two to five years’ imprisonment for the felon-in-possession
conviction, and two years’ imprisonment for the felony-firearm conviction. We affirm.
This case arises out of the carjacking, unlawful imprisonment, and armed robbery of the
female victim by defendant on October 11, 2020, following their initial meeting at a gas station in
Eastpointe, Michigan. The victim entered the gas station, completed her purchase of a pack of
cigarettes, walked back out to her car, and just as she “unlocked [her] door and got ready to open
it, [defendant] came up to [the victim] with the gun to [her] head and told [her], b***h, you know
what it is, get in the car.” The victim immediately panicked, and followed defendant’s commands
to enter the car and “scoot over” to the passenger seat, while defendant continued to point the gun
at the victim. The victim never met or interacted with defendant prior to the instant incident.
Defendant proclaimed that the victim’s “baby daddy” robbed him, and the victim was going to
“help him get back at [her] baby daddy . . .” despite the victim’s repeated assertions that he had
the wrong person.
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Defendant proceeded to drive the victim’s car to her apartment, after forcing her to divulge
her home address, parked the car, and informed the victim that “if [she] tried anything or made
any sudden moves he would kill [her].” After defendant and the victim entered the apartment,
defendant searched through the victim’s purse, and removed $100 and the victim’s driver’s license.
He also acquired the victim’s cellphone. At approximately 5:00 a.m. on October 12, 2020,
defendant asked the victim to “take him to [her] baby daddy,” and defendant proceeded to drive
himself and the victim to Flat Rock, Michigan, where the father of the victim’s child resided. The
drive took approximately 45 minutes, and defendant kept the gun on his person the entire time.
Defendant thereafter ordered the victim to drive them “back to the city,” and dictated the victim
stop by a different gas station to allow defendant to purchase marijuana. After returning to the
victim’s apartment to smoke marijuana, defendant and the victim subsequently visited the
residence of defendant’s sister, and a local restaurant. While seated alone in the restaurant parking
lot, the victim was able to contact a friend for help.
Following the trip to the restaurant, defendant and the victim returned to the victim’s
apartment, where the victim was able to speak to police officers on her cellphone under the guise
she was contacting a local college concerning registration for upcoming classes. Defendant then
asked the victim to “go out to the car to get the cigarettes and, when he did that, [the victim] jumped
up and grabbed [her] keys and [her] phone and opened up the door, and the police was there, and
[she] ran out with [her] hands up.” The victim then told the “police officer everything that
happened to [her],” and defendant was subsequently arrested.
Defendant argues that his carjacking conviction should be vacated because there was
insufficient evidence to demonstrate that defendant intended to permanently deprive the victim of
her car, as required when “in the course of committing larceny of a motor vehicle” per MCL
750.529a. Defendant further advances that he was denied the effective assistance of counsel at the
pretrial stage when defense counsel overestimated his chances at trial and failed to provide
defendant with relevant discovery, which included the gas station surveillance video stipulated to
and admitted at trial, and consequently induced defendant to forgo any potential plea bargain.1 We
disagree.
I. CARJACKING CONVICTION
We review de novo a challenge to the sufficiency of the evidence. People v Byczek, 337
Mich App 173, 182; 976 NW2d 7 (2021). In evaluating a defendant’s claim concerning the
sufficiency of the evidence, this Court reviews the evidence in a light most favorable to the
prosecution to discern whether any trier of fact could find the essential elements of the crime were
proven beyond a reasonable doubt. People v Robinson, 475 Mich 1, 5; 715 NW2d 44 (2006).
“Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the
elements of the crime.” People v Head, 323 Mich App 526, 532; 917 NW2d 752 (2018). “With
1
Per the trial testimony of the victim and Detective Andrew Wood, a detective with the Eastpointe
Police Department, the aforementioned gas station surveillance footage depicted the initial
interaction between defendant and the victim, which included defendant running up to the victim,
placing the gun to her head, and forcing her in her car.
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regard to an actor’s intent, because of the difficulties inherent in proving an actor’s state of mind,
minimal circumstantial evidence is sufficient.” People v McKewen, 326 Mich App 342, 347 n 1;
926 NW2d 888 (2018).
“[D]ue process requires the prosecution to prove every element beyond a reasonable
doubt.” People v Oros, 502 Mich 229, 239 n 3; 917 NW2d 559 (2018). MCL 750.529a provides,
in pertinent part:
(1) A person who in the course of committing a larceny of a motor vehicle uses
force or violence or the threat of force or violence, or who puts in fear any operator,
passenger, or person in lawful possession of the motor vehicle, or any person
lawfully attempting to recover the motor vehicle, is guilty of carjacking, a felony
punishable by imprisonment for life or for any term of years.
(2) As used in this section, “in the course of committing a larceny of a motor
vehicle” includes acts that occur in an attempt to commit the larceny, or during
commission of the larceny, or in flight or attempted flight after the commission of
the larceny, or in an attempt to retain possession of the motor vehicle.
Carjacking is a specific intent crime, requiring the prosecution to establish beyond a reasonable
doubt that “the defendant’s acts occurred during an attempt to commit, during the commission of,
or after the commission of a larceny of a motor vehicle, [and] . . . that the defendant had the intent
to steal or permanently deprive a person of the motor vehicle.” People v Smith, 336 Mich App
297, 307; 970 NW2d 450 (2021).
Our Supreme Court has held that “the plain meaning of the phrase ‘in an attempt to commit
the larceny’ applied to ‘situations in which a criminal defendant makes “an effort” or undertakes
an “overt act” with an intent to deprive another person of his property, but does not achieve the
deprivation of property.’ ” Id., quoting People v Williams, 491 Mich 164, 174; 814 NW2d 270
(2012). The specific intent to permanently deprive the owner of his or her property “does not
require, in a literal sense, that a thief have an intent to permanently deprive the owner of the
property.” People v Harverson, 291 Mich App 171, 178; 804 NW2d 757 (2010) (quotation marks
and citation omitted). Rather, “the intent to permanently deprive includes the retention of property
without the purpose to return it within a reasonable time or the retention of property with the intent
to return the property on the condition that the owner pay some compensation for its return.” Id.
Defendant argues that the prosecution failed to establish that defendant intended to retain
the car without the purpose of returning it within a reasonable time or to return it on the condition
that the victim pay some compensation for its return. Defendant further advances that the victim
was with defendant the entire time defendant was in her vehicle, the victim consistently maintained
access to her car keys, and the victim was free to leave defendant’s presence on several occasions
while the car remained parked in her apartment lot. However, considering the evidence in a light
most favorable to the prosecution, a rational trier of fact could have found all the elements of
carjacking, including the requisite intent, had been proven beyond a reasonable doubt.
The gas station surveillance video and the victim’s testimony established that defendant
initially approached the victim at the gas station just as the victim “unlocked [her] door and got
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ready to open it, [defendant] came up to [the victim] with the gun to [her] head and told [her],
b***h, you know what it is, get in the car.” The victim immediately panicked, and followed
defendant’s commands to enter the car and “scoot over” to the passenger seat, while defendant
continued to point the gun at the victim. Defendant further proceeded to ask one of his friends,
who was present at the gas station, to “get in the car,” but the friend refused. Defendant
continuously used the victim’s car, whether he was driving the vehicle himself or forcing the victim
to drive the car on his behalf, to visit his sister’s residence, a local restaurant, the home of the
victim’s “baby daddy,” and the victim’s apartment. Defendant also obtained the victim’s driver’s
license and cellphone, and repeatedly threatened the victim by asserting “he’s got to get [her] baby
daddy because [her] baby daddy supposedly took some money from him, and [she] had to help
him, and if [she] didn’t help him he was going to kill [her].” Moreover, Detective Wood testified
that defendant admitted, during their interview, that he had taken a photograph of the victim’s
license for himself.
As the trial court opined, defendant
. . . maintained control of the vehicle, maintained control of []the victim’s freedom,
maintained control of the keys under the threat, as testified, to her, under the threat
of being shot or killed, and after being assaulted, as well, maintained control of that
vehicle by main—certainly, during the carjacking incident itself, as well as
subsequently, when he either forced her to drive or drove the vehicle himself and
maintained possession of the, of the keys which would have controlled the vehicle.
Regardless of whether defendant predicated the return of the victim’s car on the repayment
of the debt of her child’s father, or defendant intended to retain the vehicle without the purpose of
returning it within a reasonable time, it is clear that defendant intended to permanently deprive the
victim of her vehicle under either definition. See Smith, 336 Mich App at 308 (stating the
defendant demonstrated the requisite intent under the carjacking statute when the defendant hit the
officer, attempted to take his gun, and “climbed into the front driver’s side of the patrol vehicle”);
see also Harverson, 291 Mich App at 178-179 (determining that the defendant possessed the
permanent intent to deprive the victim of his property when he snatched the victim’s glasses and
told him, “you get these back when we get the phone back”).
The sole reason defendant was unable to maintain possession over the victim’s car is
because he was subsequently arrested at the victim’s apartment building after the local police
department successfully contacted the victim. Whether the underlying offense was a completed
larceny, or an attempted larceny, is irrelevant for purposes of the carjacking statute, and
defendant’s conduct demonstrated that he intended to permanently deprive the victim of her
vehicle, and potentially her life, and kept her hostage doing so. Moreover, the victim testified that
defendant withheld her driver’s license, apartment keys, and car keys throughout the two-day
incident, and the victim did not attempt to escape because defendant continuously threatened her
and asserted that “he could kill [the victim] and leave [her] in [the] apartment, and turn the air
conditioner on, and no one would know [she] was dead in [her] apartment.” In light of the record,
a rational trier of fact could have reasonably inferred and found that defendant had the intent to
steal or permanently deprive the victim of her vehicle. Therefore, the evidence is sufficient to
support the guilty verdict on the charge of carjacking.
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II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his defense attorney provided ineffective assistance of counsel at the
plea-taking stage of this case when counsel overestimated defendant’s chances at trial and failed
to provide defendant with relevant discovery, which consequently prevented defendant from
pursuing a plea deal. We disagree.
A defendant “must move in the trial court for a new trial or an evidentiary hearing to
preserve the defendant’s claim that his or her counsel was ineffective.” People v Heft, 299 Mich
App 69, 80; 829 NW2d 266 (2012). A defendant may also preserve the issue by “filing in this
Court a motion for remand to the trial court for a [People v Ginther, 390 Mich 436; 212 NW2d
922 (1973),] hearing.” People v Abcumby-Blair, 335 Mich App 210, 227; 966 NW2d 437 (2020).
While defendant moved for a new trial in the lower court based on the same arguments he now
makes on appeal, there was no evidentiary hearing to develop defendant’s claim of ineffective
assistance of counsel; therefore, this Court’s review is limited to errors apparent on the record.
See Head, 323 Mich App at 538-539. “Generally, an ineffective-assistance-of-counsel claim
presents a ‘mixed question of fact and constitutional law.’ ” People v Hieu Van Hoang, 328 Mich
App 45, 63; 935 NW2d 396 (2019), quoting People v Matuszak, 263 Mich App 42, 48; 687 NW2d
342 (2004). “Constitutional questions are reviewed de novo, while findings of fact are reviewed
for clear error.” Hieu Van Hoang, 328 Mich App at 63.
“Defendants are entitled to the effective assistance of counsel when considering or
negotiating a plea agreement.” People v White, 331 Mich App 144, 148; 951 NW2d 106 (2020).
The obligation of defense counsel, at the pretrial stage, is to properly advise the defendant
regarding “ ‘the nature of the charges or the consequences of the guilty plea[,]’ and the ‘possible
defenses to the charges to which the defendant is pleading guilty,’ so defendant has ‘the ability to
make an intelligent and informed choice from among his alternative courses of action.’ ” Id.,
quoting People v Corteway, 212 Mich App 442, 445; 538 NW2d 60 (1995). “The proper remedy
for ineffective assistance of counsel during plea negotiations will depend on the circumstances of
the case, but it could potentially entail resentencing or requiring a rejected plea to be reoffered.”
White, 331 Mich App at 148.
As with any other claim of ineffective assistance, “[t]he defendant has the burden of
establishing the factual predicate of his ineffective assistance claim.” People v Douglas, 496 Mich
557, 592; 852 NW2d 587 (2014). “In the context of pleas, a defendant must show the outcome of
the plea process would have been different with competent advice.” Lafler v Cooper, 566 US 156,
163; 132 S Ct 1376; 182 L Ed 2d 398 (2012). Consequently,
[a] defendant seeking relief for ineffective assistance in this context must meet
[Strickland v Washington, 466 US 668, 690; 104 S Ct 2052; 80 L Ed 2d 674
(1984)]’s familiar two-pronged standard by showing (1) “that counsel’s
representation fell below an objective standard of reasonableness,” and (2) “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” [Douglas, 496 Mich at 592,
quoting Lafler, 566 US at 163.]
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Lafler did not institute a new rule of law, rather, it only established how the familiar Strickland
test applied to plea negotiations. When a defendant claims to be prejudiced by rejecting a plea
offer on the basis of ineffective assistance of counsel, the defendant must show (1) “that but for
the ineffective advice of counsel there is a reasonable probability that the plea offer would have
been presented to the court (i.e., that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening circumstances)[,]” (2) “that the
court would have accepted its terms[,]” and (3) “that the conviction or sentence, or both, under the
offer’s terms would have been less severe than under the judgment and sentence that in fact were
imposed.” Lafler, 566 US at 163-164.
In this case, defendant’s claim of ineffective assistance of counsel necessarily fails because
the prosecution never extended a plea offer, never intended to extend a plea offer, and vocalized
its discontent with the limited charges against defendant during the hearing addressing defendant’s
motion for a new trial. While defendant produced a self-serving affidavit to demonstrate that there
were plea negotiations underway before trial, there is nothing in the evidentiary record to
demonstrate that was the case. We recognize that defense counsel is obligated to “properly advise
defendant . . . so defendant has the ability to make an intelligent and informed choice from among
his alternative courses of action.” White, 331 Mich App at 148 (quotation marks and citation
omitted). Defense counsel did not appear to have much leeway concerning strategy in the plea
context, which is demonstrated by the fact that between January 2021 and September 2021, the
trial court held several pretrial hearings, and there was never any discussion regarding a potential
plea. Rather, as the prosecution notes, defendant’s only two options were to go to trial or plea as
charged, neither of which would have impacted the outcome of the proceedings.
While defendant advances that he would have pursued plea negotiations with a different
state of mind if he was aware of the substantial evidence against him, which included the gas
station surveillance video and other discovery, the prosecution explicitly stated during the motion
hearing that defense counsel “continued throughout all of the pendency of this case to get a
deviation [from the charges] approved for his client[,]” by filing a written request for a lenient plea
deal, but the prosecution repeatedly denied the requests. The prosecution further asserted that
“[t]here was never going to be any reduction in charge[,]” “it would have been pointless to continue
down that road[,]” and the prosecution was “upset really that other[] charges weren’t levied against
[defendant] . . . .” Consequently, whether defense counsel provided alternative advice or shared
discovery with defendant is inconsequential when the prosecution clearly did not offer a plea nor
ever intended to do so. Moreover, as the trial court noted during the motion hearing, defendant
was asked whether he was forced into waiving his right to a jury trial or given any promises
concerning the outcome, and defendant responded in the negative.
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Ultimately, defendant cannot establish that trial counsel’s performance prejudiced him, and
thus, defendant is not entitled to relief.
Affirmed.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ Anica Letica
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