STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,UNPUBLISHED
September 13, 1994
Plaintiff-Appellee,
v No. 153967
LC No. 91008969
DAVID TUCKER,
Defendant-Appellant.

Before: Sawyer, P.J., and Weaver and S.A. Turner,* JJ.

 

PER CURIAM.

Defendant was originally charged with assault with intent to commit murder. MCL 750.83; MSA 28.278. Following a bench trial, he was convicted of assault with intent to do great bodily harm less than murder. MCL 750.84; MSA 28.279. He was sentenced to a term of six to ten years in prison. He now appeals and we affirm.

Defendant first argues that he is entitled to a new trial because he was denied his right to effective assistance of counsel. In reviewing claims of ineffective assistance of counsel, this Court conducts a two-step inquiry. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991). First, defendant must establish that defense counsel's performance was deficient and that under a reasonableness standard the error was so serious that counsel was not functioning as an attorney guaranteed by the Sixth Amendment. Id. Defendant must then show prejudice as a result of the alleged errors. Id., citing Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Defendant bears the heavy burden of overcoming the presumption that the challenged actions might be considered sound trial strategy. Id. Reversal is unwarranted unless defendant can show that, but for the claimed error, he would have had a reasonable chance of acquittal. People v Cavitt, 189 Mich App 31, 32; 471 NW2d 630 (1991). To prove that trial counsel was unprepared for trial, a defendant must show prejudice resulting from the alleged lack of preparation. People v Caballero, 184 Mich App 636; 459 NW2d 80 (1990). Defendant has failed to show that, but for the claimed error, he would have had a reasonable chance of acquittal. Cavitt, supra. Defendant also has failed to show prejudice of any kind resulting from counsel's alleged lack of preparation. Caballero, supra. Accordingly, reversal is not warranted.

Defendant next argues that he should be resentenced since his sentence was disproportionate to the crime he committed. An appellate court should not substitute its judgment for that of a sentencing judge absent an abuse of discretion evidenced by a violation of the principle of proportionality. People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). The trial judge adequately stated his reasons for departure from the guidelines and we are not persuaded that the sentence violates the principle of proportionality .

Affirmed

/s/ David H. Sawyer

/s/ Elizabeth A. Weaver

Turner, J., not participating.

 

* Circuit judge, sitting on the Court of Appeals by assignment.