                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    April 27, 2017
               Plaintiff-Appellee,

v                                                                   No. 331113
                                                                    Kalamazoo Circuit Court
LESTER JOSEPH DIXON, JR.,                                           LC No. 2015-001212-FH

               Defendant-Appellant.


Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ.

PER CURIAM.

       Defendant, Lester Joseph Dixon, Jr., appeals as of right from his jury trial conviction of
second-degree fleeing and eluding, MCL 257.602a(4)(b). The trial court sentenced defendant as
a fourth-offense habitual offender, MCL 769.12, to a prison term of 19 months to 10 years.
Defendant contends on appeal that he was denied effective assistance of counsel during the plea-
bargaining process. We disagree.

                   I. RELEVANT FACTS AND PROCEDURAL HISTORY

        Officer Brett Bylsma of the Kalamazoo Police Department testified at defendant’s trial
that, on the evening of August 7, 2015, he was sitting in his marked patrol car monitoring a
downtown Shell gas station when a white, 2014 Chevrolet Malibu parked at the station drew his
attention. A check of the license plate number revealed that that the registrant of the car was
defendant’s mother. Further investigation revealed that defendant, whom the Officer believed to
be driving the car, lived with his mother upon occasion, did not have a valid driver’s license, and
was the subject of a valid arrest warrant. Officer Bylsma approached the Malibu and looked
inside to satisfy himself that defendant was the driver. Upon doing so, he observed the passenger
smoking what he believed to be marijuana. Officer Bylsma said that he awaited backup to assist
in arresting defendant, until it appeared that defendant was going to drive away, at which point
the officer activated his patrol car’s siren and overhead lights. Defendant appeared to hesitate,
but then entered traffic and drove away, with Officer Bylsma in pursuit. Officer Bylsma testified
that he abandoned the pursuit out of safety concerns because defendant was driving at speeds
approaching 100 miles per hour through a 35-mile-per-hour residential area. Police later arrested
defendant, and the prosecutor charged him as indicated.

       On November 3, 2015, the prosecution filed two motions in limine, only one of which is
relevant to the instant appeal. To show defendant’s motive for fleeing the Shell station, the
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prosecution asked the court to permit introduction under MRE 404(b) of evidence indicating that,
on the night of the events at issue, there existed a valid warrant for defendant’s arrest. To
establish that defendant frequently drove his mother’s car, the prosecution sought to admit police
reports from defendant’s 2006 and 2007 convictions for fleeing and eluding showing that, when
police stopped defendant, he was driving his mother’s car. In answer to the prosecution’s
motion, defendant observed that only one of the reports indicated that he was driving his
mother’s car, and argued that one incident does not establish a pattern of frequent use. In
addition, he argued that both convictions were too remote to be relevant to a determination of
whether he had “recently fled and eluded the police[,]” and that their probative value was
significantly outweighed by their prejudice arising from their use as propensity evidence.
Accordingly, defendant asked the court to suppress the introduction at trial of his prior fleeing
and eluding convictions.

        On November 9, 2015, defendant filed a motion in limine arguing in part that defendant
would be irreparably prejudiced by evidence that defendant had “a valid warrant for a parole
violation out of Lansing tether[,]” that “[t]he prior charge listed on Defendant’s warrant was
fleeing and eluding[,]” and that defendant “was on parole at the time of this incident.”
Accordingly, defendant asked the court to order the prosecution and any prosecution witnesses
not to introduce evidence relative to defendant’s parole violation, the warrant for his arrest, and
the charge listed on the warrant.

         The trial court held a hearing on the motions on November 18, 2015. The trial court
initially rendered its decision on the record, granting defendant’s motion in part and denying it in
part. Specifically, as it relates to this appeal, the trial court allowed the prosecutor to introduce
evidence that defendant had a warrant for his arrest, but prohibited the prosecutor from
introducing evidence regarding the type of warrant or the underlying charge listed. Additionally,
the trial court ruled that the prosecution could not introduce police reports of incidents involving
defendant’s prior use of his mother’s car because of their remoteness in time from the incident at
issue. The trial court subsequently entered corresponding written orders.1

        At the conclusion of the hearing, the prosecutor placed on the record his current plea
offer to reduce the charge from second- to third-degree fleeing and eluding, and to agree to allow
defendant to serve his sentence in the county jail. The prosecutor also noted that the trial court
had extended a Cobbs2 agreement to defendant, offering to delay defendant’s sentence so that
defendant’s parole violation could be “handled.” The trial court would then conduct sentencing
and allow the parties to argue everything from credit for time served to the maximum one year in
county trial. According to the prosecutor, defendant had previously indicated that he would not
accept the offer. The trial court asked defendant to confirm that he had formally rejected these


1
 The trial court issued two orders. The first order disposed of defendant’s motion in limine,
while the second prohibited the prosecution from entering into evidence at trial police reports of
defendant’s prior fleeing and eluding convictions. The court entered the latter order on
December 4, 2015, the day of the final settlement conference.
2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


                                                -2-
offers. Before defendant could answer, defense counsel stated, “[j]ust a minute, your Honor. He
– he doesn’t understand a 404(b) is coming in.” The trial court gave defense counsel a moment
to confer with defendant, and afterwards, counsel said, “My client understands your ruling now,
and he does want a trial. He does not want to take advantage of the offer.”

       The matter proceeded to trial on December 8, 2015, with the parties stipulating that
defendant had a valid warrant at the time of the alleged offense, a prior conviction for second-
degree feeling and eluding, and two prior convictions for third-degree fleeing and eluding. The
jury found defendant guilty of all charges, and the trial court sentenced him as noted above on
January 4, 2016.
       On March 30, 2016, defendant moved through his court-appointed appellate attorney for
a new trial in the trial court on the basis that he rejected the November 18, 2015 plea bargain
because his trial counsel mistakenly led him to believe that if he went to trial, the court would
suppress his prior fleeing and eluding convictions.

        At a June 16, 2016 hearing on his motion, defendant testified that his trial counsel was
confused about the law. He said he asked his attorney if the court would allow the prosecution to
introduce his prior convictions for fleeing and eluding at trial, and she told him that she did not
know. He testified that she told him at the November 18, 2015 hearing that his prior convictions
were not coming in. It was because of this information, defendant asserted, that he rejected the
November 18, 2015 plea offer. Defendant further stated that he did not learn his convictions
were coming in until the December 4, 2015 settlement conference, and that he did not take a plea
offer at that time because he did not want to “give up” his right to appeal his rejection of the
November 18, 2015 offer. Defendant insisted that he did not stress his innocence or tell trial
counsel he would not take a plea offer, and stated that counsel’s testimony that he wanted her “to
go back and get plea deals” belies her assertion that he was not interested in an offer. In fact,
defendant testified, he told his attorney “from day one” that he would accept an offer that
allowed him to serve his sentence in the county jail.

        Contrariwise, defendant’s trial counsel testified that she understood that the elements of
second-degree fleeing and eluding required proof beyond a reasonable doubt of prior convictions
for fleeing and eluding, and that she discussed that requirement with her client more than once.
She acknowledged that she filed a motion in limine and answered affirmatively when asked if
she filed a brief with the motion in which she asked the court to suppress defendant’s prior
convictions.3 She further testified that she filed the motion knowing that the trial court would
deny her request and she told defendant they would lose the motion. Nevertheless, experience



3
  To clarify, and notwithstanding testimony to the contrary, the brief in which defendant argued
for suppression of his prior fleeing-and-eluding convictions was attached to his answer to the
prosecution’s motion in limine to admit certain evidence under MRE 404(b), not to defendant’s
motion in limine. That defendant labelled the brief “in support of the motion” may have
prompted some confusion. However, trial counsel filed the brief with defendant’s answer four
days after filing the motion, and even a cursory review of the contents of the brief reveals that it
is unrelated to defendant’s motion, but correlates to the prosecution’s MRE 404(b) request.


                                                -3-
had taught her that filing even a frivolous motion could spur a better offer from certain
prosecutors, and she believed that her motion had spurred the offer defendant now claims he
would have accepted. She said she believed that defendant became confused at the November
18, 2015 hearing, but she did not realize he was confused until the December 4, 2015 settlement
conference, at which point it became evident that defendant thought the trial court had excluded
the fact that he had prior convictions for fleeing and eluding. Counsel testified that she clearly
understood the trial court to have excluded specific details of defendant’s convictions only.

         Counsel said that defendant wanted her to “get him offers,” opining that it made him
confident that he was going to win his case, even though she told him he had only a 50/50 chance
at trial. Defendant’s trial counsel noted that the prosecution had made offers to defendant five
separate times, with the one placed on the record at the November 18, 2015 hearing being the
best, but defendant had rejected every offer on the grounds that he was innocent and would not
plead guilty to something that he did not do. He said he wanted to be in a position to fight his
parole violation, and thought that pleading or being found guilty of the charge at issue would
result in a separate parole violation and severe sanctions.

        The prosecution argued at the hearing that it was clear from the transcript of the
November 18, 2015 hearing that defendant had rejected the offer placed on the record prior to
the hearing, i.e., before any alleged confusion had arisen. The prosecution further noted that the
record completely belied defendant’s representations that he would have accepted a plea offer,
even after defendant clearly understood that the prosecution would admit evidence at trial of his
prior convictions for fleeing and eluding. The prosecution observed that it was “nonsensical” to
think that a defense attorney with a decade of experience would not realize that a degreed offense
required evidence of prior such offenses.

        After taking the matter under advisement, the trial court entered an order on June 30,
2016, finding that the conduct of defendant’s trial attorney did not fall below an objective level
of reasonableness and that, even if it had, the court was not convinced that there was a
reasonable probability that the outcome of the proceedings would have been different. The court
noted that defendant remained adamant about his innocence throughout the proceedings, that he
never expressed his confusion to the court prior to trial, and that he did not request a re-offering
of the plea deal after he understood that evidence of his convictions would come in at trial. It
was not until a jury convicted him of all charges that he claimed continued confusion about his
prior convictions being admitted at trial. Concluding that defendant could not establish deficient
performance or prejudice, the trial denied his motion for a new trial.

                                         II. ANALYSIS

       Defendant argues that he received ineffective assistance of trial counsel during the plea
bargaining process. Specifically, he contends that he would have accepted the prosecution’s plea
offer of November 18, 2015, if he had known that his prior fleeing and eluding convictions
would be admitted at trial.

       “Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
“The trial court’s factual findings are reviewed for clear error, while its constitutional

                                                -4-
determinations are reviewed de novo.” People v Cline, 276 Mich App 634, 637; 741 NW2d 563
(2007). “Clear error exists if the reviewing court is left with the definite and firm conviction that
the trial court made a mistake.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676
(2011).

        To prevail on a claim of ineffective assistance of counsel, a defendant must establish that
“(1) the performance of his counsel was below an objective standard of reasonableness under
prevailing professional norms and (2) a reasonable probability exists that, in the absence of
counsel’s unprofessional errors, the outcome of the proceedings would have been different.”
People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000), citing
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984). This two-
pronged test also applies to claims of ineffective assistance of counsel during the plea bargaining
process. Lafler v Cooper, 566 US 156, 162-163; 132 S Ct 1376; 182 L Ed 2d 398 (2012)
(quotation marks and citation omitted). However, where a defendant alleges ineffective
assistance relative to the rejection or acceptance of a plea, establishing the prejudice prong of the
Strickland test requires the defendant to demonstrate that,

       but for the ineffective assistance of counsel there is a reasonable
       probability . . . that the defendant would have accepted the plea and the
       prosecution would not have withdrawn it in light of intervening circumstances[],
       that the court would have accepted its terms, and 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. [Id. at 164.]

        Accordingly, for the instant defendant to succeed in his claim, he must initially establish
that his trial counsel’s performance was “below an objective standard of reasonableness under
prevailing professional norms,” Sabin, 242 Mich at 659, and that, but for this deficiency, he
would have accepted the November 18, 2015 plea deal, Lafler, 566 US at 164. The proper
remedy for ineffective assistance at the plea bargaining stage is for the prosecution to re-offer the
plea agreement, and, if defendant accepts, the trial court could exercise its discretion regarding
whether to resentence. Id. at 171. We agree with the trial court that defendant has not
established either prong.

         With regard to the performance prong, defense counsel testified that she was not
confused about the law. She knew defendant’s prior convictions for fleeing and eluding would
be admitted at trial as elements of the charged offense and that the trial court would deny her
request to exclude the prior convictions, but she asked anyway in an effort to obtain a favorable
offer for defendant. The trial court found counsel’s testimony credible, acknowledging such
filings to be a common practice defense attorneys use to bring about more favorable plea deals,
and speculating that it succeeded in this case by eliciting the deal that defendant now claims he
would have taken, but for counsel’s alleged ineffective assistance. Additionally, defense counsel
testified that she was unaware that defendant was confused regarding the admissibility of his
prior fleeing and eluding convictions at the motion hearing, but became aware of defendant’s
confusion at the settlement conference and clarified to him that those prior convictions would be
admitted at his trial. Defendant’s testimony confirms that his confusion was resolved at the
settlement conference, four days before trial. In light of this record, and giving due regard to the
trial court’s opportunity to assess the credibility of the witnesses who appeared before it, MCR

                                                -5-
2.613(C), we cannot say that the trial court clearly erred by finding that trial counsel’s
performance did not fall “below an objective standard of reasonableness under prevailing
professional norm.” Sabin (On Second Remand), 242 Mich App at 659.

         With regard to the prejudice prong, we agree with the trial court that the record does not
support defendant’s contention that, but for trial counsel’s allegedly deficient performance, there
is a reasonable probability that defendant would have accepted the plea deal from November 18,
2015. Lafler, 566 US at 164. The record amply supports that defendant maintained his
innocence and did not evince an intent to accept any plea offer. In an October 23, 2015 letter to
defense counsel, defendant stated, among other things, that his “mind is already made up about
going to trial,” that he was “prepared for trial[,]” and that he did not see how “anyone can put
[him] in that driver’s seat.” In addition, as the trial court noted, there is no evidence that
defendant ever communicated any confusion to the court, or that, even after he knew his prior
convictions would come in at trial, he sought the re-offer of any plea deal. In fact, the
“Arraignment Report and Scheduling Order” notes the results of the December 4, 2015
settlement conference at which defendant’s confusion was resolved as “still on for trial.”
Further, at the sentencing hearing, defense counsel explained as follows why defendant rejected
all of the prosecution’s plea offers:

       This has definitely been a challenging case in that my client has always
       maintained his innocence. We had a motion hearing; and at that hearing, he
       received a really good offer—Killebrew[4] and Cobbs—and he turned it down
       because he believed so strongly in his innocence.

       And it was tempting to take those offers. They were really good offers. It was
       really tempting. But my client has always maintained he was not driving the car;
       that it was not him. And so, despite those being really tempting offers, he said no
       to them.

       Finally, in a post-conviction letter to trial counsel, defendant thanked her for her efforts
and said he could not “complain about the jury verdict, it’s done and over with[,]” but did not
mention any plea offers.

       In light of this evidence and, again, giving due regard to the trial court’s credibility
assessments, MCR 2.613(C), we conclude that the trial court’s finding that there was not a
reasonable probability that defendant would have accepted the plea offer was not clearly
erroneous. Cline, 276 Mich App at 637; Lafler, 566 US at 164. Therefore, we conclude that
defendant has not met his heavy burden to prove that his trial counsel performed ineffectively.
People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009) (“Effective assistance of counsel is
presumed and defendant bears a heavy burden of proving otherwise.”). Accordingly, we


4
  People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982) (holding that “sentencing concerns
are appropriate subjects for plea bargaining[,]” but that the judge’s role “is limited to
consideration of the bargain between the defendant and the prosecutor”), aff’d 416 Mich 189
(1982).


                                                -6-
conclude that the trial court did not err in ruling that defendant received effective of assistance of
counsel.

       Affirmed.



                                                              /s/ Jane M. Beckering
                                                              /s/ Jane E. Markey
                                                              /s/ Douglas B. Shapiro




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