                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 20, 2018
              Plaintiff-Appellee,

v                                                                  No. 337576
                                                                   Oakland Circuit Court
ROBERT WAYNE PRUESNER,                                             LC No. 2016-260209-FC

              Defendant-Appellant.


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

PER CURIAM.

        Following a jury trial, defendant was convicted of armed robbery, MCL 750.529, and
first-degree home invasion, MCL 750.110a(2). Defendant was sentenced, as a fourth habitual
offender, MCL 769.12, to 25 to 50 years’ imprisonment for armed robbery, and 15 to 40 years’
imprisonment for first-degree home invasion, to be served concurrently. On appeal, defendant
argues that he was denied effective assistance of counsel primarily because defense counsel1
failed to oppose the prosecution’s notice of intent to admit evidence of defendant’s prior
convictions if he testified. For the reasons stated below, we remand for a Ginther2 hearing.

        According to the record, shortly after Chaz Green’s girlfriend left for the night, a man,
wearing all black, with a “beanie” on his head and a bandana around his mouth, forcibly entered
Green’s house through the back door. Green ran to the bedroom and the man followed him
there. The man, while holding a handgun, told Green to give him “all the cash” or he would kill
Green. Green gave him a bag that contained about $700. The man demanded the rest of the
cash, so Green went into the living room, where he retrieved approximately $1,000 he had
hidden there. The man demanded more money and pulled out a second gun. Green testified that
when he did so, the bandana slipped down and Green had “a better view of his face for just a
split second.” The man threatened to kill Green if he called the police. Green waited a day
before calling the police.

       Green testified that he believed that defendant was the person who robbed him. He
explained that he had met defendant at a bar through his cousin, Bradley Ormsby, about a month

1
  Defendant was represented by two attorneys. We will refer to them collectively as defense
counsel.
2
  People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

                                               -1-
before the crime. Green said that defendant noticed that he carried a lot of cash, and Green
explained to defendant that he did not “believe in banks.” Green said that he may have told
defendant about a recent lawsuit settlement that he received. Green testified that only three
people knew where he lived: his girlfriend, Ormsby, and Ormsby’s friend “Reese.” Green told
law enforcement that he believed Ormsby set up the robbery. Ormsby testified and denied any
involvement in the crime and denied that he told defendant where Green lived. Defendant did
not testify.

        Defendant’s claim of ineffective assistance of counsel was properly raised in a motion to
remand, which we denied without prejudice. “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). “A judge first must find the facts, and then must decide
whether those facts constitute a violation of the defendant’s constitutional right to effective
assistance of counsel.” Id. Factual findings are reviewed for clear error, and constitutional law
questions are reviewed de novo. Id.

        “To establish a claim of ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the
defense.” People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611 (2003). A defense
counsel’s performance is deficient if “it fell below an objective standard of reasonableness under
prevailing professional norms.” Id. To show prejudice, “the defendant must show the existence
of a reasonable probability that, but for counsel’s error, the result of the proceeding would have
been different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

        Defendant argues that defense counsel was ineffective for failing to move to exclude
evidence of his past convictions after the prosecutor served a notice of intent to introduce
evidence of those crimes for impeachment purposes should defendant testify. In an affidavit
filed with his motion to remand, defendant avers that his counsel advised him that he should not
testify because of his prior convictions. He also averred that on the night of the crime, he spent
the evening with his mother and her boyfriend before retiring to his bedroom.3 Because
defendant’s claim of ineffective assistance of counsel requires factual development, we remand
for an evidentiary hearing. See MCR 7.211(C)(1)(ii).

       Under MRE 609, the prosecutor intended to introduce evidence of defendant’s three prior
convictions: a 2009 breaking and entering with intent to commit larceny conviction; a 2008
second-degree home invasion conviction;4 and a 2008 receiving and concealing stolen property
conviction. MRE 609 provides in part:



3
  Although a party may not expand the record on appeal, People v Powell, 235 Mich App 557,
561 n 4; 599 NW2d 499 (1999), defendant was required to submit an “affidavit or offer of proof
regarding the facts to be established at a hearing” in support of his motion to remand. MCR
7.211(C)(1). It is appropriate for us to consider his affidavit in deciding whether to remand for a
Ginther hearing. See People v Traver, 316 Mich App 588, 602; 894 NW2d 89 (2016), rev’d in
part on other grounds ___ Mich ___ (2018).
4
  It is unclear whether theft was involved in this offense.

                                                -2-
       (a) General Rule. For the purpose of attacking the credibility of a witness,
       evidence that the witness has been convicted of a crime shall not be admitted
       unless the evidence has been elicited from the witness or established by public
       record during cross-examination, and

       (1) the crime contained an element of dishonesty or false statement, or

       (2) the crime contained an element of theft, and

              (A) the crime was punishable by imprisonment in excess of one year or
       death under the law under which the witness was convicted, and

              (B) the court determines that the evidence has significant probative value
       on the issue of credibility and, if the witness is the defendant in a criminal trial,
       the court further determines that the probative value of the evidence outweighs its
       prejudicial effect.

       (b) Determining Probative Value and Prejudicial Effect. For purposes of the
       probative value determination required by subrule (a)(2)(B), the court shall
       consider only the age of the conviction and the degree to which a conviction of
       the crime is indicative of veracity. If a determination of prejudicial effect is
       required, the court shall consider only the conviction’s similarity to the charged
       offense and the possible effects on the decisional process if admitting the
       evidence causes the defendant to elect not to testify. The court must articulate, on
       the record, the analysis of each factor.

        Defendant argues that, considering the date of his prior offenses and their limited
relevance to veracity, the probative value of his prior convictions would have been outweighed
by their prejudicial effect under a MRE 609(b) analysis. The similarity of the prior charges to
the current offenses also weighs against their admission. The prosecutor argues that receiving
and concealing stolen property should be considered a crime containing an element of
dishonesty, and therefore automatically admissible under MRE 609(a)(1). However, the
prosecutor concedes that this is an open question. See People v Ferrier, 463 Mich 1007, 1008;
624 NW2d 736 (2001) (MARKMAN, J., dissenting). In any event, we cannot discern a
reasonable trial strategy for defense counsel’s failure to bring a motion to exclude evidence of
defendant’s prior convictions.5 Defendant would have been no worse off had the trial court

5
  The prosecutor argues that defense counsel’s decision not to challenge the proposed
introduction of defendant’s prior convictions was a strategic choice because counsel relied on
MRE 609 to impeach Green. However, the prosecutor overstates defense counsel’s actions in
this case. The prosecutor asked Green during direct examination if he had been convicted of a
crime involving theft or dishonesty in the last 10 years, to which Green replied, “When I was 17,
I—scrap metal.” Defense counsel attempted to follow up on Green’s prior crime during cross-
examination, but when the prosecutor made an “asked and answered” objection, counsel
withdrew his question. We doubt that this objection would have been sustained because Green
did not even identify the crime that he committed. Even if the objection was sustained, defense
counsel had a right to develop for the jury why Green’s prior crime of theft or dishonesty was

                                                -3-
denied the motion, but if the motion was granted (in whole or in part), then damaging
impeachment evidence would have been excluded in the event that defendant chose to testify. 6
Caselaw supports the conclusion that this case should be remanded for a Ginther hearing. See
People v Perkins, 141 Mich App 186, 191; 366 NW2d 94 (1985); People v Moss, 113 Mich App
626, 629; 318 NW2d 501 (1982). Defense counsel’s understanding of MRE 609 and any advice
given to defendant can be explored at the hearing. See Blackburn v Foltz, 828 F2d 1177, 1182
(CA 6, 1987) (“[Defense counsel’s] recitation of the law regarding admissibility of prior
convictions was clearly wrong . . . and cannot be said to constitute reasonable strategy.”). The
trial court can rule on whether it would have admitted the impeachment evidence, which will
speak to whether defendant was prejudiced from the alleged error.

        The prosecutor suggests that defendant cannot show prejudice because there was
substantial evidence presented against him at trial. Based on the record in this case, we are not
prepared to say that there is no reasonable probability that defendant’s testimony would have
affected the outcome at trial. The only direct evidence against defendant was Green’s
identification of him as the robber and the complainant stated that the perpetrator’s face was
covered with a bandana, which slipped only momentarily during the crime. And at one point
during deliberations the jury reported a deadlock. Considering that this was a close case and the
limited record, we decline to rule that defendant was not prejudiced by the alleged error. The
trial court shall make that determination after fuller factual development on remand.

       Remanded for proceedings consistent with this opinion. We retain jurisdiction.

                                                            /s/ Jonathan Tukel
                                                            /s/ Jane M. Beckering
                                                            /s/ Douglas B. Shapiro




relevant to his current testimony. For those reasons, based on the present record, we decline to
characterize defense counsel’s failure to argue against the prosecutor’s intent to introduce
evidence of defendant’s prior convictions as a reasonable trial strategy. But the Ginther hearing
may shed light on whether defense counsel was acting strategically.
6
  We note that defendant’s affidavit does not state whether he would have testified but for
defense counsel’s advice and failure to oppose the MRE 609 evidence. If the trial court finds
that there is not a reasonable probability that defendant would have testified even if a favorable
MRE 609 ruling was obtained, then his claim fails for a lack of prejudice. Whether defendant
indicated a desire to testify to his counsel is also relevant. See People v Marshall, 298 Mich App
607, 615-616; 830 NW2d 414 (2012), vacated in part on other grounds 493 Mich 1020 (2013).

                                               -4-
                              Court of Appeals, State of Michigan

                                               ORDER
                                                                             Jonathan Tukel
People of MI v Robert Wayne Pruesner                                             Presiding Judge

Docket No.     337576                                                        Jane M. Beckering

LC No.         2016-260209-FC                                                Douglas B. Shapiro
                                                                                 Judges


               The Court orders that the motion to remand is GRANTED. This case is REMANDED to
the trial court for an evidentiary hearing and decision whether defendant was denied the effective
assistance of counsel. People v Ginther, 390 Mich 436 (1993). Proceedings on remand are limited to
the claim that defense counsel was ineffective because he failed to object to the use of defendant’s prior
convictions under MRE 609. This Court retains jurisdiction.

                Defendant shall initiate the proceedings on remand within 21 days of the date of this
order. The time for further proceedings in this appeal shall begin to run on the issuance of an order in
the trial court that concludes the remand proceedings. However, if defendant fails to file a motion to
initiate the proceedings within the time provided, the time for further proceedings in this appeal shall
begin to run at the conclusion of that 21-day period. Defendant shall file with this Court a copy of any
motion and supporting brief filed in the trial court, and defendant shall file a copy of any order entered
within 14 days after entry.

               The trial court shall hear and decide the matter within 56 days of the date of this order
and shall make an appropriate determination on the record. The transcript of all proceedings on remand
shall be prepared and filed within 21 days of the completion of the proceedings.



                                                            /s/ Jonathan Tukel




                                September 20, 2018
