People of Michigan v. Robert Dorian Sango ( 2020 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 20, 2020
Plaintiff-Appellee,
v No. 348123
Calhoun Circuit Court
ROBERT DORIAN SANGO, LC No. 2017-002351-FH
Defendant-Appellant.
Before: GADOLA, P.J., and GLEICHER and STEPHENS, JJ.
PER CURIAM.
Defendant appeals as of right his convictions following a jury trial of being a 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. The trial court sentenced defendant
as a fourth-offense habitual offender, MCL 769.12, to 48 months to life imprisonment for felon-
in-possession, and 2 years’ imprisonment for felony-firearm. Defendant appeals, arguing that the
trial court erred when it refused his request for appointment of new counsel, or in the alternative
by not allowing him to represent himself; that there was insufficient evidence to sustain his
convictions; and that his sentence was unreasonable and disproportionate. For the reasons set forth
in this opinion, we vacate defendant’s convictions and remand this matter for a new trial.
I. BACKGROUND
This case arises out of defendant, a prior convicted felon, having been seen with a gun, and
having sent text messages and photo messages from his phone to his ex-girlfriend that showed he
had multiple firearms. The ex-girlfriend showed the messages to law enforcement. Detectives
obtained a search warrant for defendant’s home and located a green gun box that appeared to be
the same green gun box from one of the text message photos as well as what appeared to be a black
suppressor on top of a pile of clothing that was similar to the one in the photo messages. Under
the stairs, detectives also found a revolver and two handgun magazines belonging to a
semiautomatic gun, one of which was similar to the magazine in the photo messages.
At trial, during his counsel’s questioning of the ex-girlfriend, defendant indicated that he
needed to put something on the record. The court excused the jury. Defendant stated that his
-1-
counsel was not asking questions of the ex-girlfriend concerning the fabrication of false voicemail
messages. Defense counsel agreed, stating that the questions were not for this witness and that the
information defendant was refuting could be established by one of the detectives. Counsel
believed however that defendant had the right to represent himself, if he chose to do so. Defendant
requested a new attorney but was denied by the court for the reasons that defendant’s request was
untimely and defense counsel had done nothing that would indicate to the court the need for a new
attorney. Defendant then requested to proceed in propria persona; that request was also denied for
the reason that it was untimely.
Defendant moved the trial court for substitute counsel a second time at sentencing; the trial
court granted that motion. The court denied defendant’s motion for a new trial based on ineffective
assistance of trial counsel.
II. SUBSTITUTION OF COUNSEL AND SELF-REPRESENTATION
Defendant first argues that the trial court abused its discretion when it denied his midtrial
request for appointment of new counsel, or in the alternative by not allowing him to represent
himself. We agree.
A. SELF-REPRESENTATION
“The right of self-representation under Michigan Law is secured by both Constitution and
statute.” People v Anderson, 398 Mich. 361, 366; 247 NW2d 857 (1976). The right to self-
representation in a criminal proceeding is guaranteed implicitly by the United States Constitution,
US Const, Am VI, and it is explicitly guaranteed by the Michigan constitution, Const 1963, art 1,
§ 13, and by statute, MCL 763.1. Id. However, the right is not absolute. Id. For a defendant’s
request to proceed in propria persona to be granted, three requirements must be met: (1) the request
must be unequivocal; (2) once the defendant has unequivocally declared his desire, the trial court
must determine whether the defendant is asserting the right knowingly, intelligently, and
voluntarily; and (3) the trial court must determine that, while proceeding in propria persona,
defendant will not disrupt, unduly inconvenience, or burden the court and the administration of its
business. 398 Mich. at 367-368. A defendant “ ‘has a constitutional right to proceed without
counsel when he voluntarily and intelligently elects to do so.’ ” Martinez v Court of Appeal of
California, Fourth Appellate Dist, 528 U.S. 152, 154; 120 S. Ct. 684; 145 L. Ed. 2d 597 (2000),
quoting Faretta v California, 422 U.S. 806, 807; 95 S. Ct. 2525; 45 L. Ed. 2d 562 (1975). “Faretta
concluded that ‘[u]nless the accused has acquiesced in [representation through counsel], the
defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense,
it is not his defense.’ ” McKaskle v Wiggins, 465 U.S. 168, 173-174; 104 S. Ct. 944; 79 L. Ed. 2d 122
(1984) quoting Faretta, 422 U.S. at 821. “Since Faretta, the consensus that has emerged from state
and federal appellate courts is that a request for self-representation can only be denied for three
reasons: (1) if it is untimely, ordinarily if made after trial has begun, (2) if there is sufficient
certainty of serious obstructionist misconduct, or (3) if no valid waiver can be accomplished.”
People v Richards, 315 Mich. App. 564, 575; 891 NW2d 911 (2016), rev'd in part on other grounds,
app den in part 501 Mich. 921; 903 NW2d 555 (2017).
In this case, defendant made an unequivocal request to proceed in propria persona after
voir dire had been completed, a jury selected, and in the middle of his counsel’s examination of
-2-
the prosecution’s first witness. The court denied defendant’s request and stated, “You may not
represent yourself. That motion also is not timely made. If you wanted to represent yourself in
this case you had months to make that request.” The court made no determination as to whether
the defendant was asserting his right to self-representation knowingly, intelligently, and
voluntarily; nor whether defendant proceeding in propria persona would disrupt, unduly
inconvenience, or burden the court and the administration of its business.
From this record we can only conclude that the court’s decision was based on timing. The
court implied that the defendant was dilatory in making the request. However, as defendant
explained at trial, the circumstances that gave rise to his request to represent himself did not arise
until his counsel refused to ask the ex-girlfriend questions which defendant thought he and his
counsel agreed would be asked. Defendant explained the significance of the evidence sought to
be elicited to his defense and while the court agreed in part, it also stated that it would not tell
defense counsel “how to run his case.” The court explicitly determined that the request was itself
untimely, apparently referring to the fact that trial had already commenced. In Richards, this
Court found that a court had no duty to follow the Anderson procedure where a request for self-
representation was not timely. Richards, 315 Mich. App. 564. However, in Richards the Court
acknowledged that there was no “bright-line” rule as to when a request was untimely.
“The people would have us announce a guideline which would preclude the
assertion of the right to proceed without counsel if it is not made before the trial
begins. We cannot accede to this request. Although the potential for delay and
inconvenience to the court may be greater if the request is made during trial, that
will not invariably be the case. [People v. Anderson, 398 Mich. 361, 368, 247
N.W.2d 857 (1976).]” Richards, 315 Mich. App. at 579.
Thus, the commencement of trial alone cannot be the basis of an untimeliness determination.
Unlike the defendant in Anderson, this record does not reflect a defendant who had numerous
substitutions of counsel, rejected offers to represent himself and myriad pre-trial motions. In this
case, the defendant’s request for self-representation did not include a request for an adjournment.
The trial court did not cite any previous delays, indicate how the timing placed an additional burden
on the prosecution, witnesses or the jury, nor note if any delay in proceedings would have been
occasioned by self-representation. Accepting the fact that the Anderson inquiry is not required if
a request is untimely, the court still has the responsibility of articulating why any particular request
is untimely. This record is devoid of such articulation.
Accordingly, we conclude that the trial court committed reversible error when it neither
engaged in the Anderson process nor made any finding of fact on the factors outlined in Anderson.
See Anderson, 398 Mich. at 368.
B. SUBSTITUTION OF COUNSEL
“A trial court’s decision regarding substitution of counsel will not be disturbed absent an
abuse of discretion. A trial court abuses its discretion when its decision falls outside the range of
reasonable and principled outcomes.” People v Strickland, 293 Mich. App. 393, 397; 810 NW2d
660, 662 (2011). Similarly, this Court “review[s] a trial court’s decision on a defendant’s request
-3-
to represent himself for an abuse of discretion.” People v Ahumada, 222 Mich. App. 612, 617; 564
NW2d 188 (1997)
Defendant contends that the trial court abused its discretion by not granting his request for
a new attorney. “When a defendant asserts that the defendant’s assigned attorney is not adequate
or diligent, or is disinterested, the trial court should hear the defendant’s claim and, if there is a
factual dispute, take testimony and state its findings and conclusion on the record.” Strickland,
293 Mich. App. at 397. In Strickland, this Court held:
An indigent defendant is guaranteed the right to counsel; however, he is not entitled
to have the attorney of his choice appointed simply by requesting that the attorney
originally appointed be replaced. Appointment of a substitute counsel is warranted
only upon a showing of good cause and where substitution will not unreasonably
disrupt the judicial process. Good cause exists where a legitimate difference of
opinion develops between a defendant and his appointed counsel with regard to a
fundamental trial tactic. [Id.]
What constitutes good cause for substitution of counsel depends on the facts and circumstances of
each case. People v Buie, 298 Mich. App. 50, 66-70; 825 NW2d 361 (2012). “[A] defendant’s
general unhappiness with counsel’s representation is insufficient.” 293 Mich. App. at 398. In Buie,
this Court said that although defendant and defense counsel did not have a completely amicable
relationship, the trial court did not abuse its discretion when it did not appoint substitute counsel
because the record did not show that defense counsel was in fact inattentive to defendant’s
responsibilities or was disinterested. See 298 Mich. App. at 66-70. The Buie Court referred to
People v Meyers, 124 Mich. App. 148; 335 NW2d 189 (1983), in which this Court denied the
defendant’s request for substitute trial counsel, holding that the defendant “did not assert that his
attorney was inadequate, lacking in diligence, or disinterested in his case”—regardless of the
defendant’s communication issues with his counsel. Buie, 298 Mich. App. at 67-68.
The court’s denial of the substitution of counsel also lacked specific fact finding. However,
the court made inquiry and engaged in sufficient colloquy on this issue to afford this court a record
upon which to make a review. In this case, defendant asked the trial court to appoint him new
counsel, during trial and while defense counsel was in the middle of examining the prosecution’s
first witness.1 Defendant argued that his attorney had not listened to him regarding certain
questions to ask. Defendant also later asserted that his attorney could not hear out of his left ear.
The court denied defendant’s request and stated that it believed defense counsel was listening to
defendant, but that defendant was asking him to do things that counsel simply could not do.
Furthermore, the court stated that defense counsel had “done nothing in this particular case that
would indicate a need for a new attorney” and that he had been appropriate. Implicitly, the court
did not find “good cause” for the substitution.
Although defendant and defense counsel did not have a completely amicable relationship,
the trial court did not abuse its discretion when it did not appoint substitute counsel. See Buie, 298
Mich. App. at 66-70. The record does not provide that defense counsel was in fact inattentive to
1
Defendant had been assigned appointed counsel to represent him in the case.
-4-
defendant’s responsibilities or disinterested, nor does it show that defense counsel was inadequate,
lacking in diligence, or disinterested in his case. See id. In fact, defendant pointed out that defense
counsel was not a bad attorney. Additionally, the court made mention of how defendant had
defense counsel previously for a different case and there were no issues between the two, and
defendant was acquitted of that charged conduct.
Accordingly, this Court concludes that defendant has not met the requisite good cause
threshold necessary for substitution of counsel. See Strickland, 293 Mich. App. at 397. Therefore,
the trial court did not abuse its discretion when it made the decision to deny defendant’s request
because it did not fall outside the range of reasonable and principled outcomes. See id.; see Buie,
298 Mich. App. 67-68.
III. SUFFICIENCY OF EVIDENCE
Next, defendant argues that there was insufficient evidence to support that he was actually
in possession of a firearm. We disagree.
A challenge to the sufficiency of the evidence is reviewed de novo on appeal. People v
Harverson, 291 Mich. App. 171, 175; 804 NW2d 757 (2010).
In reviewing the sufficiency of the evidence, this Court must determine whether, evaluating
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the elements of the offense beyond a reasonable doubt. People v Wolfe, 440 Mich. 508, 513-
514; 489 NW2d 748 (1992). “Circumstantial evidence and reasonable inferences that arise from
such evidence can constitute satisfactory proof of the elements of the crime.” People v Williams,
268 Mich. App. 416, 419; 707 NW2d 624 (2005). All conflicts in the evidence must be resolved in
favor of the prosecution, and the Court shall not interfere with the jury’s determinations regarding
the weight of the evidence and the credibility of the witnesses. Wolfe, 440 Mich. at 515. “Intent
may be inferred from all the facts and circumstances.” People v Cameron, 291 Mich. App. 599,
615; 806 NW2d 371 (2011).
In this case, defendant was convicted of felon-in-possession and felony firearm. Felon-in-
possession is a statutory offense that is set forth by MCL 750.224f. The two essential elements of
felon-in-possession are: (1) the defendant is a felon who possessed a firearm (2) before his right
to do so was formally restored under MCL 28.424. See MCL 750.224f; People v Perkins, 473
Mich. 626; 703 NW2d 448 (2005). Next, felony-firearm is a statutory offense that is set forth by
MCL 750.227b. “The elements of felony-firearm are that the defendant possessed a firearm during
the commission of, or the attempt to commit, a felony.” People v Avant, 235 Mich. App. 499, 505;
597 NW2d 864 (1999). “Felon-in-possession may constitute the underlying felony for felony-
firearm.” People v Dillard, 246 Mich. App. 163, 168; 631 NW2d 755 (2001).
In this case, rather than introducing the judgments of sentence from defendant’s prior
felony convictions, the parties stipulated that defendant had previously been convicted of a felony
that made him ineligible to possess a firearm on June 27, 2017, and June 28, 2017. The issue
disputed by defendant is whether he had actual possession of actual firearms. In Michigan,
possession may be actual or constructive. People v March, 499 Mich. 389, 415; 886 NW2d 396
(2016). “[A] person has constructive possession if there is proximity to the article together with
-5-
indicia of control. Put another way, a defendant has constructive possession of a firearm if the
location of the weapon is known and it is reasonably accessible to the defendant.” People v
Johnson, 293 Mich. App. 79, 83; 808 NW2d 815 (2011). “Possession can be proved by
circumstantial or direct evidence and is a factual question for the trier of fact.” Id.
Viewing the evidence in a light most favorable to the prosecution, a rational jury could find
that defendant had constructive possession of, at a minimum, the revolver that was found in the
basement of the home. See Wolfe, 440 Mich. at 513-514. After a detective had asked defendant
where in the basement were the guns located, defendant replied, “just go look and you’ll find
them.” When detectives went down into the basement they located a green gun box, what appeared
to be a black suppressor, a magazine for a handgun, and a revolver. Although detectives noted
that the revolver found did not appear to be the same color as the revolver pictured in the photo
messages that were sent to defendant’s ex-girlfriend, this revolver was still found in the basement
of the home where defendant was living and all of his possessions were located. The detectives
testified that defendant was the only person living in the basement of the home. Additionally,
when defendant was asked if there would be any guns in the house, defendant replied that “there
will be a gun in the bedroom. The upstairs bedroom.”
On the basis of defendant’s knowledge of guns in the home, his comment “just go look and
you’ll find them,” and detectives finding a revolver in the basement of the home where defendant
had been living, this Court concludes that defendant had constructive possession of, at a minimum,
the revolver. See Johnson, 293 Mich. App. at 83.
Similarly, because there was sufficient evidence to establish that defendant had
constructive possession of the gun to support his felony conviction for felon-in-possession, it
follows that sufficient evidence was provided to convict defendant of felony-firearm. See Id.; see
Dillard, 246 Mich. App. at 168.
Accordingly, in evaluating the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found that there was sufficient evidence to reasonably conclude
that defendant was a felon-in-possession of a firearm in violation of MCL 750.224f and, therefore,
in violation felony-firearm in violation of MCL 750.227b. Defendant also argues that his sentence
is not proportionate or reasonable to his offense and to his circumstances. Given our decision to
vacate defendant’s sentences and remand this matter for a new trial, we need not address
defendant’s sentencing issues.
Vacated and remanded for a new trial. We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Cynthia Diane Stephens
-6-