20231109_C362919_66_362919C.Opn.Pdf ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 9, 2023
Plaintiff-Appellant,
v No. 362919
Wayne Circuit Court
CHARLES WAYNE DAWSON, LC No. 09-004754-01-FC
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 362920
Wayne Circuit Court
CHARLES WAYNE DAWSON, LC No. 09-004756-01-FC
Defendant-Appellee.
Before: HOOD, P.J., and SHAPIRO and YATES, JJ.
HOOD, P.J. (concurring).
I agree with the analysis and conclusions in the majority opinion. I write separately because
this case highlights the insurmountable difficulty that postconviction movants, like Dawson, face
when their claims involve a combination of legal innocence and ineffective assistance of counsel.
I ultimately agree with the majority because Dawson did not present sufficient evidence to
establish that he did not possess a real firearm for the two 2009 robberies. But I question whether
it would even be possible for a litigant in this circumstance to present sufficient evidence to prove
a negative, as Dawson is required. (Put another way, I question how Dawson could prove that he
never possessed a real gun.) This is particularly concerning here where it does not appear the trial
court ever required the prosecution to present evidence of the affirmative: that the “weapon” or
“firearm” at issue was real. Not at trial. And not at the plea colloquy. This has resulted in the
unusual—and troubling—outcome of holding a criminal defendant to a higher burden of proof
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than the prosecution. The trial court that presided over Dawson’s pleas, sentencing, and
postconviction procedures seems to have recognized this inversion and granted relief by vacating
the felony-firearm and felon-in-possession convictions and sentences. Nonetheless, as the
majority correctly states our current postconviction procedures require a different outcome, so I
am bound to agree with the majority conclusion.
I. BACKGROUND
The majority opinion accurately describes the factual and procedural background of this
case. Generally, this appeal deals with (1) evidence presented prior to conviction establishing that
Dawson used a real firearm during two robberies in 2009 and (2) evidence presented
postconviction proving the negative: that he did not possess a real firearm.
Critically, during the pretrial phase of Dawson’s cases, there was little direct or high-
confidence circumstantial evidence that Dawson possessed a real firearm during the robberies. Of
the three robberies, the prosecution team never recovered a real firearm, but recovered two replica
firearms: a toy and a BB gun. After the 2008 Speedway robbery, the police recovered a toy silver
revolver from Dawson during a traffic stop. When the police arrested Dawson in his home 17 days
after the third and final robbery in this series, the police found what they described as a “BB,
PELLET OR GAS-POWERED GUN – BLACK/SILVER IN COLOR CO2 FACSIMILE
FIREARM.” Dawson pleaded guilty, so our universe of facts is largely limited to the substance
of his plea colloquies. During his plea colloquy in Case No. 08-010037-01-FC (the 2008 robbery),
before the 2009 arrest and recovery of the BB gun, Dawson specifically stated he used a “toy gun”
to commit the 2008 robbery. After failing to appear for sentencing on the 2008 robbery, Dawson
committed two armed robberies in 2009, one at a Radio Shack (Case No. 09-004754-01-FC), one
at a Game Stop (Case No. 09-004756-01-FC). Again, the only “firearm” recovered was a BB gun
recovered during his arrest nearly three weeks after the last robbery.
Dawson never explicitly admitted to possessing a real firearm. The court held a joint plea
hearing for the 2009 robberies. When establishing a factual basis for the Radio Shack robbery,
Dawson admitted to possessing a weapon. When asked if his prior conviction for a felony
(attempted carrying a concealed weapon) made him not “eligible to possess that weapon,” Dawson
confirmed he was ineligible, but there was never a question as to whether the weapon was a gun
let alone a real gun.1 For the factual basis for the Game Stop robbery, the prosecutor asked if
Dawson used a “gun” and showed it to take items from the store. Again, the prosecutor confirmed
that Dawson had a prior felony conviction meaning he did not have a right to possess a “firearm.”
But again, neither the lawyers nor the court inquired whether the “gun” or “firearm” was actually
a real firearm.
1
Dawson’s knowledge of his disability on ineligibility to possess a real firearm is not an element
of either felony-firearm or felon-in-possession. On the other hand, possession of a real firearm is
an element of both charges.
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A different lawyer represented Dawson at the sentencing hearing than who had represented
him at the plea hearings and other pretrial proceedings.2 In the presentence investigation report,
the report writer memorialized Dawson’s description of the offenses as follows:
“The defendant states th[e] following regarding his involvement in all of the above
offenses: I was trying to get a house. We were going through a loss of our parental
rights on my daughter. I started using cocaine and Ecstasy. I had a toy gun and I
robbed some places.
The statement is followed by a representation of an electronic signature “/s/Charles Wayne
Dawson.” The normal process for obtaining a defendant’s statement for a presentence
investigation report involves a probation agent interviewing the defendant outside of the court’s
presence, sometimes with counsel present, and sometimes without.
At the sentencing hearing, Dawson’s stand-in counsel attempted “clear up” what to him
appeared to be an obvious discrepancy between this statement and an acceptable factual basis at
the plea colloquy. Dawson’s counsel brought to the court’s attention that Dawson’s description of
the offense “indicated he had a toy gun and robbed some places.” Then there was the following
exchange:
Mr. Lankford: I discuss this because obviously he wouldn’t be able to plead
to felony[-]firearm on two cases. I think there was confusion perhaps on the part
of the writer [of the PSIR]. The ‘08 case at the Game Stop [sic] in Livonia was, in
fact, a look-alike, a toy gun. The Livonia police subsequently arrested him and it
was clear that they found marked money and there was a look-alike, a toy gun. And
in that case, he is not charged with felony[-]firearm for that reason.
However, as to the other two cases, the Game Stop and the Radio Shack, I
discussed it with him, at the time of the plea, I believe there was a statement made,
looking at the plea forms, that in summarizing would have said “I robbed a person,
I was armed at the time, that the instrument I was armed with was, in fact, a gun
and I have a prior felony, specifically a prior carrying [a] concealed weapon,
rendering me ineligible to have a firearm.[”]
I believe that that is a summary of what Mr. Dawson must have said at the
time of the plea. . . . In discussing it with Mr. Dawson, he wishes to clear up that
confusion and clarify that an[d] re-confirm [sic] what he said at the time of the plea.
Is that correct, Mr. Dawson?
Defendant Dawson: Yes.
2
Attorney Mark Procida appears to have represented Dawson throughout the majority of the
pretrial proceedings including the plea hearing for the 2019 robberies. Attorney David Lankford
represented Dawson at sentencing, standing in for Procida with Dawson’s consent.
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Although the majority describes this exchange at sentencing as defense counsel clarifying
the record and Dawson himself confirming “that he did use an actual firearm during the 2009
offenses, as opposed to the 2008 robbery,” I am not so sure. It is unclear what Dawson was saying
“yes” to. If he was saying “yes” that he was reconfirming what he said at the time of the plea,
then he did not admit or ratify the idea that he had a real gun. If he was saying “yes” to Attorney
Lankford’s second attempt at a more complete plea colloquy, then he was. The fact that stand-in
counsel stated that he possessed a toy gun at the Game Stop robbery in 2008, an apparent jumble
of the 2008 Speedway robbery and the 2009 Game Stop robbery only amplifies the ambiguity of
Dawson’s answer. I agree with the majority that Lankford understood the importance of using a
real gun, and I acknowledge that he seems to have assumed that any acceptable plea colloquy
necessarily would have clarified that the gun was real. But that assumption is not rooted in
Dawson’s statements at the plea colloquy as reflected in the transcripts.
I otherwise agree with the majority’s description of the background of this case including
the critical facts that Dawson did not call either Attorney Procida or Attorney Lankford at the
evidentiary hearing, and he did not testify or submit an affidavit stating that he did not possess a
real firearm.
II. LAW AND ANALYSIS
I agree with the majority’s conclusion that Dawson has not presented sufficient evidence
establishing actual prejudice. I disagree with the majority’s conclusion that there was not a
“significant possibility” of actual innocence related to the felony-firearm and felon-in-possession
charges.
At the outset, I agree with the majority that the appropriate lens for this case is MCR
6.508(D)(3) as opposed to MCR 6.508(D)(2). But “[t]he court may waive the ‘good cause’
requirement of subrule (D)(3)(a) if it concludes that there is a significant possibility that the
defendant is innocent of the crime.” MCR 6.508(D)(3). If the court finds good cause or waives
the requirement, the defendant must still demonstrate “actual prejudice.” MCR 6.508(D)(3)(b).
For a defendant, like Dawson, who pleads guilty, “actual prejudice” requires the defendant to show
“the defect in the proceedings was such that it renders the plea an involuntary one to a degree that
it would be manifestly unjust to allow the conviction to stand[.]” MCR 6.508(D)(3)(b)(ii).
Alternatively, “in any case,” actual prejudice may be shown if “the irregularity was so offensive
to the maintenance of a sound judicial process that the conviction should not be allowed to stand
regardless of its effect on the outcome of the case[.]” MCR 6.508(D)(3)(b)(iii).
Here, there is a significant possibility that Dawson did not possess a real firearm during
any of the robberies. By extension, there is a significant possibility that he is legally innocent of
felon in possession of a firearm and felony-firearm. Unlike armed robbery, both felony-firearm,
MCL 750.227b, and felon-in-possession, MCL 750.224(f), require proof that the defendant
possessed a real firearm. People v Perkins, 473 Mich 626, 636; 703 NW2d 448 (2005) (relating
to felon-in-possession); People v Mitchell, 456 Mich 693, 698; 575 NW2d 283 (1998) (relating to
felony-firearm). See also 750.222(e) (defining “[f]irearm” as “any weapon which will, is designed
to, or may readily be converted to expel a projectile by action of an explosive”). Acknowledging
that in our current posture, the burden is on Dawson to establish that he did not possess a real
firearm, rather than on the prosecution to establish that he did possess a real firearm, the trial court
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could reasonably look to the body of evidence before it. I disagree with the majority’s conclusion
that Dawson presented no evidence. Admittedly, his evidence is circumstantial. Dawson
consistently stated that he possessed a toy gun. This included his statement in the PSIR. Neither
of the plea colloquies included an admission that Dawson used a real gun. These robberies were
part of an apparent spree in which Dawson used similar tactics. The 2008 robbery involved a toy
gun. Shortly after the 2009 robberies, during his arrest, police seized a BB gun close to Dawson’s
person. They never recovered a real gun. The admissions in Dawson’s plea colloquy are
ambiguous. Although circumstantial, there was enough evidence for the trial court to conclude
that there was a significant possibility that Dawson was legally innocent of felony-firearm and
felon-in-possession.
The trial court appears to have relied on this circumstantial evidence in granting the motion
for relief from judgment. But our postconviction procedures require more. See MCR
6.508(D)(3)(b). Under our postconviction procedures, a significant possibility of innocence is not
enough. A defendant-movant also must show actual prejudice. See id. I agree with the majority
that Dawson has not made that showing.
But what would that look like for someone like Dawson? To the extent that he relies on
ineffective assistance of counsel, Dawson must show that his trial counsel did not understand or
did not explain the significance of the prosecution’s burden of proving beyond a reasonable doubt
that he possessed a real firearm during the robberies in order to prove the felony-firearm charges.
He would also have to show that this failure affected his decision to plead guilty. Did counsel
discuss the option to pleading as charged to armed robbery and electing to go to trial on felony-
firearm and felon-in-possession? Was there a strategic decision? Did Dawson intend to admit to
possessing a real firearm (even if he did not) because the Cobbs evaluation was appealing enough?
These are questions that Dawson could have answered by calling his trial counsel as a witness. It
is unclear why he chose not to.
To the extent that Dawson relies on actual innocence, the question of sufficient proof is
much harder. Dawson would have to prove that the instruments he possessed and used during the
2009 robberies were not real firearms. The universe of facts available to this Court create
reasonable questions about whether Dawson possessed a real gun, but only when the burden is on
the prosecution to prove the elements in the affirmative. With a postconviction motion, Dawson
bears the burden of establishing that he did not possess a real firearm. He could have submitted
an affidavit or even have testified at the evidentiary hearing. It is possible that the trial court or
this Court would disregard the affidavit as a self-serving contradiction of the ambiguous statements
in his plea colloquy, but it would at least be more than what we have on the current record to meet
the standard in MCR 6.508(D)(3)(b).
III. CONCLUSION
It is exceptionally rare for a trial court to grant a motion for relief from judgment. Our
postconviction procedures and the posture of this case put us in the position of reversing one of
these rare grants. There was not high-confidence evidence at the plea colloquy—let alone at a
trial—that Dawson possessed a real firearm. There was evidence in the record that Dawson used
a fake gun for the 2009 robberies in addition to the 2008 robbery. Without imposing the burden
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on the prosecution to present, and the trial court to accept, that evidence prior to conviction, the
burden is now on Dawson to refute it. He has not met this burden.
For the reasons stated above, I agree with the outcome of the majority opinion.
/s/ Noah P. Hood
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