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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

UNPUBLISHED

October 12, 2017

v No. 332491

Wayne Circuit Court

JUAN T. WALKER, LC No. 01-003031-01-FC

Defendant-Appellee.

Before: SAAD, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

The prosecution appeals by leave granted1 the trial court order granting defendant’s 

motion for relief from judgment. We reverse and remand. 

Defendant was originally sentenced in 2001 to life imprisonment without parole for firstdegree premeditated murder, MCL 750.316, and two years’ imprisonment for possession of a 

firearm during the commission of a felony (felony-firearm), MCL 750.227b. This Court 

previously affirmed defendant’s convictions and sentences. People v Walker, unpublished 

opinion per curiam of the Court of Appeals, issued March 1, 2005 (Docket No. 239711). The 

Michigan Supreme Court denied defendant’s request for leave to appeal. People v Walker, 474 

Mich 902 (2005). In 2011, defendant filed a motion for relief from judgment in the trial court

after discovering his trial counsel failed to inform him of a plea offer to second-degree murder, 

MCL 750.317, and felony-firearm, with a sentence of 25 to 50 years’ imprisonment for seconddegree murder, plus two years’ imprisonment for felony-firearm. The prosecution faxed the plea

offer to defense counsel several days before the trial commenced, but defendant claimed defense 

counsel never relayed the offer to defendant. The trial court denied defendant’s motion for relief 

from judgment, and he sought leave to appeal in this Court, which was also denied. People v 

Walker, unpublished order of the Court of Appeals, entered May 21, 2012 (Docket No. 307480). 

Defendant sought leave to appeal that order in the Michigan Supreme Court, which was held in 

abeyance pending the decision in Burt v Titlow, ___ US ___; 134 S Ct 10; 187 L Ed 2d 348 

 1 People v Walker, unpublished order of the Court of Appeals, entered September 9, 2016 

(Docket No. 332491). 
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(2013).2 People v Walker, 829 NW2d 217 (2013). Once Burt was decided, the Michigan 

Supreme Court issued an order remanding defendant’s case to the trial court for a Ginther3

hearing, with the following specific instructions: 

. . . we REMAND this case to the Wayne Circuit Court for an evidentiary hearing, 

pursuant to [Ginther], as to the defendant’s contention that his trial counsel was 

ineffective for failing to inform him of the prosecutor’s September 26, 2001 offer 

of a plea bargain to second-degree murder and a sentence agreement of 25 to 50 

years. See Missouri v Frye, 566 US ___, 132 S Ct 1399, 182 L Ed 2d 379 (2012). 

To prevail on a claim of ineffective assistance of counsel, a defendant must show: 

(1) that his attorney’s performance was objectively unreasonable in light of 

prevailing professional norms; and (2) that he was prejudiced by the deficient 

performance. People v Carbin, 463 Mich 590, 599-600, 623 NW2d 884 (2001). 

In order to establish the prejudice prong of the inquiry under these circumstances, 

the defendant must show that: (1) he would have accepted the plea offer; (2) the 

prosecution would not have withdrawn the plea offer in light of intervening 

circumstances; (3) the trial court would have accepted the defendant’s plea under 

the terms of the bargain; and (4) the defendant’s conviction or sentence under the 

terms of the plea would have been less severe than the conviction or sentence that 

was actually imposed. Lafler v Cooper, 566 US ___, 132 S Ct 1376, 1385, 182 L 

Ed 2d 398 (2012).

If the defendant establishes that his trial counsel was ineffective in failing to 

convey the plea bargain as outlined above, the defendant shall be given the 

opportunity to establish his entitlement to relief pursuant to MCR 6.508(D). If the 

defendant successfully establishes his entitlement to relief pursuant to MCR 

6.508(D), the trial court must determine whether the remedy articulated in Lafler 

v Cooper should be applied retroactively to this case, in which the defendant’s 

conviction became final in October 2005. [People v Walker, 497 Mich 894, 894-

895 (2014).] 

After the trial court held a Ginther hearing, it entered an order finding that defendant 

received the ineffective assistance of counsel because his trial attorney failed to inform defendant 

of the plea offer. Defendant then filed another motion for relief from judgment in the trial court, 

as required by our Supreme Court’s remand order, and the trial court granted that motion and 

ordered the prosecution to reoffer defendant the plea deal. Defendant then pleaded guilty and

was resentenced to 25 to 50 years’ imprisonment for second-degree murder and two years’

imprisonment for felony-firearm. 

 2 Although defendant’s application for leave to appeal was held in abeyance pending Burt, the 

Michigan Supreme Court’s specific instructions on remand do not make reference to the Burt

decision, and therefore, it will not be discussed herein.

3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). 
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On appeal, the prosecution argues that defendant was afforded the effective assistance of 

counsel because he was not prejudiced, i.e., he did not demonstrate that there was a reasonable 

probability that he would have accepted the plea offer had it been made known to him. We 

agree.

A claim alleging ineffective assistance of counsel presents “a mixed question of fact and 

law.” People v Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). “A judge must first find the 

facts, then must decide whether those facts establish a violation of the defendant’s constitutional 

right to the effective assistance of counsel.” People v Armstrong, 490 Mich 281, 289; 806 

NW2d 676 (2011) (quotation marks and citation omitted). We review the trial court’s findings 

of fact for clear error and review questions of constitutional law de novo. People v 

Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). “Clear error exists if the reviewing 

court is left with a definite and firm conviction that the trial court made a mistake.” Armstrong, 

490 Mich at 289. Additionally, this Court reviews a trial court’s decision regarding a motion for 

relief from judgment for an abuse of discretion, and we review the trial court’s findings of fact 

supporting its decision on the motion for clear error. People v Swain, 288 Mich App 609, 628; 

794 NW2d 92 (2010). An abuse of discretion occurs when the trial court’s decision “falls 

outside the range of reasonable and principled outcomes” or when the trial court “makes an error 

of law.” Id. at 628-629. 

A defendant is entitled to the effective assistance of counsel during the plea-bargaining 

process just as he or she is entitled to the effective assistance of counsel at trial. People v 

Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). When a defendant seeks relief for 

ineffective assistance of counsel in the plea-bargaining context, he or she must meet the twopronged standard set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 

674 (1984). Douglas, 496 Mich at 592. The defendant must show “(1) that counsel’s 

representation fell below an objective standard of reasonableness, and (2) that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Douglas, 496 Mich at 592, quoting Lafler v Cooper, 566 US 156, 

163; 132 S Ct 1376; 182 L Ed 2d 398 (2012) (quotation marks omitted). In demonstrating 

prejudice, “the defendant must show the outcome of the plea process would have been different 

with competent advice.” Douglas, 496 Mich at 592, quoting Lafler, 566 US at 163 (quotation 

marks omitted). When evaluating alleged prejudice from counsel’s failure to inform the 

defendant of a plea offer, the defendant “must demonstrate a reasonable probability [he] would 

have accepted the earlier plea offer had [he] been afforded effective assistance of counsel.” 

Missouri v Frye, 566 US 134, 147; 132 S Ct 1399; 182 L Ed 2d 379 (2012). Consistent with this 

standard, our Supreme Court’s remand order required defendant to demonstrate prejudice as 

outlined in Lafler: 

[A] defendant must show that but for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have been presented to the court 

(i.e., 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. [Lafler, 566 US at 164.] 
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The only element of this standard in dispute on appeal is whether there was a reasonable 

probability that defendant would have pleaded guilty to second-degree murder had he been 

aware of the plea offer.

4

 “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 US at 694. The prosecution insists that defendant 

was not prejudiced because defendant failed to show a reasonable probability that he would have 

accepted the plea, insisting throughout trial and at his Ginther hearing that he was innocent. 

In Lafler, the defendant rejected a plea offer twice based on his attorney’s erroneous 

representations that the prosecution would not be able to establish intent to murder the victim. 

Lafler, 566 US at 161. A Ginther hearing was held, wherein the defendant argued that his 

attorney’s advice to reject the plea offer constituted ineffective assistance of counsel. Id. The 

parties agreed that defense counsel’s performance was deficient, satisfying the first prong of the 

Strickland two-part test. Id. at 163. Thus, the only issue was the application of the prejudice 

prong. Id. “If a plea bargain has been offered, a defendant has the right to effective assistance of 

counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss 

of the plea opportunity led to a trial resulting in a conviction on more serious charges or the 

imposition of a more severe sentence.” Id. at 168. The defendant demonstrated that but for his 

counsel’s deficient performance, there was a reasonable probability that he would have taken the 

plea deal, and the trial court would have accepted it. Id. at 174. Furthermore, the defendant 

received a sentence that was 31⁄2 times the plea offer, thereby satisfying the prejudice prong. Id. 

The Supreme Court also determined that the appropriate remedy was for the prosecution to 

reoffer the plea, and if the defendant accepted the offer, it was up to the trial court’s discretion 

whether to resentence the defendant. Id. at 170-172, 174-175. 

In Douglas, the trial court rejected the defendant’s claim that he was denied the effective 

assistance of counsel when his attorney failed to correctly inform the defendant of the mandatory 

minimum sentence for first-degree criminal sexual conduct, the defendant rejected two plea 

offers, and he was then convicted at trial and received a more severe sentence. Douglas, 496 

Mich at 564. This Court reversed, concluding that defense counsel’s performance was deficient, 

which prejudiced the defendant. Id. at 564-565. Our Supreme Court agreed that defense 

counsel’s performance was deficient, but it disagreed with this Court’s conclusion that the 

 4 The prosecution did not provide in its statement of the questions involved a challenge to the 

trial court’s finding on the first prong under Strickland, as required by our court rules. MCR 

7.212(C)(5). However, the prosecution provided a cursory argument in its brief, claiming the 

trial court erred when it held that defense counsel’s performance was deficient under Strickland

because it had given defendant the “benefit of the doubt” as to whether he was informed about 

the plea. Even if we were to address this argument, which necessarily challenges the trial court’s 

findings in its earlier opinion and order—not on the motion for relief from judgment—the trial 

court did not clearly err in its finding. Defendant passed a polygraph test as to this issue, defense 

counsel testified that he could not remember relaying the plea offer, and there is no question that 

the prosecutor had sent the fax. The trial court believed defendant’s testimony on this issue, and 

we will not disturb the trial court’s credibility findings. People v Dendel, 481 Mich 114, 130; 

748 NW2d 859 (2008), amended on other grounds 481 Mich 1201 (2008).
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defendant had shown he was prejudiced. Id. at 595. The Douglas Court explained that this 

Court “made no mention of the role that the defendant’s belief in his innocence may have played 

in his decision to go to trial, despite its prominent place in the trial court’s reasoning.” Id. At the 

Ginther hearing, the defense attorney testified that the defendant always maintained his 

innocence. Id. at 596. The defendant testified that he would have accepted the plea had he 

known of the mandatory minimum for the sentence, and had he not mistakenly believed that 

registering on the sex offender list would preclude him from living with his children. Id. Even 

though defendant consistently claimed he would have accepted the plea, the Douglas Court said

“the full body of the defendant’s testimony undermines the credibility of his assertions that either 

these misconceptions or the misinformation regarding the sentence he faced at trial meaningfully 

influenced his decision to reject the prosecution’s plea offer.” Id. at 597. The defendant testified 

that he would not have accepted a plea that required sex offender registration or a plea that 

required jail time because he was innocent, he did not commit the crime, and he thought he 

would prevail at trial. Id. The Michigan Supreme Court explained: 

This testimony is confusing at best, and casts significant doubt upon what 

circumstances, if any, would have led the defendant to accept a plea. It certainly 

betrays no clear error in the trial court’s discernment of the common thread 

running throughout both the defendant’s and his counsel’s testimony: that the 

defendant rejected the prosecution’s plea offers because he was innocent of the 

charges, was not a sex offender, and was not interested in pleading guilty to 

repugnant acts that he did not commit. 

As a result, we are not “left with a definite and firm conviction that the 

trial court made a mistake” in finding that the defendant has failed to show 

prejudice stemming from his counsel’s deficient performance, rather, the record 

amply supports the conclusion that, even had defendant been properly advised of 

the consequences he faced if convicted at trial, it was not reasonably probable that 

he would have accepted the prosecution’s plea offer. [Id. at 597-598 (citations 

omitted)]

The Douglas Court held that the defendant was not entitled to reinstatement of the prosecution’s 

plea offer because the defendant did not demonstrate that he was prejudiced by his attorney’s 

misconduct. Id. at 599. 

The issue here turns on whether the trial court clearly erred when it concluded that there 

was a reasonable probability that defendant would have accepted the plea had his trial counsel 

informed him of it. In other words, whether the trial court’s finding leaves us “with a definite 

and firm conviction that the trial court made a mistake.” Armstrong, 490 Mich at 289. In 

making this determination, we keep in mind that “regard shall be given to the special opportunity 

of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 

2.613(C); People v Dendel, 481 Mich 114, 130; 748 NW2d 859 (2008), amended on other 

grounds 481 Mich 1201 (2008).

At the Ginther hearing, defendant testified that he was innocent, that he did not kill the 

victim, that he was not present at the car wash on the date and time when the victim was killed, 

and that he had nothing to do with the shooting. Likewise, defense counsel testified at the 
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Ginther hearing that defendant maintained his innocence throughout his jury trial. Despite his 

claim of innocence, defendant testified at the Ginther hearing that he would have pleaded guilty 

to murder in order to take advantage of a plea offer that did not “gamble with his life.” 

Defendant’s consistent claim of innocence certainly casts doubt whether he would have 

accepted a plea offer before trial. It goes without saying that defendant now has the benefit of 

comparing an unfavorable sentence of life imprisonment without parole to a term-of-years plea 

offer that appears generous in comparison. Indeed, the trial court that presided over the Ginther 

hearing expressed the same concern about defendant’s credibility in its memorandum opinion 

and order that analyzed both prongs of the Strickland test for ineffective assistance of counsel. 

When examining whether defense counsel’s performance was deficient, the trial court expressed

concerns regarding defendant’s credibility: 

On cross[-]examination by the prosecutor, the defendant gave inconsistent 

and conflicting testimony. He testified that, although he maintained his innocence 

at the trial, he still would have admitted guilt to a crime he did not commit 

because “it wasn’t worth gambling.” Later during cross[-]examination, when the 

prosecutor pressed him on the issue, he testified that he would have made a guilty 

plea admitting that he killed the victim. Yet, he emphatically said that he did not 

commit the crime--restated that he denies admitting the crime, but would admit to 

it because: “I wouldn’t gamble with my life like that.” On re-direct examination 

by defense counsel, defendant testified that although he entered a plea of not 

guilty when he appeared before the trial judge for arraignment on the Information, 

he would have accepted an offer and would have pled guilty if an acceptable plea 

offer had been made. He reiterated on further questioning that on the day that the 

trial court started he would pled [sic] guilty if the “years were right”. These seem 

to be conflicting statements that raises a question of whether the defendant was 

willing to accept the offer of 25 to 50 years.

Admittedly, the trial court seemed to confuse the standards set forth in Strickland and Lafler, 

often discussing what appeared to be a prejudice analysis during its discussion of defense

counsel’s performance. However, when the trial court finally turned to prejudice, it further 

explained:

An examination of the defendant’s testimony at the recent evidentiary hearing 

shows it is convoluted, contradictory, and inconsistent. . . . A reasonable 

conclusion, in the context of defendant’s testimony, is that prior to the beginning 

of trial he did not want to plead guilty in this case.

* * *

Although the defendant vacillated, he eventually testified that he would 

have accepted the plea offer, but his testimony at the evidentiary hearing indicated 

a high probability of reluctance. 

In the end, the trial court found that defense counsel’s performance was deficient and the 

trial court would have accepted the guilty plea had one been offered. More importantly for this 
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appeal, the trial court concluded that defendant “was prejudiced by defense counsel’s failure to 

inform him of the plea offer.” The only basis identified in the memorandum opinion and order 

for reaching this conclusion was “due to the incoherence of defendant’s testimony as to whether 

he would have accepted the guilty plea.” Further confusing matters, the trial court expressly 

stated in the very next sentence of its order that “the court’s reasoning does not answer the 

question of whether an analysis of the prejudiced [sic] prong requires a findings [sic] at this 

juncture of whether the defendant would have made an unequivocal plea of guilty to the reduced 

charged [sic] of second degree murder.” In other words, the court found prejudice without 

finding defendant would have accepted the plea offer.

The trial court then ordered defendant to file a motion for relief from judgment under 

MCR 6.508(D) consistent with our Supreme Court remand order. During the hearing, the trial 

court readily acknowledged that its prior order may “have confused the [prejudice] issue,” but 

ultimately concluded that there was a reasonable probability that defendant would have accepted 

the offer. In so finding, the trial court did not base its decision on the credibility of defendant’s 

testimony, which the court stated it was “not putting that much weight on what the defendant 

said recently.” Instead, it found prejudice because, had his attorney advised him of the offer, his 

counsel “might have” been able to convince defendant to accept the plea. The trial court’s 

conclusion was grounded in the “many cases that I have tried . . . where a [defendant does not] 

understand.” Thereafter, the trial court granted defendant’s motion for relief from judgment, 

finding that defendant would have accepted the plea and ordering the prosecution to reoffer the 

plea.

After a review of the record, we are left with a definite and firm conviction that the trial 

made a mistake in its findings, failed to engage in a proper analysis under Lafler, and thereby 

abused its discretion when it granted defendant’s motion for relief from judgment. Our Supreme 

Court mandated the trial court to implement the prejudice standard set forth in Lafler, including 

whether defendant would have accepted the plea offer. Defendant had the burden of proof in 

showing a reasonable probability that he would have accepted the plea offer. See Douglas, 496 

Mich at 592 (“The defendant has the burden of establishing the factual predicate of his 

ineffective assistance claim.”). In making its decision, the trial court had to conduct a Ginther

hearing and consider evidence to determine whether defendant was prejudiced. When presiding 

over the hearing, it needed to (1) hear witnesses and determine their credibility, (2) define what 

circumstances before trial would have affected defendant’s decision to accept the plea offer, and 

(3) weigh the evidence to determine whether defendant met its burden of proof. After reviewing 

the trial court’s findings, we conclude that it clearly erred by finding that defendant would have

accepted the plea offer. In its ruling, the trial court failed to properly consider defendant’s 

testimony at the Ginther hearing and did not consider any of the actual circumstances underlying

the plea offer, and for those reasons, we are left with a definite and firm conviction that the trial 

court made a mistake.

First, the record amply supports the trial court’s determination that defendant was not 

credible, and therefore, his testimony did not support a finding that he would have accepted the 

plea offer. The trial court acknowledged that not only was defendant’s testimony “convoluted, 

contradictory, and inconsistent,” defendant expressed a “high probability of reluctance” and it 

would be “reasonable” to conclude “that prior to the beginning of trial [defendant] did not want 

to plead guilty in this case.” Even though the trial court concluded that defendant was not a 
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credible witness at the Ginther hearing and hearing on the motion for relief from judgment, it 

informed the prosecution at the latter hearing that it was “not putting that much weight on what 

[defendant] said recently.” Without taking into account defendant’s testimony, the trial court 

employed an analysis in direct contradiction to our Supreme Court’s mandate in Douglas, i.e., 

that a defendant’s testimony, especially his belief in his innocence, is a factor when considering 

prejudice. Id. at 595. 

Second, the trial court did not consider any actual circumstances underlying defendant’s 

case before or during trial. Instead, the trial court used its own experience with defendants in 

similar circumstances and reasoned they on occasion changed their minds when their counsel 

discussed the wisdom of accepting a plea deal—even if they originally professed innocence. The 

trial court did explain on multiple occasions that it had to “look at what was happening back in 

2001,” but at no time did it make any findings specific to defendant’s case. In essence, the trial 

court determined that he was prejudiced because, but for the deficient representation, his trial 

counsel might have convinced him to plead guilty, despite his claim of innocence, without the 

trial court basing its findings on any facts specific to his case. This per se approach to the 

prejudice analysis defies established precedent. The Frye Court indicated that the circumstances 

underlying each individual case at the time that the offer is presented could affect whether the 

defendant would accept the plea. Frye, 566 US at 150 (explaining that the strength of the 

prosecution’s case at the time of the plea offer could affect a prejudice finding). In Frye, the

underlying circumstances of the case were such that it was highly likely that the defendant would 

have accepted the first uncommunicated plea offer because he had later pleaded guilty to a more 

serious charge on a separate offense without any recommendation from the prosecution. Id. 

Additionally, our Supreme Court has required that a defendant’s belief in his innocence be

reviewed in full to determine whether it undermines his proclamation that he would have 

accepted the plea. See Douglas at 595 (holding that a defendant’s belief in his innocence and 

how it may have played in the decision to go to trial is an important factor to consider). By 

simply implementing what appears to be a per se approach to the prejudice analysis without 

making specific findings about the circumstances in this case, the trial court erred when it 

granted the motion for relief from judgment. 

We acknowledge that the “reasonable probability” standard is a lower bar, requiring only 

that the circumstances show a “probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 US at 694. At the Ginther hearing, defendant proclaimed he would have taken 

the plea offer. Furthermore, the original charge, when compared to the plea offer, provides some

proof alone that defendant may have accepted the plea. A first-degree murder charge resulting in

a life sentence without the possibility of parole is more severe than 25 to 50 years’ 

imprisonment. In fact, the difference between 25 years and life imprisonment is almost certainly

greater than the sentences at issue in Douglas, Lafler, and Frye.

5

 However, the trial court did not 

 5 In Douglas, defense counsel informed the defendant that he was facing a 20-year maximum 

sentence when in reality he was subject to a mandatory minimum sentence of 25 years’ 

imprisonment. Douglas, 496 Mich at 593. In Lafler, instead of accepting an earlier plea offer of 

51 to 85 months, the defendant was sentenced following jury trial to 185 to 360 months. Lafler, 

566 US at 161. In Frye, the defendant pleaded guilty to a felony with a four-year maximum 
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base its decision on any of the testimony at the Ginther hearing or on any evidence of the actual 

circumstances before trial. For these reasons, the trial court clearly erred in finding a reasonable 

probability defendant would have accepted the plea offer. Therefore, defendant did not satisfy 

his burden in proving ineffective assistance of counsel, and the trial court abused its discretion 

when it granted defendant’s motion for relief from judgment. 

Reversed and remanded for further proceedings to reinstate defendant’s original 

convictions and sentences. We do not retain jurisdiction.

/s/ Henry William Saad 

/s/ Mark J. Cavanagh 

/s/ Thomas C. Cameron 

sentence after his defense counsel failed to inform him of a plea offer on a separate offense to a 

misdemeanor with a one-year maximum sentence. Frye, 566 US at 138-140.