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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-Appellee,

UNPUBLISHED

December 11, 2018

V No. 338820

Tuscola Circuit Court

DAVID MATTHEW PONTELLO, LC No. 15-013520-FH

Defendant-Appellant.

Before: GLEICHER, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

David Pontello pleaded guilty to two counts of felon in possession of a firearm, MCL 

750.224f, two counts of possession of a firearm during the commission of a felony (felon-inpossession), MCL 750.227b, and one count of carrying a concealed weapon without a permit, 

MCL 750.227. Defendant subsequently sought to withdraw his plea, claiming he was denied the 

right to counsel at the plea proceeding. Defendant also asserted that he received bad advice and 

should have gone to trial where he would have defended with a New York State restoration of 

rights form. The trial court denied defendant’s motions for post-judgment relief.

The trial court required defendant to represent himself on the eve of trial without 

following the procedures established by court rule and caselaw to protect indigent criminal 

defendants’ constitutional rights. However, the trial court correctly determined that defendant 

could be tried and had no valid defense for the felon-in-possession (and therefore felony-firearm) 

charges based on his prior New York felony conviction and failure to have his right to possess 

firearms restored in Michigan. Rather than vacating or reversing the trial court’s denial of 

defendant’s motion to withdraw his guilty plea, we remand to allow defendant to consider, with 

the assistance of counsel, whether he still desires that remedy.

I. BACKGROUND

On September 19, 2015, defendant was arrested in Michigan on suspicion of breaking 

and entering a nearby home. Police found a loaded pistol on defendant’s person and a loaded 

(but disassembled) shotgun, body armor, and ammunition in his backpack. On the way to the 

police station, defendant threatened to kill or harm law enforcement officials, including by 

blowing up the Tuscola County Jail upon his release.
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No evidence connected defendant to the breaking and entering and he was never charged 

in that regard. The prosecution did charge defendant with making a false report or threat of 

terrorism, carrying a concealed weapon without a permit, and two counts each of felon in 

possession of a firearm,1 felon in possession of ammunition, and felony-firearm. The felon-inpossession charges were based on defendant’s 1995 New York conviction of first-degree 

reckless endangerment in violation of NY Penal Law § 120.25 (“A person is guilty of reckless 

endangerment in the first degree when, under circumstances evincing a depraved indifference to 

human life, he recklessly engages in conduct which creates a grave risk of death to another 

person.”). For this offense, defendant was sentenced in New York to five years’ probation.

Defendant’s first appointed attorney, Gregory Bringard, requested a competency 

examination for his client. Bringard described that defendant sent him a letter accusing a jail 

guard of entering his cell and injecting him “with an unknown substance.” Surveillance footage 

contradicted defendant’s claim. Defendant also accused the guard of poisoning or drugging his 

food. During a meeting with his client, defendant indicated that “hidden cameras in his cell” 

were “broadcasting his life on the internet in New York” and that “the mafia” was behind it. 

 1 MCL 750.224f proscribes felon-in-possession, in relevant part, as:

(2) A person convicted of a specified felony shall not possess, use, 

transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state 

until all of the following circumstances exist:

(a) The expiration of 5 years after all of the following circumstances exist:

(i) The person has paid all fines imposed for the violation.

(ii) The person has served all terms of imprisonment imposed for the 

violation.

(iii) The person has successfully completed all conditions of probation or 

parole imposed for the violation.

(b) The person’s right to possess, use, transport, sell, purchase, carry, ship, 

receive, or distribute a firearm has been restored under [MCL] 28.424.

* * *

(10) As used in subsections (2) and (4), “specified felony” means a felony 

in which 1 or more of the following circumstances exist:

(a) An element of that felony is the use, attempted use, or threatened use of 

physical force against the person or property of another, or that by its nature, 

involves a substantial risk that physical force against the person or property of 

another may be used in the course of committing the offense.
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Defendant had an “outburst” at the hearing on that motion, stating that Bringard “can’t represent 

a dog” and “I’ll represent myself first.” Accordingly, the court ordered the court officer to 

remove defendant from the courtroom. Bringard thereafter filed a motion to withdraw as 

defendant’s counsel.

Replacement counsel, Duane Burgess, appeared at defendant’s competency hearing, but 

defendant refused to sit at the defense table with him, declaring, “I’m not gonna be railroaded by 

that man or your court-appointed lawyers in your court. He’s not filed one motion in my defense 

in nine months, and I will not have him as my attorney.” The court considered a letter from the 

Center for Forensic Psychiatry, stating that defendant “declined participation regarding the 

evaluation relative to his criminal responsibility.” The psychologist conveyed that defendant 

understood the purpose of the evaluation and the potential impact of its results, and that “his 

choice to forego an evaluation . . . was based on rational reasoning.” The court then found 

defendant competent to stand trial.

Two days later, Burgess filed a motion to withdraw as defense counsel. Burgess 

described that defendant repeatedly contacted him from prison despite that Burgess had 

explained that he could do nothing until the competency hearing was finalized. On the day of the 

hearing, defendant told Burgess, “[Y]ou’re fired,” and “I’ll hire a real attorney.”

Despite that Burgess requested withdrawal, Burgess filed a motion to dismiss the felonin-possession and felony-firearm charges, arguing that defendant’s right to possess and own 

firearms had been restored in New York through the issuance of a “certificate of relief from 

disabilities.” The judge who sentenced defendant in New York issued the certificate on the day 

of sentence. It provided:

This certificate is issued to the holder to grant relief from all or certain 

enumerated disabilities, forfeitures, or bars to his employment automatically 

imposed by law by reason of his conviction of the crime or the offense specified 

herein. 

This certificate shall NOT be deemed nor construed to be a pardon.

The certificate identified defendant and his conviction for “reckless endangerment 1st degree, 

Penal Law Section 120.25.” The certificate continued with the following options, with the first 

selected:

11. CHECK ONE BOX ONLY

This certificate shall:

a. X Relieve the holder of all forfeitures, and of all disabilities and bars to 

employment, excluding the right to retain or to be eligible for public office, by 

virtue of the fact that this certificate is issued at the time of sentence. . . .

b. Relieve the holder of all disabilities and bars to employment, excluding 

the right to be eligible for public office.
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c. Relieve the holder of the forfeitures, disabilities or bars herein enumerated 

____________________________________________________.

The court also rendered the certificate “permanent,” meaning that it was not revocable.

A letter from the New York State Division of Criminal Justice Services explained the 

certificate. The writer clarified that the certificate “does not eliminate or expunge the felony 

conviction from your client’s record.” Rather, “[i]t eliminates any statutory disabilities that are 

associated with a felony conviction such as precluding the filing [of] an application for a pistol 

permit.” Defendant would have to file an application for a pistol permit and the licensing agency 

was still permitted to consider his felony conviction in deciding whether to grant the motion, 

although the agency would be required to “take into account that issuance of the Certificate 

means in the eyes of the court that he was rehabilitated from the offense.” 

And Burgess attached to the motion to dismiss a secondary source, described only as “a 

recitation of New York Law,” stating that firearm privileges may be restored after a conviction 

for a felony or a “serious offense” by a pardon or a certificate of relief from disabilities. The 

attached treatise stated, however, that “[r]estoration must be specified in the document, and Class 

A-1 and violent felonies are ineligible.” Defendant subsequently filed his own motion to 

dismiss, but based only on the lack of witness testimony against him.

At the June 8, 2016 hearing on Burgess’s motion to withdraw, the attorney advised the 

court that defendant had fired him and did not authorize him to file motions on his behalf. 

Defendant expressed his belief that Burgess’s motion regarding the restoration of his right to 

own firearms “lack[ed] critical evidence.” Moreover, defendant “concur[red] with the motion to 

withdraw.” The court advised defendant:

The Court. Okay. Here’s what I want you to understand, Mr. Pontello. If 

Mr. Burgess is released from his obligations, I will not be appointing another 

attorney for you. So you will represent yourself, hire an attorney or Mr. Burgess 

is your attorney. Those are your three options. Do you understand that?

Defendant. Yes, I do. I don’t have a problem retaining my own attorney. 

I might need a continuance until I finish the sale of some property I have and I 

would be able to retain my own counsel. I mean it’s just that his motion lacks . . . 

so much critical evidence pertaining to my rights. I don’t feel that it even came 

close to - -

The Court. All right. Well, before you answer my question . . . I am not 

adjourning your trial. Your trial is June 21st.

Defendant. Okay.

The Court. So having that information, do you want Mr. Burgess to 

remain as your attorney, do you want to hire an attorney or do you wish to 

represent yourself?
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Defendant. Well, I mean unless he’s gonna argue the motion I prepared 

pertaining to my rights being restored, . . . I feel that I would have to go with 

either representing myself or retaining an attorney. I mean if we can get a 

continuance for the motions . . . and he could look over my motions, you 

know, . . . maybe we’d be able to work together, you know. If not, I mean I’m 

gonna have to get a better defense attorney . . . to handle this situation, at least . . . 

the motions are very important.

The Court. Okay. So I’m gonna ask you again, Mr. Pontello, do you want 

to represent yourself, do you want Mr. Burgess to continue representing you or do 

you wish to hire an attorney? Your trial is going June 21st.

The Defendant. Okay. And . . . as far as the motions I filed, I would want 

to argue the motions that I had sent in ‘cause they’re - -

The Court. Okay. I - - you’re gonna get an opportunity to do that. We 

need to resolve this matter first.

Defendant. Okay. I mean unless we were going to meet and discuss the 

motions and what his motions lack. I would have to either represent myself or 

retain an attorney.

The court then allowed Burgess to withdraw as counsel. In doing so, the court noted that 

Burgess was defendant’s second court-appointed attorney with whom defendant could not “get 

along.” Although defendant had the right to counsel, the court stated that defendant did not have 

the right to appointed counsel of his choosing. The court advised defendant that “as of this 

minute, you are representing yourself,” until and unless defendant hired his own attorney.

Defendant argued on his own behalf that he legally possessed the weapons on his person 

on the day in question. Specifically, defendant noted that he had a New York State certificate of 

relief from disabilities that “eliminated any statutory disabilities that were associated with a 

felony conviction.” He continued, “I’m seeking a job in law enforcement and I’m a security 

professional and all my firearms and the ammunition were a hundred percent legal.” After 

reading portions of the certificate into the record, defendant stated, “I’d also like to remind . . . 

the courts that a conviction being set aside, an expungement or a pardon can only come from the 

sentencing judge or . . . the governor of the state in which the crime occurred.” The court 

interrupted, advising defendant that the certificate specifically provided that it did not expunge 

his record and that his conviction still stands. Even so, defendant continued to argue that his 

conviction had been expunged or set aside and therefore MCL 750.224f, proscribing felon-inpossession, was inapplicable.
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The prosecutor relied upon the documentation attached to Burgess’s motion to dismiss, 

which provided that the certificate of relief from disabilities must specifically provide for the 

restoration of firearm rights. Defendant’s certificate did not so provide. And, the prosecutor 

continued, defendant’s right to possess firearms “certainly” was not restored in Michigan as he 

had not taken the required steps in Michigan.2 The prosecutor contended that the definition of 

first-degree reckless endangerment, including a depraved indifference to human life, “involve[d] 

a substantial risk that physical force against the person or property of another may be used in the 

course of committing the offense,” as provided in Michigan’s definition of a “specified felony”

under the felon-in-possession statute. As the New York conduct fell within the definition of 

MCL 750.224f, defendant was required to apply to have his firearm rights restored under MCL 

28.424, and he had not done so. Defendant countered that his certificate did relieve him of all 

forfeitures and disabilities arising from his felony conviction, except the right to run for public 

office. New York was the only state that could restore his rights as the rights were lost there, and 

that was already done, he insisted.

The trial court denied defendant’s motion to dismiss. The court noted that the New York 

certificate did not clear the felony conviction from defendant’s record. Defendant’s reckless 

endangerment felony was a “specified felony” under Michigan law, the court opined. 

Accordingly, defendant was required to follow the procedures set forth in MCL 28.424 to have 

 2 Pursuant to MCL 28.424(1), a felon must petition the circuit court in the county where he 

resides for restoration of his firearm rights. MCL 28.424(4) provides:

The circuit court shall, by written order, restore the rights of an individual 

to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a 

firearm or to possess, use, transport, sell, carry, ship, or distribute ammunition if 

the circuit court determines, by clear and convincing evidence, that all of the 

following circumstances exist:

(a) The individual properly submitted a petition for restoration of those rights as 

provided under this section.

(b) The expiration of 5 years after all of the following circumstances:

(i) The individual has paid all fines imposed for the violation resulting in 

the prohibition.

(ii) The individual has served all terms of imprisonment imposed for the 

violation resulting in the prohibition.

(iii) The individual has successfully completed all conditions of probation 

or parole imposed for the violation resulting in the prohibition.

(c) The individual’s record and reputation are such that the individual is not likely 

to act in a manner dangerous to the safety of other individuals.
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his firearm rights restored. Defendant had not done that. Even if defendant’s rights were 

restored in New York, the court continued, Michigan was a separate jurisdiction with its own 

rules that had to be followed.

The day before trial was scheduled to begin, defendant, representing himself, moved to 

preclude documentary evidence that he pleaded guilty in New York to a class D, nonviolent 

felony. Defendant contended that the evidence was inadmissible under MRE 609(c) and (d) 

because the certificate of relief from disability equated to a “pardon, annulment, or certificate of 

rehabilitation.” He also contended that his prior conviction did not count under the felon-inpossession statute because he had been pardoned. The court advised defendant that MRE 609 

related to impeachment with a prior felony and that the prior felony was substantive evidence in 

this case. Moreover, the court reminded defendant, the court had already determined that the 

reckless endangerment conviction amounted to a specified felony under Michigan law and that 

the certificate of relief did not amount to a pardon. Defendant tried to convince the court to the 

contrary, but the court did not budge. At the close of the hearing, the prosecutor moved to 

preclude the New York certificate of relief from disability from evidence at trial. As the court 

found that defendant had committed a specified felony and that the certificate neither expunged 

that conviction nor restored defendant’s right to possess firearms, the document would be 

irrelevant and confusing to the jury. The court ultimately warned defendant that he would be 

required to present evidence that he took steps in Michigan to have his rights restored in order to 

avoid the charges against him.

On the day set for trial, defendant again appeared without counsel. The court clarified 

that defendant could present evidence that he attempted to restore his right to possess firearms in 

Michigan, but could not present similar evidence regarding activity in New York. Defendant 

lamented that this gutted his entire defense. After being advised of his potential sentencing 

consequences, defendant decided to plead guilty to the counts of felon-in-possession, felonyfirearm, and carrying a concealed weapon. The prosecutor dismissed the threat of terrorism 

charge because the witness to defendant’s statements was not available for trial and also 

dismissed the charge of felon in possession of ammunition.

On August 2, 2016, defendant filed an in pro per motion to withdraw his guilty plea. He 

continued to contend that he had been pardoned in New York and added that the age of his 

conviction rendered that evidence inadmissible. Before considering that motion and imposing 

sentence, the court appointed new counsel for defendant—Gary Crews. At that hearing, Crews 

indicated that defendant wished to withdraw his motion to withdraw his plea:

Mr. Pontello has decided because of the Court’s rulings that if there were a trial, 

he couldn’t get before the jury the evidence that he wanted to get before the jury, 

and therefore . . . the expectation is overwhelming that he would lose that jury 

trial case and the punishment could then . . . be more severe. Likewise, . . . 

there’s a possibility the prosecution could bring forward other charges. Because 

of that, Mr. Pontello’s withdrawing . . . his motion to withdraw his plea.

After a short recess, defendant changed his mind and resupported his motion to withdraw his 

plea. Crews stated on the record that he advised defendant that this was not in his best interests. 

Crews warned defendant that the court had already ruled on the admissibility of the certificate of 
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relief from disabilities and determined as a matter of law that he had not been pardoned in New 

York and that those issues could not be raised at trial. Defendant again vacillated and indicated 

that he wished to “withdraw [his] motion to set aside [the] plea.” Defendant addressed the court, 

however, expressing his belief that he could legally own firearms and that he intended to appeal 

the court’s rulings. He continued, “I don’t believe . . . that I was given the chance to really prove 

the point having no attorney through my pretrial motions and whatnot. I feel a better attorney 

would have definitely had more success, prov[ing] that.”

At the close of the hearing, the court sentenced defendant to two years’ imprisonment for 

felony-firearm with credit for time served, and to a one-year consecutive probationary term for 

the other charges.

Defendant did not give up. With the assistance of his newly appointed appellate counsel, 

David Worden, defendant filed another motion to withdraw his guilty plea. Defendant 

contended that his plea was involuntary because “defense counsel misled [him] to believe he 

could appeal the Court’s MRE 403 evidence ruling”—regarding the admissibility of evidence of 

the restoration of his firearms rights in New York—and because he “had a valid defense of 

entrapment by estoppel, raised before the plea, and the Court should have had an evidentiary 

hearing.” The entrapment by estoppel defense was based on defendant’s reliance on the New 

York certificate of relief from disabilities.

Before the trial court could consider the motion, defendant requested that Worden 

withdraw as counsel of record and stated his intent “to report defense counsel’s alleged 

misconduct to the Attorney Grievance Commission.” The court granted this motion. Defendant 

then submitted an affidavit to the court, indicating that he had not authorized Worden to file a 

motion to withdraw his guilty plea; rather, he had authorized Worden only to file a delayed 

application for leave to appeal. Defendant followed up by filing in pro per a nonconforming 

delayed application, which was denied without prejudice by this Court. People v Pontello, 

unpublished order of the Court of Appeals, entered May 30, 2017 (Docket No. 337749).

After remedying his appellate filing errors with the assistance of appointed counsel, 

Christine Pagac, defendant renewed his motion to withdraw his guilty plea. Defendant 

contended that his plea was not knowing, understanding, and voluntary because he was denied 

the right to counsel and was forced to represent himself. He continued that he should not have 

been prosecuted for felon-in-possession and felony-firearm as reckless endangerment was not a 

specified felony, and that he had a valid defense of entrapment by estoppel, further invalidating 

his plea. 

The prosecutor challenged defendant’s motion. First, the prosecutor noted that defendant

had already received two court-appointed attorneys before trial and could work with neither. 

Defendant indicated that he wanted to retain his own counsel, but appeared at the next hearings 

alone. The court was not required to give defendant unlimited time to find an attorney with 

whom he could work. Second, as to the entrapment defense, the prosecutor asserted that it 

would only apply if defendant had committed his current offense in New York. No Michigan 

governmental official had misled defendant to believe that his right to own and possess firearms 

had been restored in this state. Finally, the prosecutor countered that reckless endangerment as 

defined under New York law was a specified felony under Michigan law because a “depraved 
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indifference to human life” shown through reckless conduct is synonymous with activity that 

“involves a substantial risk that physical force against the person or property of another may be 

used in the course of committing the offense.”

The trial court denied defendant’s motion. The court rejected that defendant was denied 

his right to counsel as he was advised of his right to retain his own counsel, represent himself, or 

keep his court-appointed attorney, and made his choice knowingly, voluntarily, and intelligently. 

The court noted that it had repeatedly considered, and rejected, defendant’s claims that his New 

York conviction had been pardoned or expunged and that the New York certificate of relief was 

a defense to his Michigan charges.

II. LEGAL PRINCIPLES

On appeal, defendant contends that the trial court should have permitted him to withdraw 

his guilty plea because (1) the court erroneously denied his request to raise an entrapment by 

estoppel defense rendering his plea ineffective, (2) the court and defense counsel advised 

defendant that he could appeal the trial court’s underlying rulings and yet made his plea 

unconditional, and (3) defendant was denied his right to counsel at the plea hearing.

“We review for an abuse of discretion a trial court’s ruling on a motion to withdraw a 

plea.” People v Blanton, 317 Mich App 107, 117; 894 NW2d 613 (2016). “A trial court abuses 

its discretion when it selects an outcome that does not fall within the range of reasonable and 

principled outcomes.” Id. (cleaned up).3 We review de novo underlying issues of statutory 

interpretation and constitutional violations. People v Wilder, 485 Mich 35, 40; 780 NW2d 265 

(2010); People v Kloosterman, 296 Mich App 636, 639; 823 NW2d 134 (2012).

Once a defendant is sentenced, he must show “a defect in the plea-taking process” to be 

entitled to withdraw his plea. Blanton, 317 Mich App at 118 (cleaned up). Specifically, MCR 

6.310(C) provides:

The defendant may file a motion to withdraw the plea within 6 months 

after sentence. . . . If the trial court determines that there was an error in the plea 

proceeding that would entitle the defendant to have the plea set aside, the court 

must give the advice or make the inquiries necessary to rectify the error and then 

give the defendant the opportunity to elect to allow the plea and sentence to stand 

or to withdraw the plea. . . .

“[A] court may not accept a plea of guilty or nolo contendere unless it is convinced that the plea 

is understanding, voluntary, and accurate.” People v Cole, 491 Mich 325, 330-331; 817 NW2d 

497 (2012) (cleaned up). “Waivers of constitutional rights,” such as the right to trial by entering 

 3 This opinion uses the new parenthetical (cleaned up) to improve readability without altering the 

substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as 

brackets, alterations, internal quotation marks, and unimportant citations have been omitted from 

the quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).
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a plea, “not only must be voluntary but must be knowing, intelligent acts done with sufficient 

awareness of the relevant circumstances and likely consequences.” Brady v United States, 397 

US 742, 748; 90 S Ct 1463; 25 L Ed 2d 747 (1970).

Moreover, a criminal defendant facing incarceration has a constitutional right to counsel 

at all critical stages of the criminal process. People v Williams, 470 Mich 634, 640-641; 683 

NW2d 597 (2004). But an indigent criminal defendant is not entitled to appointed counsel of his 

choosing. People v Portillo, 241 Mich App 540, 543; 616 NW2d 707 (2000). Upon a criminal 

defendant’s request to proceed pro se, the trial court must determine whether the request is 

unequivocal, whether the defendant is knowingly, intelligently, and voluntarily waiving the right 

to legal counsel, and whether the defendant’s self-representation will disrupt, unduly 

inconvenience, or otherwise burden the court and the administration of justice. People v 

Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976). In addition, the trial court must 

comply with MCR 6.005(D), which provides:

The court may not permit the defendant to make an initial waiver of the right to be 

represented by a lawyer without first

(1) advising the defendant of the charge, the maximum possible prison sentence 

for the offense, any mandatory minimum sentence required by law, and the risk 

involved in self-representation.

(2) offering the defendant the opportunity to consult with a retained lawyer or, if 

the defendant is indigent, the opportunity to consult with an appointed lawyer.

MCR 6.005(E) requires the court to follow up at the start of each subsequent proceeding:

If a defendant has waived the assistance of a lawyer, the record of each 

subsequent proceeding (e.g., preliminary examination, arraignment, proceedings 

leading to possible revocation of youthful trainee status, hearings, trial, or 

sentencing) need show only that the court advised the defendant of the continuing 

right to a lawyer’s assistance (at public expense if the defendant is indigent) and 

that the defendant waived that right. Before the court begins such proceedings,

(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or

(2) if the defendant requests a lawyer and is financially unable to retain one, the 

court must appoint one; or

(3) if the defendant wants to retain a lawyer and has the financial ability to do so, 

the court must allow the defendant a reasonable opportunity to retain one.

“[I]f the trial court fails to substantially comply with the requirements in Anderson and 

the court rule, then defendant has not effectively waived his Sixth Amendment right to the 

assistance of counsel.” People v Russell, 471 Mich 182, 191-192; 684 NW2d 745 (2004). 

“Substantial compliance requires that the court discuss the substance of both Anderson and MCR 

6.005(D) in a short colloquy with the defendant, and make an express finding that the defendant 

fully understands, recognizes, and agrees to abide by the waiver of counsel procedures.” Russell, 
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471 Mich at 191 (cleaned up). “Proper compliance with the waiver of counsel procedures is a 

necessary antecedent to a judicial grant of the right to proceed in propria persona. Proper 

compliance requires that the court engage, on the record, in a methodical assessment of the 

wisdom of self-representation by the defendant.” People v Hicks, 259 Mich App 518, 523; 675 

NW2d 599 (2003) (cleaned up). 

III. ASSISTANCE OF COUNSEL

The trial court did not comply with its duties under MCR 6.005 and Anderson before 

forcing defendant to make a quick in-court decision whether to represent himself. Defendant did 

not request to represent himself. Rather, the court warned defendant at the June 8, 2016 hearing

that if he terminated the services of his second court-appointed lawyer, he would have to either 

retain counsel or represent himself; the court would not appoint substitute counsel. Defendant 

emphatically and repeatedly indicated that he would not accept Burgess as his attorney. 

Although defendant stated numerous times that he would prefer to retain counsel of his choosing, 

he also indicated that he could not afford to do so and therefore felt forced to represent himself.

At the June 8 hearing, the trial court did not advise defendant of the charges against him, 

the potential sentences he faced, or the risks involved in self-representation, as required by MCR 

6.005(D)(1). The court made no consideration of whether defendant’s self-representation would 

disrupt the proceedings, as required by Anderson. This was especially troubling in this case as 

the court had removed defendant from the courtroom in the past for disruptive behavior. The 

court also violated MCR 6.005(E) at the June 15 hearing by failing to ensure that defendant 

wanted to continue in pro per. And on June 16, the day scheduled for the start of trial, the court 

inquired whether defendant wished to represent himself or to proceed with retained counsel, but 

did not determine whether the indigent defendant had reconsidered his position with regard to 

appointed counsel.

The prosecutor suggests that the court’s failure to methodically test the validity of 

defendant’s waiver of counsel is somehow excused because defendant twice requested substitute 

counsel without good cause, in the prosecutor’s estimation. Indeed, “ ‘a defendant’s failure to 

retain counsel within a reasonable time’ ” can amount to a forfeiture of the right to counsel. 

People v Kammeraad, 307 Mich App 98, 132; 858 NW2d 490 (2014), quoting US v McLeod, 53 

F3d 322, 325 (CA 11, 1995). However, defendant only made two requests in nine months; this 

was not a case where the defendant engaged in a continuous parade of bad behavior designed to 

interfere with the court proceedings. Compare Kammeraad, 307 Mich App 98. Moreover, the 

trial court did not reject defendant’s second request for substitute counsel until June 8, 2016, a 

mere eight days before his trial was set to begin. Defendant’s inability to secure retained counsel 

within that time does not strike us as unreasonable.

Compounding these errors, the court failed to acknowledge that defendant had previously 

made bizarre statements that led his first attorney to question whether defendant was competent 

to stand trial. Although the court found defendant competent to be tried, “[a] different standard 

applies with respect to competency to represent one’s self.” People v McMillan, 63 Mich App 

309, 313; 234 NW2d 499 (1975). A defendant may be competent enough to work with counsel 

and stand trial and yet be mentally incompetent to knowingly, voluntarily, and intelligently 

waive his right to counsel or to manage “ ‘the basic tasks needed to present his own defense 
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without the help of counsel.’ ” People v Brooks, 293 Mich App 525, 542; 809 NW2d 644 

(2011), vacated in part on other grounds 490 Mich 993 (2012), quoting Indiana v Edwards, 554 

US 164, 175; 128 S Ct 2379; 171 L Ed 2d 345 (2007).

On this record, we are not satisfied that defendant knowingly, intelligently, and 

understandingly waived his right to counsel and proceeded pro se of his own free will. 

Accordingly, defendant is entitled to some type of relief. However, defendant’s claims that he 

could not be prosecuted for felon-in-possession and felony-firearm and that he had a valid 

defense to those charges lack merit. Therefore, withdrawing his plea very well might not be in 

defendant’s best interests.

IV. SPECIFIED FELONY

Defendant contends that he was erroneously advised that his plea was conditional and 

that he would be permitted to challenge on appeal whether his underlying offense of first-degree 

reckless endangerment in violation of New York law was a specified felony for purposes of 

Michigan’s felon-in-possession statute. Defendant continues to assert that reckless 

endangerment is not a specified felony and that the charges of felon-in-possession and felonyfirearm should have been dismissed.

A “felony” under the felon-in-possession statute “means a violation of a law of this state, 

or of another state, or of the United States that is punishable by imprisonment for 4 years or 

more, or an attempt to violate such a law.” MCL 750.224f(9)(b). MCL 750.224f(10)(a) defines 

a “specified felony,” in relevant part, as a felony that includes as an element “the use, attempted 

use, or threatened use of physical force against the person or property of another, or that by its 

nature, involves a substantial risk that physical force against the person or property of another 

may be used in the course of committing the offense.” Pursuant to NY Penal Law § 120.25, “[a]

person is guilty of reckless endangerment in the first degree when, under circumstances evincing 

a depraved indifference to human life, he recklessly engages in conduct which creates a grave 

risk of death to another person.”

Reckless conduct undertaken with depraved indifference to human life that creates a 

grave risk of death to another is consistent with conduct “that by its nature, involves a substantial 

risk that physical force against the person or property of another may be used.” A review of 

New York cases affirming convictions and indictments for first-degree reckless endangerment 

uncovered cases where the defendant stabbed another, beat another (regardless of whether the 

victim was actually severely injured), fired a weapon at an occupied vehicle at a busy gas station, 

fired a handgun with conscious disregard for whether the gun was loaded, and caused a fire or 

explosion with the potential of injuring others. See Matter of Marcus C, 848 NYS2d 317; 46 

AD2d 816 (2007); People v Lynch, 95 NY2d 243; 715 NYS2d 691; 738 NE2d 1172 (2000); 

People v Moore, 715 NYS2d 546; 277 AD2d 596 (2000); People v Williams, 594 NYS2d; 191 

AD2d 234 (1993); People v Koullias, 465 NYS2d 748; 96 AD2d 869 (1983). The statutory 

elements fall in line and defendant made no offer of proof, and never even claimed, that his New 

York offense did not “by its nature, involve a substantial risk that physical force against the 

person or property of another may be used.”
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We discern no error in the court’s legal determination that defendant’s prior offense fell 

within the parameters of a specified felony.

V. ENTRAPMENT BY ESTOPPEL

Defendant contends that his plea cannot be deemed knowing and voluntary because he 

possessed a valid defense to the charges of felon-in-possession and felony-firearm—that his right 

to own firearms had been restored by the New York court system. 

The doctrine of entrapment by estoppel applies to preclude prosecution when a 

defendant establishes by a preponderance of the evidence (1) that a government 

official advised the defendant that certain illegal conduct was legal, (2) that the 

defendant actually relied on the government official’s statements, (3) that the 

defendant's reliance was reasonable and in good faith given the identity of the 

government official, the point of law represented, and the substance of the 

official’s statements, and (4) that, given the defendant’s reliance, prosecution 

would be unfair. [People v Pierce, 272 Mich App 394, 399-400; 725 NW2d 691 

(2006).]

Defendant’s argument premised on the alleged restoration of his firearm rights did not 

constitute a valid defense in this case. The New York certificate of relief from disabilities was 

not a pardon or expungement. Defendant’s New York conviction remains on his record. The 

certificate also did not provide on its face that defendant’s right to own or possess firearms had 

been restored. As noted by the New York State Division of Criminal Justice letter, had 

defendant remained in New York, he would have been required to apply for a pistol permit like 

any other citizen and the licensing department would be permitted to consider the fact of and 

circumstances surrounding defendant’s conviction. There was no guarantee that defendant 

would have been permitted to carry a weapon. Although defendant claimed that charges for 

illegally possessing firearms were dismissed against him in New York after his conviction but 

before his move to Michigan, he made no offer of proof in that regard.

Moreover, the state of Michigan is not bound by the state of New York’s decision to 

restore defendant’s right to own and possess arms. Under our federal system, the several states 

may enact and enforce varying standards for recognizing when a felon has rehabilitated his right 

to keep and bear arms. In Michigan, felons must apply to have their rights reinstated following 

the procedure set forth in MCL 28.424. Defendant admitted that he had not followed this course. 

No Michigan governmental official advised defendant that his right to own and possess firearms 

had been restored in the state of Michigan. He was therefore not entrapped into believing his 

conduct was legal.

In the normal course, we would vacate or reverse the trial court’s denial of defendant’s 

motion to withdraw his plea based on the denial of his right to counsel in the days leading up to 

and at the plea hearing. However, the errors defendant cites as invalidating his plea lack merit. 

Knowing this Court’s position, defendant may wish to reconsider his plan to withdraw his plea.
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Accordingly, rather than grant the substantive relief sought by defendant, we remand to the trial 

court to allow defendant to decide whether to withdraw his plea, with the assistance of counsel.

We remand but do not retain jurisdiction.

/s/ Elizabeth L. Gleicher 

/s/ Stephen L. Borrello 

/s/ Jane M. Beckering