COA 366734 PEOPLE OF MI V DANA TRAMAYNE THOMAS Opinion - Per Curiam - Unpublished 12/19/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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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/Cross-Appellant,
UNPUBLISHED
December 19, 2025
10:24 AM
v No. 366734
Oakland Circuit Court
DANA TRAMAYNE THOMAS, LC No. 2021-278163-FH
Defendant-Appellant/Cross-Appellee.
Before: ACKERMAN, P.J., and BORRELLO and LETICA, JJ.
PER CURIAM.
Defendant appeals as of right his conviction of assault with intent to do great bodily harm
less than murder, MCL 750.84, for which he was sentenced as a fourth-offense habitual offender,
MCL 769.12, to 25 to 60 years’ imprisonment. During the pendency of defendant’s appeal, we
granted his motion to remand to the trial court to conduct a Ginther1 hearing pertaining to his
assertion of ineffective assistance of counsel.2 Following the remand proceedings, the trial court
vacated defendant’s conviction, a decision that the prosecution now contests on cross-appeal. For
the reasons set forth in this opinion, we affirm the trial court’s ruling.
I. BACKGROUND
This case arises out of an altercation between defendant and Jeffrey Ellwanger on May 16,
2021, in Pontiac, Michigan. Defendant was accused of hitting Ellwanger with a nightstick 7 to 10
times. Defendant was originally charged with felonious assault, and the prosecution filed a notice
of intent to seek sentence enhancement as a fourth-offense habitual offender with a maximum
penalty of 15 years’ imprisonment. After waiving preliminary examination on the felonious
1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2 People v Thomas, unpublished order of the Court of Appeals, entered July 10, 2024 (Docket No.
366734).

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assault charge and several pretrial hearings, the prosecution filed an amended general information
charging defendant with assault with intent to do great bodily harm less than murder. The
prosecution also filed a notice to seek enhancement of a defendant’s sentence as a fourth-offense
habitual offender with a 25-year mandatory minimum sentence.
At a jury trial, defendant was found guilty of assault with intent to do great bodily harm
less than murder and sentenced to 25 to 60 years’ imprisonment. Defendant filed an appeal based
on ineffective assistance of counsel. At the Ginther hearing, the assistant prosecutor assigned to
the case testified that he informed defendant’s trial counsel several times that if defendant did not
plead to the felonious assault charge, he intended to increase the charges. Defendant’s trial counsel
testified that he did not inform defendant of the prosecutor’s intention to seek the increased
charges, but informed defendant of his opinion that the case was undercharged. Defendant testified
that he did not know that the prosecution intended to seek increased charges if he did not plead to
the felonious assault charge. Following the Ginther hearing, the trial court found defendant’s trial
“counsel ineffective due to his failure to inform the [d]efendant of the consequences of choosing
not to plead guilty to the original charge of felonious assault.” The court vacated defendant’s
conviction and reinstated the “original charge of felonious assault, habitual fourth, for Defendant
to consider pleading guilty as originally charged.” The prosecution now cross-appeals.
II. ANALYSIS
In its appeal, the prosecution contends that the trial court erred in finding that trial counsel
failed to inform defendant of the potential elevation of charges should he choose not to accept a
plea to the original charges. The prosecution further argues that even if trial counsel did not
communicate the prosecutor’s intentions, because defendant has not established that he would have
accepted the plea offer or that there exists a reasonable probability that such an offer would have
been presented to the court, defendant cannot demonstrate prejudice.
Defendant argues that the trial court appropriately vacated his conviction, citing evidence
that trial counsel did not adequately inform him of the ramifications associated with declining to
plead guilty to the original felonious assault charge. Defendant asserts that trial counsel had a duty
to advise him that failure to plead to the original charge could lead to the prosecutor filing more
severe charges. This omission, according to defendant, constituted a failure to meet the objective
standard of reasonableness, consequently impairing his ability to make an informed and voluntary
decision regarding the plea and leaving him unaware of the full repercussions of his choice.
“A claim of ineffective assistance of counsel presents a mixed question of fact and
constitutional law.” People v Isrow, 339 Mich App 522, 531; 984 NW2d 528 (2021) (quotation
marks and citation omitted). “All findings of fact are reviewed for clear error, while the legal
questions are reviewed de novo.” Id. (quotation marks and citation omitted). “When the reviewing
court is left with a definite and firm conviction that the trial court made a mistake, there is clear
error.” Id., quoting People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (quotation marks
omitted). An appellate court must also give deference to the “special opportunity of the trial court
to judge the credibility of the witnesses who appeared before it.” People v Johnson, 502 Mich
541, 565; 918 NW2d 676 (2018), quoting MCR 2.613(C). De novo review means that this Court
must “review the issues independently, with no required deference to the trial court.” People v
Beck, 504 Mich 605, 618; 939 NW2d 213 (2019).

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A criminal defendant has a right to a fair trial, and therefore effective assistance of counsel.
Isrow, 339 Mich App at 531, citing US Const, Am VI, and Const 1963, art 1, § 17. “As at trial, a
defendant is entitled to the effective assistance of counsel in the plea-bargaining process.”
Douglas, 496 Mich at 591-592. “To establish ineffective assistance of counsel, a defendant must
show (1) that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms and (2) that there is a reasonable probability that, but for counsel’s
error, the result of the proceedings would have been different.” People v Shaw, 315 Mich App
668, 672; 892 NW2d 15 (2016), citing Strickland v Washington, 466 US 668, 687-688, 694; 104
S Ct 2052; 80 L Ed 2d 674 (1984). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 US at 694.
To demonstrate prejudice from counsel’s ineffectiveness that results in a defendant’s
decision to reject a plea offer and stand trial, “a defendant must show that but for the ineffective
advice of counsel there is a reasonable probability that,” (1) “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)”; (2) “the court would have
accepted its terms”; and (3) “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.” Douglas,
496 Mich at 592, quoting Lafler v Cooper, 566 US 156, 164; 132 S Ct 1376; 182 L Ed 2d 398
(2012).
The prosecution contends that the trial court erred in its determination that defendant was
not adequately informed of the prosecution’s intention to escalate charges should he decline to
plead to the felonious assault charge. There are some contradictions within the record as to what
was discussed between the prosecutor and defense counsel. However, the record is clear that trial
counsel failed to convey the critical information regarding the prosecutor’s intent to seek more
severe charges should defendant not plead to the original felonious assault charge. This finding
by the trial court is buttressed by the fact that defendant testified that he was not aware of the 25-
year mandatory minimum sentence enhancement until the preliminary examination for the
increased charge.
In contrast, the assistant prosecutor’s testimony indicated that trial counsel had informed
him of defendant’s decision to reject the plea offer. However, the trial court deemed trial counsel’s
failure to adequately inform the defendant about the potential consequences of declining the guilty
plea for the original felonious assault charge as particularly significant. By integrating the assistant
prosecutor’s assertions regarding repeated notifications to trial counsel concerning the intent to
pursue enhanced charges, the trial court established a sufficient basis to conclude that trial counsel
was aware of the prosecution’s intentions yet failed to effectively communicate this critical
information to the defendant.
In matters of witness credibility, this Court must defer to the trial court’s assessments.
Johnson, 502 Mich at 565; MCR 2.613(C). The trial court deemed the testimonies of both trial
counsel and defendant credible, ultimately determining that defendant was not apprised of the
prosecution’s stance. Given that the trial court’s findings are substantiated by the record, they do
not rise to the level of clear error.

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The prosecution further contends that defendant has not met the prejudice prong of the
Strickland test. It asserts that defendant has failed to demonstrate a plausible likelihood of
accepting the plea offer or that the trial court would have approved such a plea due to defendant’s
consistent assertion of innocence throughout the proceedings. According to the prosecution, for
defendant to now claim a willingness to accept a plea would amount to an admission of perjury.
However, the prosecution’s argument fails to consider that this Court has held that a defendant
who maintains innocence at trial is not foreclosed from claiming ineffective assistance of counsel
based on trial counsel’s failure to inform defendant of a plea offer. See People v Walker (On
Remand), 328 Mich App 429; 938 NW2d 31 (2019). In Walker, a defendant challenged his jury
trial convictions claiming that he received ineffective assistance of counsel because his counsel
failed to inform him of a plea offer. Id. at 434. Despite the defendant’s testimony at the jury trial
and Ginther hearing that he was innocent and not present at the scene of the shooting, the defendant
testified that he would have pleaded guilty if his trial counsel would have conveyed the
prosecution’s offer to him. People v Walker, unpublished per curiam opinion of the Court of
Appeals, issued October 12, 2017 (Docket No. 332491), p 5, rev’d 503 Mich 908 (2018). The trial
court granted the defendant’s motion for relief from judgment. Walker, 328 Mich App at 434. On
appeal, this Court initially found that the trial court erred in finding a reasonable probability that
the defendant would have accepted the plea offer. Id. at 435. However, our Supreme Court
reversed this Court’s decision and held that the trial court did not clearly err in finding a reasonable
probability that the defendant would have accepted the plea offer. Id., citing People v Walker, 503
Mich 908, 908 (2018). On remand, this Court affirmed the trial court’s grant of relief to defendant.
Hence, a defendant may raise the argument that he would have entered a plea of guilty but for the
ineffective assistance of his counsel, notwithstanding his declaration of innocence. Id.
In People v White, 331 Mich App 144, 150; 951 NW2d 106 (2020), the defendant argued
that he was denied his right to effective assistance of counsel because he was misadvised whether
to reject the prosecution’s plea offer. This Court found that the trial court did not clearly err in
determining that the “defendant was disinclined to plead guilty to a felony [the defendant]
maintained he did not commit.” Id. at 154. The trial court had concluded the defendant did not
meet his burden of establishing that he would have accepted the prosecution’s plea. Id. at 154-
155. This Court found that it was unclear whether the trial court could have established a factual
basis for a guilty plea because “[i]f defendant truly had not committed (or truly believed he had
not committed) any of the crimes to which he allegedly confessed, then entering a guilty plea
would have entailed committing perjury.” Id. at 153-155. In White, this Court explicitly
distinguished the facts from Walker because “[i]n Walker, the defendant’s trial counsel did not
even inform the defendant of a plea offer.” Id. at 149 n 4, citing Walker, 328 Mich App at 432.
Here, the trial court implicitly determined that the prejudice prong of Strickland was
satisfied by its citations to supporting evidence within the record. For example, defendant testified,
“I tried to plead guilty and I asked [trial counsel] for some type of resolution from the prosecutor,
like a lower charge or some probation or some county time.” He further stated, “I would have pled
guilty had I known that something was being worked out.” When questioned on the rationale for
pleading guilty if he did not commit a crime, defendant responded, “Because I knew that
something—because I knew something happened. I knew the something, something prior to. I
was being blamed for something.”

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The prosecution contends that defendant’s statements reflect an unwillingness to plead
unless offered additional concessions. However, defendant’s testimony can also be reasonably
construed as indicating a willingness to accept a plea if he had been informed of the prosecutor’s
intention to escalate the charges. An agreement to refrain from pursuing a higher charge contingent
on a guilty plea could be perceived as a significant benefit. Additionally, this case is analogous to
Walker and distinguishable from White in that the defendant was not made aware of the plea offer.
Here, the assistant prosecutor testified that if defendant did not plead guilty to the original charge,
he would enhance the charges against defendant. As noted, trial counsel did not convey this to
defendant because, “[he] can’t predict the future.”
In order to obtain a new trial, a defendant must show that (1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different. People
v Armstrong, 490 Mich 281, 289-290; 806 NW2d 676 (2011); see also, People v. Pickens, 446
Mich 298, 521 NW2d 797 (1994) (adopting the federal constitutional standard for an ineffective-
assistance-of-counsel claim as set forth in Strickland ). Courts of this State have long held that
failure to convey a plea offer or provide accurate advice regarding its consequences can constitute
ineffective assistance of counsel if the defendant can demonstrate both deficient performance and
prejudice under the Strickland test. See People v Williams, 171 Mich App 234, 241; 429 NW2d
649 (1988) (“[W]e agree with the many courts which have held that an attorney’s failure to advise
his client of a plea bargain offer may be ineffective assistance of counsel.”). Generally, we require
defendants to show that the plea offer would have been accepted and resulted in a less severe
sentence than the one ultimately imposed. Id. at 242; Douglas, 496 Mich at 595; White, 331 Mich
App at 150.
Here, the assistant prosecuting attorney indicated that he repeatedly communicated to trial
counsel his intention to enhance the charges against defendant unless a plea was entered for the
original felonious assault charges. Trial counsel, however, failed to relay this critical information
to defendant, justifying his inaction by stating that he “can’t predict the future.” Based on this
record, the trial court concluded that trial counsel’s failure to inform the defendant of the
prosecution’s intent to pursue increased charges fell below an objective standard of
reasonableness, leading to its conclusion that failure to properly advise defendant of the
prosecution’s plans to enhance the charges against him constituted ineffective assistance of
counsel.
It is undisputed that accepting a plea to the original charges would have likely resulted in
a more lenient sentence than what the defendant ultimately faced. Moreover, contrary to the
prosecution’s assertions on appeal, defendant testified that he would have accepted a plea deal for
the original charges had he been adequately informed of the potential consequences.
Consequently, the trial court found that the defendant was not informed of the ramifications of
rejecting the plea offer and that he sufficiently demonstrated prejudice stemming from trial
counsel’s ineffective assistance.
Following our review of the record, we find no error, much less reversible error, in this
assessment. Thus, we affirm the trial court’s decision to vacate defendant’s convictions and

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reinstate the original charge of felonious assault, habitual fourth, allowing the defendant to
reconsider pleading guilty as initially charged.
As for defendant’s appeal, which involved his claim of ineffective assistance of counsel
that related to jury instructions, we decline to consider it because it is now moot. “An issue is
moot when an event occurs that renders it impossible for the reviewing court to fashion a remedy
to the controversy.” People v Thue, 336 Mich App 35, 39; 969 NW2d 346 (2021) (quotation marks
and citation omitted). We will generally “not decide moot issues.” Id. Defendant’s remaining
issue brought on appeal is moot because defendant has already obtained the remedy to his stated
issue—his conviction has been vacated. Id.
Affirmed in part, dismissed in part, and remanded for further proceedings. We do not retain
jurisdiction.
/s/ Matthew S. Ackerman
/s/ Stephen L. Borrello
/s/ Anica Letica

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