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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 26, 2016

v No. 325192 Ionia Circuit Court KYLE BRANDON RICHARDS, LC No. 2014-015993-FH

Defendant-Appellant.

Before: S AAD , P.J., and B ORRELLO and G ADOLA , JJ.

P ER C URIAM

. Following a jury trial, defenda nt Kyle Brandon Richards was co nvicted of assault of a prison employee, MCL 750.197c. He was sentenced as a fourth-of fense habitual offender, MCL 769.12, to 50 months to 40 years’ imprisonment. The sentence i s to be served consecutively “to any other sentence currently bei ng served.” Defendant appeals as of right, and for the reasons set forth in this opinion, we affirm de fendant’s conviction but rem and for further proceedings.

I. BACKGROUND

This appeal arises from an incident that occurred while correc tions officers transported defendant to the segregation unit at Bellamy Creek Correctional Facility. On January 3, 2013, corrections officers Christopher Balmes and Christopher Hudson escorted defendant to the segregation unit. Balmes, the victim in this case, testified t hat he had not previously dealt with, saw, or heard of defendant before January 3, 2013. According t o the victim, defendant was handcuffed behind his back, and Hudson and the victim were each on one side of defendant holding one of his arms while escorting him. The victim testif ied that defendant was not yelling but that he seemed upset. Hudson testified that defendant made some statements directly to him during the escort. Hudson furthe r testified that defendant mad e a comment that the officers would not be able to do anything if he assaulted them. The vic tim testified that they first took defendant to the shower because, before inmates go to the segre gation unit, they are strip searched in the shower to make sure they do not have any contra band. Once they arrived at the shower cell, defendant was placed into the shower cell. The vi ctim testified that the door closed behind defendant and automatically locked.

According to the victim, he turne d to walk away after defendan t was placed in the shower cell, and defendant “crouched down next to an opening in the wa ll (known as a ‘restraint slot’) and spit through it, hitting [the victim] in the arm.” Hudson testified that through his peripheral-2- vision he also saw defendant bend down, spit through the restra int slot, and hit the victim’s arm with saliva. The victim, who was wearing a short-sleeved unifo rm, testified that the saliva landed on his right forearm and pa nt leg area and that the sali va “was basically a spit spray.” The victim further testified that the saliva was “not a big wad ,” did not contain phlegm or blood, and hit a section of him rathe r than just one spot. According to the victim, it was not possible for the substance on his arm to be water or something else from the shower because he saw defendant spit on him and because there were no other inmates i n the shower cell besides defendant.

The victim’s supervisor, John Nicewicz, was standing in the vi cinity when the incident happened. The victim testified th at, as a reaction to being sp it, he walked over and told his supervisor because the supervisor needed to know about miscondu ct. Nicewicz testified that he was turned away and did not see defendant spit on the victim bu t that the victim told him that “he just got spat on.” According to Nicewicz, the saliva “was basi cally clear” and “kind of looked like a spray or a mist.” Nicewicz further testified that he be lieved that the substance was spit because the shower was not on and because it did not look like water. The victim testified that he made a written report of the misconduct and that Nicewicz to ok pictures of the areas containing saliva. Using a digital camera, Nicewicz took pictu res of the victim’s arm and pant leg, which were admitted at trial. The victim testified that, after the pictures were taken, he washed his arm off with soap and water. The victim further tes tified that, after work, he washed his pants. With respect to spitting incidents, Nicewicz testif ied, “We train the officers and have them leave the saliva on their body and we try to photograph it and then obviously have them wash it off as soon as what we get what we think are good photo graphs.” Nicewicz further testified that he had never collected clothing that had very sm all amounts of saliva on it—such as the victim’s pants in this case—as evidence. Defendant was eve ntually charged with one count of assault of a prison employee.

During the pretrial phase, defe ndant filed numerous motions inpropria persona and changed attorneys several times. Defendant also raised numerou s other motions, including filing a “notice of change of plea and request for D.N.A and polygraphexamination” that requested to change his plea, DNA testing of the victim’s clothing, and a po lygraph examination of all witnesses; a motion to remove and disqualify his current attorn ey, coupled with a request for reappointment of counsel; and a motion to quash and bar 4 th habitual sentence enhancement upon constitutional challenge of habitual application. After a hear ing on April 22, 2014, the trial court granted defendant’s reque st for a new attorney.

The trial court heard yet another motion for new counsel on June 3, 2014. At this hearing, defendant’s second appoi nted attorney stated that ther e was a breakdown in the attorney-client relationship. A ccording to counsel, defendant told counsel not to visit him, and defendant refused to see counsel or listen to any of his advice . Appointed counsel further stated that he could not prepare for trial because of those reasons an d that it was a hostile work environment for him because of “threats here of Judicial Tenure Commission [and] the Attorney Grievance Commission.” In respon se, the prosecution noted thattrial was scheduled for that week. After some dialogue betw een defendant and the trial court, the trial court asked defendant, “Do you wish to represent yourself in these proceedings?” Defe ndant responded, “No, I do not. I want [c]ounsel that is effectiv e . . . I want an attorney who will do their job.” Defendant subsequently threatened to s eek legal reprimand by going to the Judicial Tenure Commission, the-3- Attorney Grievance Commission, the Civil Rights Commission, and to the Governor, “if [he] ha[d] to.” Thereafter, the trial court granted the motion for new counsel. A third attorney was appointed as defendant’s counsel. Not long thereafter, there w as another motion for new counsel, and, on August 12, 2014, there was a hearing to addres s this motion wherein defense counsel withdrew his motion. At the hearing, defense counsel s tated, “Your Honor, [defendant] and I had an opportunity to discuss the case and discuss our di ffering opinions. I respect him. I believe he respects me and now we will withdraw the motion.” O n October 20, 2014, voir dire began with defendant’s third appointed counsel as defendant’s a ttorney.

On the morning of the sole day of trial and right after the pr ospective jurors swore to truthfully answer the voir dire questions, defense counsel aske d the trial court if he could approach. After the potential j urors exited the courtroom, def ense counsel stated that defendant indicated that he now wanted to represent himself. Following a rgument from the prosecution, the trial court then allowed defendant an opportunity to speak, and he stated that he had questions for the jury and that he should be allowed to ask the m because he was going to represent himself. In response , the trial court stated:

[Defendant], I’m going to inte rrupt you because you are not rep resenting yourself. We have had numerous pretrial motions in this matter and this i s now the 3 rd attorney who has been appointed to represent you. [Defense cou nsel] has worked very hard to accommodate your requests and to present those to the Court. The Court finds that your request to represent yourself is untimely . Again, you’ve had multiple opportunities to present this issue to the Court and s o your request to represent yourself i s denied here today.

[Defendant], I’m not going to entertain this further at this point in time in light of the fact that [defense counsel] has presented to me a list of q uestions that you provided to him, that we have reviewed this morning and have fo und to be fair questions that the Court will be asking the jurors. But as the prosecutor argued, the Court Rules do provide the C ourt with the discretion and au thority to conduct voir dire and this Court will be doing that. Very quickly. I’ m not going to be leaving the jurors out in the hallway long. Was there somethin g else you wanted to say? (emphasis added).

Defendant then stated that he wanted to call other prisoners a s witnesses to discredit the testimony from the corrections officers. The trial court concl uded the matter by stating that they were in the middle of voir dire, that the issue of witnesses co uld be addressed at a later time, and that defendant’s request to repr esent himself was denied. Afte r the prosecution’s case-in-chief, defendant stated, “As stipulated to at the beginning before the jury came here, I did want to represent myself and there were things I would like to address with the Court. There were witnesses I wanted to bring. None of those things were allowed . So the least the Court could do is grant me the right to take the stand.” Defendant then proce eded to testify against the advice of counsel. Subsequently, before c losing arguments occurred, defe ndant placed an objection regarding his witnesses on the re cord. Specifically, he stated , “I want to let the Court know my dissatisfaction of not being allowed to call several prisoners as witnesses who would have been used to discredit the officers and prove they were engaging in perjury. . . .” He further stated that he was not able to call these witnesses because of the trial co urt’s denial of his request to-4- represent himself and that the witnesses could testify that the officers routinely falsify statements. The trial court stated that the objections were no ted but overruled be cause, “[a]s [it] underst[ood] the issue, there were no other inmates directly in volved in this situation and [defendant] did not have any prio r knowledge, particularly of [ the victim] prior to this incident.” The trial court concluded that a ttacking the “fabrication of re ports” did not have an adequate basis in this case. The jury subsequently found defendant guil ty of assaulting a prison employee and defendant was sentenced as noted above. He now appeals as of right.

II. RIGHT TO SELF-REPRESENTATION

“The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or f ederal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment .” Martinez v Court of Appeal of California , 528 US 152, 154; 120 S Ct 684, 687; 145 L Ed 2d 597 (2000). However, a “defendant also ‘has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.’ ” Id ., quoting Faretta v California , 422 US 806, 807; 95 S Ct 2525, 2527; 45 L Ed 2d 562 (1975). See also Faretta , 422 US at 835-836 (holding that the defendant was denied the constitutional right to conduct his own defense when he clearly and unequivocally requested to do so “weeks before trial”). Furthe r, “[a]lthough the right to proceed in propria persona is guaranteed by the United States Constitut ion, the Michigan Constitution, and state statute, this right is not absolute.” Ahumada , 222 Mich App at 616. Generally, before a court may allow a defendant to proceed in propria persona,

[the] court must determine that (1) the defendant’s request is unequivocal, (2) the defendant is asserting his righ t knowingly, intelligently, and voluntarily through a colloquy advising the defendant of the dangers and disadvantage s of selfrepresentation, and (3) the defe ndant’s self-representation wil l not disrupt, unduly inconvenience, and burden the court and the administration of the court’s business. Russell , 471 Mich at 190.

Defendant argues, and we agree, that the right to self-represen tation is an established Federal and State Constitutional right. Faretta , 422 US at 807; Mich Const 1963, art. 1, sec. 13; Ahumada , 222 Mich App at 616. However, the right to self-representati on is not without its limitations. Since Faretta , the consensus that has emerged from state and federal appellate courts is that a request for self-representation can only be de nied for three reasons: (1) if it is untimely, ordinarily if made after trial has begun; or (2) if t here is sufficient certainty of serious obstructionist misconduct, or (3) if no valid waiver can be acc omplished. LaFave, Israel and King, 3 Criminal Procedure (2d ed.), § 11.5(d) at 582-584.

In People v Hill , 485 Mich 912; 773 NW2d 257 (2009), our Supreme Court held tha t the trial court’s decision “denying [a] request for self-representa tion ‘at this time’ did not deny the defendant his constitutional ri ght to self-representation where the defendant’s request was not timely and granting the request at that moment would have disrupted, unduly inconvenienced, and burdened the administration of the court’s business.” (Emp hasis added). As was the case here, the trial court in Hill simply denied the defendant’s request and failed to make any-5- pertinent inquiry whether defendant’s request to represent hims elf was unequivocal or whether he knowingly, intelligently, and voluntarily wished to waive hi s right. People v Hill , 282 Mich App 538, 551; 766 NW2d 17 (2009), vacated in part by Hill , 485 Mich at 912. Nonetheless, as previously noted, our Supreme Court found that the defendant’s right to self-representation was not violated because the request was untimely. Hill , 485 Mich at 912.

Subsequently, the Sixth Circuit Court of Appeals analyzed the issue in further detail and denied Hill habeas corpus relief on the issue. Hill , 792 F3d at 674. 1 The Sixth Circuit explained that, on the first day of the defendant’s trial, “as potential jurors were ‘on their way up to the courtroom,’” defendant informed th e trial court that he wanted to represent himself. Hill , 792 F3d at 674. The trial court deni ed the request and stated:

No. The court is not going to allow that, especially at the la st minute. Also, it’s not going to be helpful. There is no early indication of this. We are ready to proceed with the trial at this time. To be prepared for that, and to inform the defendant and have him prepared for following the rules of aski ng questions and rules of evidence, the court is going to have to do that during the trial. So at this point it’s not going to work.

You may consult with your attorn ey. We are going to have you s itting right next to him. If you would like paper and pen to tell him what you w ould like, how you would like things, you can do that.

We expect and want you to have a ll the participation you want. We also want you to have a legal representative to follow the rules of the court room. So at this time it is denied. Id

. With respect to the timeliness of asserting the right, the Sixth Circuit explained:

However, “[a]s the Faretta opinion recognized, the right to self-representation is not absolute.” Martinez v Ct of Appeal of Cal, Fourth App Dist , 528 U.S. 152, 161 (2000). First, a defendant m ay forfeit his self-representa tion right if he does not assert it “in a timely manner.” Id . at 162. Such a limit reflects that “[e]ven at the trial level . . . the government’s in terest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in act ing as his own lawyer.” Id . In other words, if the right is asserted in an untimely mann er, it may be deemed forfeited as a threshold matter. Id . at 677.

The Sixth Circuit further explained that “ Faretta did not establish a bright-line rule for timeliness,” that the defendant’s request in Faretta occurred weeks before trial, and that “the Supreme Court has never defined the precise contours of Faretta’s timing element.” Id . at 678- 679. However, “‘most courts require [a defendant] to [assert h is right] in a timely manner,’” id

.

1 “Decisions of federal courts of appeals, while not binding on this Court, may be persuasive.” People v Bosca , 310 Mich App 1, 76 n 25; 871 NW2d 307 (2015).-6- at 679, quoting Martinez , 528 US at 161-162; 120 S Ct 684, and “[g]iven the general standard articulated in Faretta , ‘a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard,’” Hill , 792 F3d at 679, quoting Knowles v Mirzayance

, 556 US 111, 123; 129 S Ct 1411; 173 L Ed 2d 251 (2009). “[T]o the extent that Faretta addresses timeliness, as a matter of clearly established law it can only be read to require a court to grant a self-representation request when the request occurs weeks before trial. ” Hill , 792 F3d at 678 (emphasis added). In making its conclusion that the Mic higan Supreme Court’s holding (that the defendant was not denied his constitutional right to self-representation) was not unreasonable, the Sixth Circuit r easoned that “[a ] trial judge may fairly infer on the day of trial— as the jurors are on their way to the courtroom—that a defendan t’s last-minute decision to represent himself would cause del ay, whether or not the defenda nt requests a continuance.” Hill

, 792 F3d at 681.

The Sixth Circuit also addre ssed defendant’s main argument on this appeal, namely that it was reversible error for the trial court not to have engaged in the findings set forth in MCR 6.005(D). In finding that case la w imposes no such requirement , the Sixth Circuit opined:

First, the U.S. Supreme Court has never held that a court must inquire into the basis of a defendant’s request before denying it as untimely. In other words, the trial court’s denial of Hill’s motion was not at odds with clearly established law. Second, the Michigan Supreme Court’s holding was not based on adetermination that the trial court’s inquiry was a Faretta -compliant. Rather, the Michigan Supreme Court held that the trial court did not violate Hill’s Sixth Amendment right because his “request was not timely and granting the requ est at that moment would have disrupted, unduly inco nvenienced, and burdened the a dministration of the court’s business.” Hill , 773 N.W.2d at 257. The Michigan Supreme Court’s decision was not therefore contrary to or an unreasonable appli cation of Faretta’s requirement to inquire into whether Hill’s request was knowing, intelligent, and voluntary.

We are in accord with the Sixth Circuit’s holding. We do not g lean from any case law presented or reviewed that a trial court must conduct a Faretta inquiry prior to denying a request as untimely. Hill , 792 F3d at 678; Faretta , 422 US at 835 because the underlying rationale for a trial court to conduct an inquiry pursuant to MCR 6.005(D) “is to inform the defendant of the hazards of self-representation, not to determine whether a requ est is timely.” Id. The issue of whether defendant intelligentlyand voluntarily waived his righ t to self-representation was not at issue in Hill . Similarly, it is not an issue in this case. Rather, the dis positive issue in both cases was whether defendant asserted his right to self-representationin a timely manner. Therefore, it was unnecessary for the trial c ourt to engage in an inquiry pur suant to MCR 6.005(D).

The difficulty in deciding whether a request for self-represent ation is timely lies in the fact that Faretta did not establish a bright-line rule for timeliness. Likewise, our Supreme Court has been reluctant to establish abright-line rule for timeline ss going so far as to hold:

The people would have us announce a guideline which would precl ude the assertion of the right to proceed without counsel if it is not made before the trial begins. We cannot accede to this request. Although the potent ial for delay and-7- inconvenience to the court may be greater if the request is mad e during trial, that will not invariably be the case. People v Anderson , 398 Mich 361, 368; 247 NW2d 857 (1976).

Recognizing that Anderson precludes us from establishing a bright-line rule does not lea d us to opine that we are forbidden from using the date of the re quest relative to the date of trial as a factor when considering the issue of timeliness. Clearly, timeliness is established, at least in part, by the date of trial rela tive to the date of the request. Indeed, to the extent the Supreme Court considered the issue of timeliness in Farcetta , they did so by corre lating the date that defendant’s request was made to the date of the trial, finding that defendant’s request was made “[w]ell before the date of tria l,” and “weeks before trial.” Farcetta , 422 US at 807; Hill , 792 F3d at 678.

Having decided the date of the request relative to the date of trial is a factor to be considered, we next turn to the entirety of the record to determine whether the request to selfrepresentation was timely.

In this case, defendant brought numerous pre-trial motions. Im portantly, defendant never made a request for self-represen tation. In fact, when specific ally asked by the trial court if he wanted to represent himself defendant emphatically replied: “No .” Rather than proceed in propria persona he told the trial judge he wanted an “effective ” attorney. In direct response to his request, the trial court a ppointed a different attorney to represent defendant. Following that ruling, defendant con tinued to file motions with the trial court, (some of which are named above), but at no time did defenda nt make a request for self-re presentation. Then, approximately one week from the scheduled date of trial, defendant again requ ested that the trial court appoint a different attorney to represent him. Again, the trial court ho nored defendant’s request. Shortly thereafter, defendant again res umed filing motions with the tri al court. It was not until after the jury had been sworn that defendant, through counsel, made the r equest to proceed in proper personia. It was at that juncture that the trial court denied the request finding the request untimely.

Viewing the entirety of the recor d, we find that the defendant was not deprived of his constitutional right to self-re presentation. The trial court p lacated defendant’s proclivity to request substitute counsel. By the date of trial, defendant ha d the benefit of three separate trial counsel. On these facts, we cannot find how defendant’s consti tutional right to counsel was denied. Rather, the record clearly reveals that defendant was afforded every opportunity to the effective assistance of counsel, including the right to represe nt himself. That he declined to affirmatively assert his right to counsel until the date of tri al, coupled with all of the other factors outlined in this opinion, leads us to concur with the trial court’s finding that defendant’s request was untimely. Further, to the e xtent it may be necessary under our Supreme Court’s decision in Hill , we also conclude from the record evidence that “granting the request at that moment would have disrupted, unduly inconvenien ced, and burdened the adminis tration of the court’s business.” Hill , 485 Mich 912. Consequently, the trial court’s decision denyi ng defendant’s request to selfrepresentation was well within the range of reasonable and prin cipled outcomes and was not an abuse of discretion. Hicks , 259 Mich App at 521; Ahumada , 222 Mich App at 614. Accordingly, defendant is not entitled to relief.-8- III. DESTRUCTION OF EVIDENCE

Next, defendant argues that he was denied due process by the d estruction of evidence. This Court reviews a defendant’s constitutional due process cla im de novo. People v Schumacher , 276 Mich App 165, 176; 740 NW2d 534 (2007). To warrant rever sal on a claimed due process violation involving the failure to preserve evidenc e, “a defendant must prove that the missing evidence was exculpatory or that law enforcement personnel acted in bad faith.” People v Hanks , 276 Mich App 91, 95; 740 NW2d 530 (2007) (emphasis added). M ore specifically, as relevant here, when the evidence is only “potentially useful” f ailure to preserve the evidence does not amount to a due process violation unless bad faith can be shown. Arizona v Youngblood , 488 US 51, 58; 109 S Ct 333, 337; 102 L Ed 2d 281 (1988). A “[d]efendant bears the burden of showing that the evidence was exculpatory or that the police acted in bad faith.” People v Johnson , 197 Mich App 362, 365; 494 NW2d 873 (1992).

Before trial began, defendant filed a motion to dismiss the ca se based on the failure to preserve the victim’s shirt, which defendant argued contained s amples of the alleged saliva. In response, the prosecution argued that the victim was wearing a short-sleeved shirt and that the saliva landed on his forearm. Defendant then argued that the a lleged saliva likely splattered onto the shirt. The trial court denied the motion because defendant ’s argument was speculative in nature and was based on what conceivably could have happened. At a subsequent motion hearing, defendant argued that the case should be dismissed bas ed on the failure to preserve the saliva. Defendant argued that failing to preserve the saliva v iolated MDOC policy and that the substance could not be tested because it was not preserved. Th e trial court denied the motion stating that defendant was free to make the argument to the jur y at trial. The trial court reasoned that “it was not reasonable to expect the officer to wait until a forensic team came to collect this sample, if it was even collectible, so to speak, particularly i n light of the fact that there is evidence in the form of photographs.”

Failing to preserve potentially useful evidence can amount to a due process violation in certain situations. In Arizona v Youngblood , 488 US 51, 57-58; 109 S Ct 333, 337; 102 L Ed 2d 281 (1988), the Court stated:

The Due Process Clause of the Fourteenth Amendment . . . makes the good or bad faith of the State irrelevant when the State fails to discl ose to the defendant material exculpatory evidence. B ut we think the Due Process Cl ause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said that it could have been s ubjected to tests, the results of which might have exonerated the defendant.

The Court then held, “We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentiall y useful evidence doe s not constitute a denial of due process of law.” Id at 58. Thus, to warrant reversal on a claimed due process violation involving the failure to preserve evidence, “a defend ant must prove that the missing evidence was exculpatory or that law enforcement personnel acte d in bad faith.” People v Hanks , 276 Mich App 91, 95; 740 NW2d 530 (2007), lv den 480 Mich 100 8 (2008). A “[d]efendant bears the burden of showing that the evidence was exculpatory or that the police-9- acted in bad faith.” People v Johnson , 197 Mich App 362, 365; 494 NW2d 873 (1992), lv den 442 Mich 931 (1993).

Here, defendant failed to demonstrate that the evidence was ex culpatory as opposed to potentially exculpatory if subject to tests that yielded favora ble results. Defendant argues that the substance on the victim’s arm was exculpatory because, if t he substance had been preserved, testing could have ruled out def endant as a source or shown tha t the substance was water instead of saliva. While defendant tes tified he did no t spit at anyone and that water fro m the showerhead could have splattered off the floor and through the restraint s lot, testimony from the corrections officers and police strongly supported that defendant spat on the victim. The victim testified that the substance on his arm was not water because he saw defendant spit on him. Hudson testified that the shower cell was a confined space; defendant was the on ly inmate in the shower cell; and that he saw defendant spit on the victim. Hudson testified tha t the shower was off. Further, according to Nicewicz, the victim reacted and said that “he jus t got spat on.” In addition, there was testimony that the saliva wa s “spray spit” and was not a large “wad,” and, as the trial court alluded to, the sample may not have been able to be collected. Thus, for these reasons, defendant has shown only that the evidence was potentially e xculpatory. Id . Thus, defendant had to show bad faith with respect to the failure to preserve. Hanks , 276 Mich at 95.

With respect to bad faith, there is no indication on the recor d that the victim washed his arm off in bad faith. While defendant argues that the victim k nowingly and intentionally destroyed the evidence and that not preserving evidence of misc onduct violated the prison operating procedures, testimony was presented regarding what st eps should be taken, in accordance with the operating procedures, to collect evidence i n a case such as this one:

We photograph it to maintain the evidence to show, in this case , in a courtroom what has happened and then we encourage the employee to clean q uickly afterwards. Prisons have peopl e with communicable diseases and there’s a concern of getting it washed off as quickly as possible.

Further testimony revealed that the prison was not equipped to scrape saliva off one’s arm and put it in a test tube for DNA purposes. The victim testified that he saw defendant spit on him, that he informed his supervisor, that he made a report of the m isconduct, that he waited for his arm to be photographed, and that he washed his arm off with soa p and water after the pictures were taken. The record simply does not support that the victim washed the saliva off his arm in bad faith. See United States v Garza , 435 F3d 73, 75 (CA 1, 2006) (explaining that conscious and deliberate actions were no t enough to show bad faith and th at “even if, as found by the district court, [the police’s] actions were ‘short-sighted and even negligent,’ this does not satisfy the requirement of bad faith”). See also Johnson , 197 Mich App at 365 (explaining that “the routine destruction of taped police broadcasts, where the purpo se is not to destroy evidence for a forthcoming trial, does not mandate reversal”).

In sum, because defendant has not met his burden of establishi ng that “the evidence was exculpatory or that the police acted in bad faith,” id ., defendant’s due process claim based on the destruction of evidence is without merit, Hanks , 276 Mich App at 95; Johnson , 197 Mich App at 365. Accordingly, defendant is no t entitled t o relief.-10- IV. RESENTENCING

Next, defendant argues that he is entitled to resentencing bec ause his sentence was based on inaccurate guidelines and was unreasonable under People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015). “A sentence that departs from the applicable guidelines range [is] reviewed by an appellate court for reasonableness.” Id . at 392. Recently, in People v Steanhouse , ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 318329, issued Oc tober 22, 2015); slip op at 21-24, this Court held that the reasonableness of a sentence is determined by using the “principle of proportionality” standard set forth in People v Milbourn , 435 Mich 630; 461 NW2d 1 (1990).

Here, defendant raised a scoring challenge to Offense Variable (OV) 19 in a motion for resentencing. At the hearing on the motion, the prosecution ag reed with the scoring change, which changed defendant’s applicable guidelines range to 12 to 48 months—making his minimum sentence of 50 months outside the applicable guidelines range. The trial court stated that it considered the new sentencing guidelines range but, non etheless, determined that the sentence was reasonable. However, the trial court’s ruling on the issue occurred before the Steanhouse decision was issued. Therefore, “the trial court was unaware of and not expressly bound by [the] reasonableness standard rooted in the Milbourn principle of proportionality at the time of sentencing.” Steanhouse , ___ Mich App at ___; slip op at 25 (emphasis added). See also People v Shank , ___ Mich App ___; ___ NW2d ___ (2015) (Docket No. 321534, iss ued November 17, 2015); slip op at 3 (explaining that “the trial co urt did not have the benefit of our Supreme Court’s decision in Lockridge or this Court’s decision in Steanhouse ”) (emphasis added).

V. STANDARD 4 BRIEF

Next, defendant, in propria per sona, argues that the retroacti ve application of Lockridge violates the Ex Post Facto Clause. However, defendant waived t his issue. “[W]aiver is the intentional relinquishment or a bandonment of a known right.” People v Vaughn , 491 Mich 642, 663; 821 NW2d 288 (2012) (quotation marks and citation omitted) . “A defendant who waives a right extinguishes the underlying error and may not seek appell ate review of a claimed violation of that right.” Id . Specifically, “[a] defendant should not be allowed to assign error on appeal to something his own counsel deemed proper” before the trial court

. People v Green , 228 Mich App 684, 691; 580 NW2d 444 (1998). “To do so would allow a def endant to harbor error as an appellate parachute.” Id . At the hearing on the motion for resentencing, defense couns el argued that the Lockridge decision was issued after her written motion and that Lockridge “made it so the guidelines are advisory but ordered that the Trial Courts c onsider the applicable guideline range in fashioning a sentence and then that sentence would be reviewed for reasonableness.” Defense counsel further argued that, under Lockridge , defendant’s sentence was unreasonable. Accordingly, by making this argument, defense counsel deemed th e application of Lockridge to defendant’s case proper at the trial court level. To allow def endant to assign error on appeal to the application of Lockridge would allow defendant harbor this alleged error as an appellat e parachute. Id . Thus, this issue is waived, and the alleged error is extingu ished. Vaughn , 491 Mich at 663.

Moreover, even if defendant had not waived the issue, he has n ot demonstrated plain error for this unpreserved argument. People v Carines , 460 Mich 750, 762-765; 597 NW2d 130-11- (1999). “The Ex Post Facto Clause, by its own terms, does not apply to courts.” Rogers v Tennessee , 532 US 451, 460; 121 S Ct 1693, 1699; 149 L Ed 2d 697 (2001). The Clause “is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.” Id . at 456; 121 S Ct 1693, 1697. Defendant relies on cases that have found Ex Post Facto Clause violations when different versions o f sentencing guidelines were applied. See eg, Peugh v United States , ___ US ___, ___; 133 S Ct 2072, 2082; 186 L Ed 2d 84 (2013) (explaining “that applying amended sentencing guidelines that increase a defendant’s recommended sentence can violate the Ex Post Facto Clause”). H owever, these cases are distinguishable because an amended version of the sentencing gu idelines was not applied to defendant’s case. Defendant’s case was pending on direct revie w when Lockridge was issued on July 29, 2015. Therefore, because defendant’s case was pending on review, Lockridge applies retroactively. See People v Lonsby , 268 Mich App 375, 389; 707 NW2d 610 (2005) (“[I]t is well-established that a new rul e for the conduct of criminal pr osecutions that is grounded in the United States Constitution applies retroactively to all cases, state or federal, pending on direct review or not yet final.”) See also United States v Barton , 455 F3d 649, 657 (CA 6, 2006) (explaining that the Court was “join[ing] every other circuit in holding that [retroactively applying] Booker [2] does not violate ex post facto- type due process rights of defe ndants”) (emphasis added). Defendant failed to establish plain error, Carines , 460 Mich at 763, and as a consequence thereof, is not entitled to relief.

Lastly, defendant argues that h is due process rights were viol ated because the prosecution failed to timely file its notice seeking to enhance defendant’s sentence. The resolution of this issue involves the interpretation of a statute, which this Cour t reviews de novo. People v Morales , 240 Mich App 571, 575; 618 NW2d 10 (2000). MCL 769.13 govern s the timing of when a prosecutor may seek to enhance a defendant’s sentence un der the habitual offender statutes and provides in pertinent part:

(1) In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under section 10, 11, or 12 of this chapter, by filing a written notice of his or her intent to do so within21 days after the defendant’s arraignment on the information charging the underly ing offense or, if arraignment is waived, within 21 days after the filing of the i nformation charging the underlying offense.

Here, defendant did not waive his arraignment. Therefore, the applicable time period for measuring the 21-day period begi ns with the date of “defendant’ s arraignment on the information charging the underlying offense.” MCL 769.13(1) (emphasis add ed). Contrary to defendant’s argument on appeal, there is a distinction between an arraignment on the information and an arraignment on the warrant or complaint. Compare MCR 6. 104 (“Arraignment on the Warrant or Complaint”), with MCR 6.113 (“The Arraignment on the Indictment or Information”). See also People v Nix , 301 Mich App 195, 207; 836 NW2d 224 (2013) (referring to the arraignment on the inform ation as the “circuit court arr aignment”). Defendant was

2 United States v Booker , 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005).-12- arraigned on the information in circuit court on February 13, 2 014. On that same day, the prosecution filed the first amended information, which containe d a fourth offense habitual offender notice. Thus, the prosecution’s notice came well with in the 21-day period after defendant’s arraignment on the information. MCL 769.13(1). Ac cordingly, defendant’s due process argument premised upon t he timing of the prosecution’s notice fails.

Affirmed but remanded for further inquiry as to whether resent encing is required. We do not retain jurisdiction.

/s/ Henry William Saad /s/ Stephen L. Borrello /s/ Michael F. Gadola