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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED October 13, 2016

v No. 327187 Chippewa Circuit Court CHRISTOPHER LEHMAN TADGERSON, LC No. 14-001581-FH

Defendant-Appellant.

Before: M ARKEY , P.J., and M URPHY and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Defendant appeals by right his conviction, following a jury tr ial, of resisting and obstructing a law enforcement officer causing injury, MCL 750.8 1d(2). According to the judgment of sentence, defendant was sentenced as a fourth-habit ual offender, MCL 769.12, to 4 to 15 years’ imprisonment for the conviction. We affirm defend ant’s conviction but remand for the ministerial task of correcting the judgment of sentence rel ative to the payment of a probation supervision fee and defendant’s minimum sentence.

Defendant’s conviction arose ou t of a physical altercation tha t he had with a nother inmate named Hammonds at the Chippewa County Correctional Facility. T he prosecution offered testimony and video footage establishing that when defendant an d Hammonds did not heed commands by corrections officers to stop fighting, Chippewa Cou nty Sheriff’s Department Deputy Officer Thomas Lawlor and Correctional Supervisor Corpor al Ashely Reid pulled defendant and Hammonds apart. The video shows that defendant c ontinuously resisted Lawlor as he was being escorted out of the cell. Defendant testified that he was being “choked out” during the fight and that he was unable to hear Lawlor’s comman ds. There was no video footage of what occurred at the cell door, but Lawlor testified that de fendant “made a big lunge at, to get out of my grasp,” and that when defendant did so, Lawlor felt a “pop, pull type feeling” in his back. Defendant maintained that he thought another inmate had grabbed him. Defendant claimed that he stopped resistin g once he realized he was being held by Lawlor. Lawlor testified that he sustained a ruptured disc in his lower back for which h e continues to see a specialist.

Defendant argues that his convi ction is not supported by suffi cient evidence. Defendant admits that he resisted Lawlor and does not dispute that Lawlor suffered a bodily injury requiring medical attention as a result. He argues, however, that the pr osecution failed to prove beyond a reasonable doubt that he knew or had reason to know that the pe rson he was resisting was an-2- officer. We review de novo the issue regarding whether there w as sufficient evidence to sustain a conviction. People v Lueth , 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence – whether direct or circumstantial – in a light most favorable to the prosecutor and determine whe ther a rational trier of fact could find that the essential elements of the crime were proved beyon d a reasonable doubt. People v Reese , 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman , 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellat e court must not interfere wit h the jury’s role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe , 440 Mich 508, 514- 515; 489 NW2d 748 (1992). Circumstantial evidence and the reas onable inferences that arise from such evidence can constitute satisfactory proof of the ele ments of a crime. People v Carines , 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence, but need only prove the element s of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evide nce in favor of the prosecution. People v Kanaan , 278 Mich App 594, 619; 751 NW2d 57 (2008).

A defendant is guilty of resis ting and obstructing an officer causing injury if he or she “assaults, batters, wounds, resist s, obstructs, opposes, or end angers a person who the individual knows or has reason to know is performing his or her duties cau sing a bodily injury requiring medical attention or medical care . . . .” MCL 750.81d(2). As used in the statute, “person” includes “[a] sheriff or deputy sheriff.” MCL 750.81d(7)(b)( v ).

The phrase “has reason to know” “is established with something less than actual knowledge,” and “requires the fact -finder to engage in an analy sis to determine whether the facts and circumstances of the case indicate that when resisting, def endant had reasonable cause to believe the person he was assaulting was performing his or her duties.” People v Nichols , 262 Mich App 408, 414; 686 NW2d 502 (2004) ( internal quotation mark s omitted).

The prosecution presented sufficient evidence for a rational j ury to find that, under the facts and circumstances, defendant had reasonable cause to beli eve that he was resisting an officer. Lawlor and Reid testi fied to Lawlor commanding defend ant and Hammonds to stop fighting. In the video shown to the jury, it appears that as d efendant was pulled away from the altercation, he would have seen Reid, wearing a black uniform, holding Hammonds. Even if defendant did not know who Reid was, it is reasonable to conclu de that a prison inmate would have identified the uniform as one worn by a corrections office r. The video also shows defendant grabbing a pillar and turning his body into Lawlor in an apparent attempt to return to Hammonds. The jury was free to i nfer that defendant would have seen Lawlor’s black uniform at that time. See People v Kosik , 303 Mich App 146, 150-151; 841 NW2d 906 (2013) (“It is for the trier of fact, rather than this Court, to determine what in ferences can be fairly drawn from the evidence and to determine the weight to be afforded to the infe rences.”). Moreover, testimony established that there was a third corrections officer statione d at the open cell door when defendant made his final lunge t hat caused Lawlor’s injury. An d because actual knowledge is not required under MCL 750.81d(2), Nichols

, 262 Mich App at 414, the jury did not necessarily have to find defendant’s testim ony, that he believed he was bei ng grabbed by anot her inmate, not credible in order to convict him . In sum, defendant’s convicti on is supported by the evidence presented at trial.-3- Next, defendant contends, and th e prosecutor concedes, that he was improperly ordered to pay a probation supervision fee. MCL 771.3(1)(d) provides t hat a defendant “shall pay a probation supervision fee” as a condition of a sentence of prob ation when sentenced in circuit court. Because defendant was not sentenced to probation, the t rial court lacked the statutory authority to impose a probation supervision fee. Accordingly, we remand for the ministerial task of correcting the judgment of sen tence so as to delete the prov ision ordering defendant to pay a probation supervision fee.

Next, defendant argues that the trial court erred in ordering him to pay a fee for his courtappointed attorney without first assessing his ability to pay. Under MCL 769.1k(1)(b)( iv ), if a defendant is found guilty after trial, the court may impose “[t ]he expenses of providing legal assistance to the defendant.” MCL 769.1 l provides the procedure for collecting court-imposed costs from prisoners and states in relevant part as follows:

If a prisoner under the jurisdic tion of the department of corr ections has been ordered to pay any sum of money as described in section 1k and the department of corrections receives an order from the court on a form prescribed by the state court administrative office, the department of cor rections shall deduct 50% of the funds received by the prisoner in a month over $50.0 0 and promptly forward a payment to the court as provided in the order when th e amount exceeds $100.00 . . . .

In People v Jackson , 483 Mich 271, 290; 769 NW2d 630 (2009), the Michigan Supreme Court held that defendants do not have a constitutional right t o an ability-to-pay assessment when the trial court imposes a f ee for a court-appointed attorn ey. However, “whenever a trial court attempts to enforce its imposition of a fee for a court-a ppointed attorney under MCL 769.1k, the defendant must be advised of this enforcement actio n and be given an opportunity to contest the enforcement on the basis of his indigency.” Id . at 292 (emphasis omitted). Thus, the Court concluded that “trial courts should not entertain defenda nts’ ability-to-pay-based challenges to the imposition of fees until enforcement of that imposition has begun.” Id

. Accordingly, the trial court did not err in imposing an attorney fee on defendant in the judgment of sentence without first de termining his ability to pay.

However, the lower court record contains a remittance order di recting the Department of Corrections to collect from defendant all of the fees and costs imposed by the trial court, which totaled $1,048, including the assessment of attorney fees, unde r the formula set forth in MCL 769.1 l , as quoted above. And the Jackson Court observed that perfunctory entry of a remittance order under MCL 769.1 l“is an enforcement of the fee without an ability-to-pay assessment.” Jackson , 483 Mich at 294 (emphasis added). But our Supreme Court additionally ruled as follows with respect to a remittance order entered pursuant to MCL 769.1 l :
[W]e decline to hold that this enforcement procedure is uncons titutional, because the statute's monetary calculations necessarily conduct a preliminary, general ability-to-pay assessm ent before the prisoner's funds a re taken.

The ability-to-pay analysis should not be confused with the un derlying constitutional tenet; it is merely a procedure used to ensure c ompliance with the-4- constitutional precept that no i ndigent defendant must be force d to pay. In other words, as long as it does not require indigent defendants to pa y a fee, a procedure that enforces the fee is not unconstitutional simply because it does not require an ability-to-pay analysis. Indeed, the true issue is always indig ency, no matter what test is used to evaluate the issue. And application of § 1 l's calculative procedure necessarily only applie s to prisoners who have an apparent abil ity to pay.

MCL 769.1 l inherently calculates a prisone r's general ability to pay and, in effect, creates a statutory presumption of nonindigency. The pr ovision only allows the garnishment of a prisoner's account if the balance exceeds $50. Although this amount would be insufficient to sustain a defendant living amon g the general populace, it is uncontested that a prisoner's “living expenses” are nil, as the prisoner is clothed, sheltered, fed, and has all his medical ne eds provided by the state. The funds left to the prisoner on a monthly basis are mo re than adequate to cover the prisoner's other minimal expenses and obligations wit hout causing manifest hardship. Thus, we conclude that § 1 l's application makes a legitimate presumption that the pris oner is not indigent.

We acknowledge that one's indigency is an individualized asses sment and that § 1 l's presumption does not result from a full individualized analysi s of a prisoner's indigency. Accordingly, if a prisoner believes that his unique individual financial circumstances rebut § 1 l's presumption of nonindigency, he may petition the court to reduce or e liminate the amount that th e remittance order requires him to pay . However, because we adjudge a prisoner's indigency at the tim e of enforcement on the basis of manifest hardship and because a pri soner is being provided all significant life necessities by the state, we caut ion that the imprisoned defendant bears a heav y burden of establishing his e xtraordinary financial circumstances. . . . [W]hen reviewing a prisoner's cl aim, lower courts must receive the prisoner's pe tition and any proofs of his uniq ue and extraordinary financial circumstances. Further, the lower courts should only hold that a prisoner's individual circumstan ces warrant amending or reducin g the remittance order when, in its discretion, it determines that enforcement w ould work a manifest hardship on the prisoner or his immediate family. The trial courts are under no obligation to hold any formal proceedings. They are on ly required to amend the remittance order when § 1 l's presumption of nonindigency is rebutted with evidence that enforcement would impose a manifest hardship on the prisoner or his immediate family. . . .

* * *

In this case, the trial court did not err by imposing the fee for his courtappointed attorney without conducting an ability-to-pay analysi s. Further, it did not err by issuing the remittance order under MCL 769.1 l because defendant is presumed to be nonindigent if his prisoner account is only redu ced by 50 percent of the amount over $50. However, if he contests his ability to pay that amount, he may ask the trial court to ame nd or revoke the remittance order , at which point the trial court must decide whether defendant's claim of extraordin ary financial-5- circumstances rebuts the statuto ry presumption of his nonindige ncy. [ Jackson

, 483 Mich at 294-299 (emphasis added; footnotes omitted).]

Accordingly, the trial court here did not err by issuing the r emittance order under MCL 769.1 l , given that defendant is presumed to be nonindigent, and defen dant never petitioned the trial court to reduce or eliminate the amount that the remittan ce order requires him to pay. In light of defendant’s failure to contest the remittance order, w e have no ruling to review.

As a final matter, we note that at defendant’s sentencing hear ing, the trial c ourt imposed a minimum prison sentence of four years and ten months, which was the recommended minimum sentence set forth in the PSIR, but the judgment of sentence pr ovides that defendant was sentenced to a minimum of four years’ imprisonment. In their b riefs, both parties refer to defendant being sentenced to a minimum prison term of four year s and ten months. On remand, the judgment of sentence is to be corrected to show that defend ant’s minimum prison sentence is four years and ten months.

Affirmed and remanded for the ministerial task of correcting t he judgment of sentence so as to delete the provision ord ering defendant to pay a probatio n supervision fee and to change defendant’s minimum term of imprisonment to four years and ten months. We do not retain jurisdiction.

/s/ Jane E. Markey /s/ William B. Murphy /s/ Amy Ronayne Krause