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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

December 1, 2015 

v No. 322420 

Jackson Circuit Court 

WILLIAM CODY SCHAEFER, LC No. 12-004778-FC 

 Defendant-Appellant. 

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

PER CURIAM. 

 A jury convicted defendant of two counts of assault of a prison employee, MCL 

750.197c(1), but acquitted him of two counts each of assault with intent to commit murder, MCL 

750.83, and assault with intent to do great bodily harm less than murder, MCL 750.84. The trial 

court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to a prison term of 

76 to 240 months for each conviction, to be served concurrently with each other but 

consecutively to the sentence defendant was serving at the time he committed the offenses. 

Defendant appeals as of right. We affirm defendant’s convictions, but remand for further 

determinations regarding defendant’s sentences. 

 Defendant was convicted of physically assaulting two correctional officers in the housing 

unit in which defendant resided. The assault occurred when the officers were distributing 

commissary items to prisoners at the correctional facility. The prosecution alleged that 

defendant, an inmate at the facility, struck an officer, pushed another, and attempted to push both 

officers off the fourth floor gallery walk. Defendant presented several witnesses who admitted 

viewing the altercation, but denied seeing defendant attempt to push the officers off the gallery 

walk. The jury convicted defendant of both counts of assault of a prison employee, but acquitted 

him of the remaining charges of assault with intent to commit murder or assault with intent to do 

great bodily harm less than murder. 

 On appeal, defendant first argues that the offense of simple assault is a necessarily 

included lesser offense of assault of a prison employee and that the trial court erred by denying 

his request to instruct the jury on simple assault. 

 Waiver constitutes the intentional abandonment of a known right. People v Carter, 462 

Mich 206, 215; 612 NW2d 144 (2000). A party who waives a known right cannot seek appellate 

review of a claimed deprivation of the right. Id. Although the transcript is not entirely clear 
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because multiple people were speaking at one time, it in fact appears that defense counsel was 

affirmatively stating that the defense was not requesting the instruction on simple assault as a 

lesser offense for the charge of assault of a prison employee, thus waiving the present issue. At 

any rate, even if the issue was not waived, appellate relief is unwarranted. 

 Because defendant did not request an instruction on simple assault as a lesser offense of 

assault of a prison employee,1 appellate review is limited to ascertaining whether plain error 

occurred that affected defendant’s substantial rights. People v Young, 472 Mich 130, 135; 693 

NW2d 9801 (2005); People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). 

 An instruction on a necessarily included lesser offense is proper if the charged greater 

offense requires the jury to find a disputed factual element that is not part of the lesser offense 

and the instruction is supported by a rational view of the evidence. MCL 768.32(1); People v 

Reese, 466 Mich 440, 446; 647 NW2d 498 (2002). An offense is necessarily included if the 

elements of that offense are subsumed within the elements of the greater offense. People v 

Wilder, 485 Mich 35, 41; 780 NW2d 265 (2010). 

 Defendant was convicted of violating MCL 750.197c(1), which indicates that “[a] person 

lawfully imprisoned in a . . . place of confinement established by law for any term . . . who, 

without being discharged from the place of confinement, . . . assaults an employee of the place of 

confinement . . . knowing the person to be an employee . . . is guilty of a felony . . . .” The 

statute requires an assault, plus additional elements. Therefore, an assault is a necessarily 

included lesser offense of assault of a prison employee. However, to be entitled to a lesser 

offense instruction, the lesser offense must also be supported by a rational view of the evidence. 

 Defendant relies on Hamed v Wayne Co, 490 Mich 1; 803 NW2d 237 (2011), as support 

for his argument. In that case, the plaintiff was sexually assaulted by a sheriff’s deputy when she 

was incarcerated in the Wayne County Jail. Id. at 6. The Hamed Court held that the defendants 

could not be found vicariously liable for the assault because the deputy was acting outside the 

scope of his employment when the deputy committed the unforeseeable criminal act. Id. at 11, 

36. Defendant’s reliance on Hamad is misplaced. That case concerned a claim under the Civil 

Rights Act, MCL 37.2101 et seq., involving a criminal act by the sheriff’s deputy. In this case, 

the correctional officers were not charged with any criminal offense, and no evidence supported 

a finding that the officers were not acting within the scope of their employment when the 

incident occurred. Defendant did not dispute that the officers were employed as corrections 

officers at a place of confinement or that he was imprisoned at the facility, and the undisputed 

evidence indicated that defendant’s altercation with the officers occurred as they were 

distributing commissary items to prisoners during the course of their employment. No rational 

view of the evidence would have permitted the jury to find that defendant committed an assault 

against the officers while they were not employees at a place of confinement, or that defendant 

 

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 Defendant was charged in the information with assault with intent to commit murder, assault 

with intent to commit great bodily harm less than murder, and assault of a prison employee. 

Defense counsel requested an instruction on simple assault as a lesser offense of assault with 

intent to murder and assault with intent to commit great bodily harm less than murder. 
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was not a prisoner, at the time of the assault. Accordingly, failure to instruct on simple assault as 

a lesser included offense of assault of a prison employee was not plain error. The trial court’s 

failure to instruct on that offense did not deny defendant due process. See Scott v Elo, 302 F3d 

598, 606 (CA 6, 2002). 

 Next, defendant argues that the trial court erred by requiring him to appear before the jury 

while shackled to the courtroom floor. We review for an abuse of discretion a trial court’s 

decision to grant or deny a defendant’s request to remove shackles. People v Dixon, 217 Mich 

App 400, 404-405; 552 NW2d 663 (1996). 

 Absent extraordinary circumstances, a defendant has a right to be free of shackles or 

handcuffs in the courtroom as an element of the right to a fair trial. People v Payne, 285 Mich 

App 181, 186; 774 NW2d 714 (2009). Shackles are permitted “on a finding supported by record 

evidence that this is necessary to prevent escape, injury to persons in the courtroom or to 

maintain order.” People v Dunn, 446 Mich 409, 425; 521 NW2d 255 (1994). 

 Defendant argues that the trial court failed to make sufficient particularized findings to 

support its decision to require him to remain in shackles. See United States v Miller, 531 F3d 

340, 345 (CA 6, 2008). Defendant asserts that the trial court should have held a hearing to 

gather evidence on which to base its decision. See, e.g., Kennedy v Cardwell, 487 F2d 101, 107, 

110 (CA 6, 1973). We disagree. 

 The trial court based its decision to deny defendant’s request to remove the shackles on 

the facts that defendant had prior convictions involving fleeing or resisting, that defendant was 

on trial for assaulting corrections officers, that the design of the courthouse would allow 

defendant to disappear quickly if he managed to get out the door, and that defendant was wearing 

street clothes and would be able to blend in easily with other persons if he managed to leave the 

courtroom. These findings were specific to defendant’s case and demonstrated that shackles 

were necessary to prevent defendant’s escape and to maintain order in the courtroom. 

Accordingly, the trial court did not abuse its discretion by denying defendant’s request to remove 

the shackles. Moreover, because the facts on which the court relied were already a matter of 

record, the trial court was not required to hold an evidentiary hearing. 

 Further, a defendant who seeks relief from a conviction based on the fact that the jury 

viewed him in shackles is required to show that he was prejudiced as a result. People v Horn, 

279 Mich App 31, 37; 755 NW2d 212 (2008). The record discloses that the jury pool was aware 

that defendant was shackled to the floor. Although one potential juror stated that the fact that 

defendant was shackled would make it difficult for him to be impartial, that juror was dismissed 

for cause. Immediately thereafter, the trial court advised the jurors that the offense from which 

the charges arose took place in a correctional facility and that it should come as no surprise that 

some precautions would be taken for that reason. No other prospective juror raised concerns 

about the fact that defendant was shackled. We conclude, in light of all the circumstances, that 

defendant has not demonstrated that he was prejudiced because the jury viewed him in shackles. 

 Finally, defendant argues that the trial court violated his Sixth Amendment right to a jury 

trial by relying on facts not found by the jury or admitted by defendant to increase the floor of 
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the sentencing guidelines, contrary to Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L 

Ed 2d 314 (2013). We agree and remand for further inquiry regarding defendant’s sentences. 

 In Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the 

United States Supreme Court held that the Sixth and Fourteenth Amendments to the United 

States Constitution prohibit the increase of a maximum sentence based on judicial fact-finding. 

The Apprendi Court held that “[o]ther than the fact of a prior conviction, any fact that increases 

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, 

and proved beyond a reasonable doubt.” Id. In Alleyne, the Supreme Court extended the 

Apprendi rule to mandatory minimum sentences; the Alleyne Court held that facts that increase a 

mandatory minimum sentence must be found by a jury. Alleyne, 133 S Ct at 2163. 

 In People v Lockridge, 498 Mich 358; ___ NW2d ___ (2015) (Docket No. 149073), cert 

pending, the Michigan Supreme Court extended Alleyne to Michigan’s sentencing scheme. The 

Lockridge Court held that Michigan’s sentencing guidelines scheme violates the Sixth 

Amendment because the guidelines allow a trial court to use facts found by a preponderance of 

the evidence to score the offense variables (OVs) and to increase the bottom (i.e., the floor) of 

the sentencing guidelines range. See id. at ___; slip op at 11. The Lockridge Court struck down 

the mandate in MCL 769.34(2)—that a trial court impose a sentence within the guidelines 

range—if that range resulted from facts beyond those found by a jury beyond a reasonable doubt 

or admitted by the defendant. Lockridge, 498 Mich at ___; slip op at 29. The Lockridge Court 

also struck down the requirement in MCL 769.34(3) that a trial court articulate substantial and 

compelling reasons if it departs from the guidelines. Lockridge, 498 Mich at ___; slip op at 2. 

Trial courts must still determine the applicable guidelines range and take that range into account 

when imposing sentence. Id. A range calculated in violation of Alleyne is advisory only. Id. 

The Lockridge Court concluded: 

 To make a threshold showing of plain error that could require 

resentencing, a defendant must demonstrate that his or her OV level was 

calculated using facts beyond those found by the jury or admitted by the 

defendant and that a corresponding reduction in the defendant’s OV score to 

account for the error would change the applicable guidelines minimum sentence 

range. If a defendant makes that threshold showing and was not sentenced to an 

upward departure sentence, he or she is entitled to a remand for the trial court for 

that court to determine whether plain error occurred, i.e., whether the court would 

have imposed the same sentence absent the unconstitutional constraint on its 

discretion. If the trial court determines that it would not have imposed the same 

sentence but for the constraint, it must resentence the defendant. [Id. at ___; slip 

op at 36-37.] 
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This procedure was modeled on the procedure adopted in United States v Crosby, 397 F3d 103 

(CA 2, 2005). See Lockridge, 498 Mich at ___; slip op at 33.2

 

 We agree with defendant that the trial court’s scoring of OVs 3, 4, 12, and 19 was based 

on facts not found by the jury or admitted by defendant. Specifically, the jury did not find, nor 

did defendant admit, (1) that one of the correctional officers sustained a bodily injury requiring 

medical treatment to support the 10-point score for OV 3, MCL 777.33(1)(d); (2) that one of the 

correctional officers sustained a psychological injury requiring professional treatment to support 

the 10-point score for OV 4, MCL 777.34(1)(a); (3) that defendant committed three or more 

contemporaneous and felonious criminal acts against a person to support the 25-point score for 

OV 12, MCL 777.42(1)(a); or (4) that defendant’s assaults threatened the security of a penal 

institution to support the 25-point score for OV 19, MCL 777.49(a). 

 Further, the 70 points attributable to the scoring of OVs 3, 4, 12, and 19 affect 

defendant’s placement in the cell of the sentencing grid under which he was sentenced. Had 

those variables not been scored, defendant’s OV score would be reduced to 10 points, placing 

him in OV Level II (10-24 points) instead of OV Level VI (75+ points), which, combined with 

defendant’s placement in PRV Level F, would reduce the guidelines range from 24 to 76 months 

to 12 to 48 months, as enhanced for defendant’s fourth-offense habitual offender status. MCL 

777.66; MCL 777.21(3)(c). Thus, defendant’s guidelines range was unconstitutionally 

constrained by a violation of the Sixth Amendment. Lockridge, 498 Mich at ___; slip op at 32. 

Therefore, we remand this case for further determinations regarding defendant’s sentences in 

accordance with the procedure outlined in Lockridge, id. at ___; slip op at 33-36. 

 We affirm defendant’s convictions, but remand for further determinations regarding 

defendant’s sentences in accordance with this opinion. We do not retain jurisdiction. 

/s/ Patrick M. Meter 

/s/ Stephen L. Borrello 

 

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 Although the Lockridge Court adopted this procedure in the context of addressing an 

unpreserved claim of error, this Court recently held in People v Stokes, ___ Mich App ___; ___ 

NW2d ___ (2015) (Docket No. 321303); slip op at 11, that the Crosby remand procedure applies 

“to both preserved and unpreserved errors.”