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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Plaintiff-Appellee, UNPUBLISHED December 1, 2015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: M ETER , P.J., and B ORRELLO and B ECKERING , JJ.

P ER C URIAM

. A jury convicted defendant of two counts of assault of a priso n employee, MCL 750.197c(1), but acquitted him of two counts each of assault wi th intent to commit murder, MCL 750.83, and assault with intent to do great bodily harm less th an 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 convictio ns, but remand for further determinations regarding defendant’s sentences.

Defendant was convicted of physically assaulting two correctio nal 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. Th e prosecution alleged that defendant, an inmate at the facility, struck an officer, pushed another, and attempted to push both officers off the fourth floor ga llery walk. Defendant presente d several witnesses who admitted viewing the altercation, but denied seeing defendant attempt to push the officers off the gallery walk. The jury convicted defe ndant of both counts of assault o f a prison employee, but acquitted him of the remaining charges of a ssault with intent to commit m urder or assault w ith intent to do great bodily harm less than murder.

On appeal, defendant first argues that the offense of simple a ssault is a necessarily included lesser offense of assaul t of a prison employee and tha t the trial court erred by denying his request to instruct th e jury on simple assault.

Waiver constitutes the intentional abandonment of a known righ t. 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 i s not entirely clear-2- because multiple people were speaking at one time, it in fact a ppears 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 ass ault as a lesser offense of assault of a prison employee, 1 appellate review is limited to ascertaining whether plain erro r 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 pro per if the charged greater offense requires the jury to find a disputed factual element th at is not part of the lesser offense and the instruction is supporte d by a rational view of the evid ence. MCL 768.32(1); People v Reese , 466 Mich 440, 446; 647 NW2d 498 (2002). An offense is necess arily included if the elements of that offense are subsumed within the elements of th e greater offense. People v Wilder , 485 Mich 35, 41; 780 NW2d 265 (2010).

Defendant was convicted of violating MCL 750.197c(1), which in dicates that “[a] person lawfully imprisoned in a . . . place of confinement established by law for any term . . . who, without being discharged from t he place of confinement, . . . a ssaults 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. Therefo re, an assault is a necessarily included lesser offense of assault of a prison employee. Howev er, 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 cas e, the plaintiff was sexually ass aulted 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 unforesee able 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 c ase, the correctional officers were not charged with any criminal of fense, 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 office rs 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 o f confinement, or that defendant

1 Defendant was charged in the in formation with assault with int ent to commit murder, assault with intent to commit great bod ily harm less than murder, and a ssault of a prison employee. Defense counsel requested an instruction on simple assault as a lesser offense of assault with intent to murder and assault wi th intent to commit great bodily harm less than murder.-3- was not a prisoner, at the time of the assault. Accordingly, f ailure to instruct on simple assault as a lesser included offense of assault of a prison employee was n ot plain error. The trial court’s failure to instruct on that offe nse 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 shack les. 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 pe rsons 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 sufficien t 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 pri or convictions involving fleein g or resisting, that defendant was on trial for assaulting corrections officers, that the design o f the courthouse would allow defendant to disappear quickly if he manag ed to get out the doo r, 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 an d demonstrated that shackles were necessary to prevent defendant’s escape and to maintain or der in the courtroom. Accordingly, the trial court d id not abuse its discretion by de nying defendant’s request to remove the shackles. Moreover, because the facts on which the court r elied 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 prejudic ed 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 potenti al juror stated that the fact that defendant was shackled would make it difficult for him to be im partial, 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 tha t it should come as no surprise that some precautions would be taken for that reason. No other pros pective juror raised concerns about the fact that defendant was shackled. We conclude, in li ght of all the circumstances, that defendant has not demonstrated t hat he was prejudiced because t he jury viewed him in shackles.

Finally, defendant argues that t he trial court violated his Si xth Amendment right to a jury trial by relying on facts not found by the jury or admitted by defendant to increase the floor of-4- 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 rega rding 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 t hat 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 th e 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 sen tencing guidelines scheme violat es the Sixth Amendment because the guidelines allow a trial court to use fac ts found by a preponderance of the evidence to score the offense variables (OVs) and to increa se 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 senten ce within the guidelines range—if that range resulted from facts beyond those found by ajury 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 ran ge 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 de monstrate that his or her OV l evel was calculated using facts beyond th ose found by the jury or admitt ed by the defendant and that a corresponding reduction in the defendant’s OV score to account for the error would change the applicable guidelines mi nimum sentence range. If a defendant makes that threshold showing and was notsentenced to an upward departure sentence, he or s he is entitled to a remand fo r the trial court for that court to determine whether plain error occurred, i.e., whe ther the court would have imposed the same sentence absent the unconstitutional cons traint 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 defenda nt. [ Id . at ___; slip op at 36-37.]-5- 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 th e trial court’s scoring of OVs 3, 4, 12, and 19 was based on facts not found by the jury or admitted by defendant. Speci fically, the jury d id not find, nor did defendant admit, (1) that one of the correctional officers sustained a bodily injury requiring medical treatment to support th e 10-point score for OV 3, MCL 7 77.33(1)(d); (2) that one of the correctional officers sustained a psychological injury requirin g professional treatment to support the 10-point score for OV 4, MC L 777.34(1)(a); (3) that defenda nt 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) thatdefendant’s assaults threa tened 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 be en 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+ p oints), which, combined with defendant’s placement in PRV Level F, would reduce the guidelin es 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, defe ndant’s guidelines range w as 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 regar ding defendant’s sentences in accordance with the procedure outlined in Lockridge

, id . at ___; sli p op at 33-36.

We affirm defendant’s convictions, but remand for further dete rminations regarding defendant’s sentences in accordance with this opinion. We do n ot retain jurisdiction.

/s/ Patrick M. Meter /s/ Stephen L. Borrello

2 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 unpr eserved errors.”