                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 16, 2014
                Plaintiff-Appellee,

v                                                                    No. 316583
                                                                     Wayne Circuit Court
WILLIAM ANTHONY CRUMP,                                               LC No. 11-012644-FH

                Defendant-Appellant.


Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of three counts of third-degree
criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim at least 13 years of age and
under 16 years of age), three counts of fourth-degree criminal sexual conduct (CSC-IV), MCL
750.520e(1)(a) (victim at least 13 years of age but less than 16 years of age and actor more than
five years older than victim), and one count of accosting a child for an immoral purpose, MCL
750.145a. Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to concurrent
sentences of 25 to 42 years’ imprisonment for the CSC-III convictions, one to two years’
imprisonment for the CSC-IV convictions, and 2 to 15 years’ imprisonment for the accosting a
child for immoral purposes conviction. We affirm.

        Defendant first argues that that the trial court erred when it denied defendant’s motion for
a new trial because defendant’s trial counsel was ineffective in that he failed to inform defendant
of the prosecution’s final plea offer. As such, the trial court should have allowed defendant to
accept the previously offered plea deal. We disagree.

       This Court reviews a trial court’s decision to deny a defendant’s motion for a new trial
for an abuse of discretion. People v Russell, 297 Mich App 707, 715; 825 NW2d 623 (2012).
This Court reviews “the trial court’s findings of fact at a Ginther[1] hearing for clear error, and
review[s] questions of constitutional law de novo.” Id. (citation omitted). “Clear error exists
when the reviewing court is left with a definite and firm conviction that a mistake was made.”
 People v McDade, 301 Mich App 343, 356; 836 NW2d 266 (2013). In the application of this


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


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principle, this Court must give due regard “to the special opportunity of the trial court to judge
the credibility of the witnesses who appeared before it.” People v Dendel, 481 Mich 114, 130;
748 NW2d 859 (2008), amended 481 Mich 1201 (2008), quoting MCR 2.613(C).

        A defendant has the right to the effective assistance of counsel during plea negotiations.
People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). A defendant must show “(1)
that counsel’s representation fell below an objective standard of reasonableness, and (2) that
there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. (internal quotation marks and citation omitted).
“[D]efense counsel has the duty to communicate formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the accused,” and defense counsel does not
provide effective assistance if he or she does not communicate a formal plea offer to the
defendant. Missouri v Frye, 566 US ___; 132 S Ct 1399, 1408; 182 L Ed 2d 379, 384 (2012).
A defendant must also show:

       [T]hat but for the ineffective advice of counsel [1] there is a reasonable
       probability that 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] that the court would have
       accepted its terms, and [3] that 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 ___; 132 S Ct 1376, 1385; 182 L Ed 2d 398, 407 (2012) (internal
       quotation marks omitted).]

        After defendant’s trial, defendant filed a motion for reversal of his convictions and for
entry of a plea-based conviction, or for a Ginther hearing and a new trial. Defendant argued that
he was not aware of the final plea offered by the prosecution until he received his trial attorney,
Robert Slameka’s, response to a grievance filed by defendant. A Ginther hearing was held, and
the trial court ultimately denied defendant’s motion. The trial court found that Slameka
informed defendant of the final plea offer. The offer was for one to two years’ imprisonment for
attempted accosting and soliciting of a minor. Defendant rejected the offer because he wanted an
offer that included only one year in the Wayne County Jail. Testimony presented at the hearing
supported the trial court’s findings. Several witnesses, including Slameka, defendant’s former
attorney Larry Polk, and the prosecutor Kevin Clark, among others, testified that defendant
refused the final offer because he only wanted to serve time in jail (a maximum of less than two
years), or “county time.” Accordingly, the trial court did not clearly err in denying defendant’s
requests.

       Defendant’s primary complaint on appeal is that the trial court erroneously accepted the
testimony of Slameka, Clark, Polk, and other witnesses presented by the prosecution as opposed
to defendant’s testimony and evidence. According to defendant, the testimony presented by the
prosecution at the Ginther hearing was inconsistent. However, all of the witnesses at the Ginther
hearing, other than defendant, testified that Slameka informed defendant of the final plea offer
and defendant rejected the offer because he wanted a sentence of one year of “county time.” The
testimony was only inconsistent with regard to when defendant learned of the final plea offer.
This Court defers to the trial court on matters of witness credibility because the trial court has the

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ability to observe the witnesses. Dendel, 481 Mich at 130; MCR 2.613(C). Moreover, while
defendant presented evidence that he claimed contradicted the prosecution’s evidence, we are not
convinced. Defendant presented evidence that on August 30, 2012, he submitted a telephone
request to Tameka Lacy, asking that she contact Slameka. “Tell him that if I was offered 1 to 2
yrs [sic] I want to accept that plea before trial. Tell her to ask him why wouldn’t [sic] he tell me
this info.” Defendant asserts that his telephone call request would “make no sense” if defense
counsel had informed him of the final plea offer. However, defendant may have forgotten that
Slameka informed him of the plea offer or defendant could have changed his mind seeing as it
had been over a week since August 16, 2012, the date when the prosecutor stated he made the
final plea offer. Therefore, defendant’s telephone call request is not entirely inconsistent with
Slameka’s testimony. Defendant also points out that he consistently attempted to accept the final
plea offer after receiving defense counsel’s response letter to the grievance defendant filed.
However, defendant’s attempts to accept the offer occurred after the prosecution was able to
obtain the testimony of key witnesses, and, thus, the offer was no longer available. For these
reasons, we are not left with a definite and firm conviction that the trial court committed clear
error in its finding of facts. McDade, 301 Mich App at 356.

        Even assuming the trial court did err, defendant did not show prejudice. See Douglas,
496 Mich at 592. While defendant may have shown a reasonable probability that he would have
accepted the plea offer2 and that the conviction and sentence would have been less severe had he
accepted the plea, he cannot show a reasonable probability that the trial court would have
accepted the final plea offer. Id. Judge Callahan, the trial judge, noted at the Ginther hearing
that he does not accept a plea agreement after the final conference, which took place in this case
on February 24, 2012, and the final plea offer was made on August 16, 2012. Moreover, even
assuming the prosecution offered the final plea agreement while Judge Hathaway, who presided
over the pretrial proceedings, was on the case, defendant does not argue that Judge Hathaway
would have accepted the terms of the final plea offer. Therefore, defendant fails to show
prejudice and is not entitled to relief on this ground.

      Defendant next argues that the trial court erred in having and leaving defendant
handcuffed at trial. We disagree.

       This Court reviews a preserved claim regarding the trial court’s decision to leave a
defendant in handcuffs during trial “for an abuse of discretion under the totality of the
circumstances.” People v Payne, 285 Mich App 181, 186; 774 NW2d 714 (2009). However,
because defendant did not raise the issue in the trial court, this Court reviews the unpreserved,
nonstructural constitutional error for plain error affecting defendant’s substantial rights. People




2
  We note that it is questionable whether defendant established by a reasonable probability that
he would have accepted the final plea offer. While defendant testified that he would have
accepted the plea, other witnesses testified and the trial court found that defendant rejected the
plea. Defendant did show that he would have accepted the plea on August 30, 2012; however,
the plea was no longer available at that time because the prosecution had located key witnesses.


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v Carines, 460 Mich 750, 763-765; 597 NW2d 130 (1999); People v Metamora Water Serv, Inc,
276 Mich App 376, 382; 741 NW2d 61 (2007).

        “Included within the right to a fair trial, absent extraordinary circumstances, is the right to
be free of shackles or handcuffs in the courtroom.” Payne, 285 Mich App at 186. A trial court
may order that a defendant remain handcuffed during trial to “prevent escape, injury to persons
in the courtroom or to maintain order.” Id. (citation omitted). The phrase “maintain order”
refers to the trial court’s ability to “maintain a quiet and peaceable trial.” See People v Dunn,
446 Mich 409, 426; 521 NW2d 255 (1994) (citation omitted). Even if a trial court abuses its
discretion in requiring a defendant to wear restraints, the defendant must also show that he was
prejudiced to be entitled to relief. Payne, 285 Mich App at 186. A defendant is not prejudiced if
the jury could not see the restraints. Id.; see also Dunn, 446 Mich at 411 (holding that where the
record did not show that the jury could see the defendant’s restraints, there was no basis to find
that the defendant was denied a fair trial).

       The trial occurred on September 19, 2012, and September 20, 2012. Before the jury was
brought into the courtroom, the trial court noted that defendant was in handcuffs because he was
“being mouthy and giving the deputies trouble.” The jury was then brought into the courtroom.
Defendant claims that the trial court abused its discretion in requiring defendant to wear
handcuffs. However, the trial court indicated that defendant was causing trouble for the deputies
and was “being mouthy.” The trial court directed the court reporter to note the issue on the
record, which indicates that defendant’s actions toward the deputies were the reason he was
handcuffed. The trial court sufficiently established that handcuffs were necessary to maintain
peace and quiet in the courtroom since defendant may have continued to interfere with the
deputies’ duties and interrupt trial. See Payne, 285 Mich App at 186.

        Even assuming the trial court abused its discretion, defendant does not show that he was
prejudiced. There was no evidence that the jury witnessed the handcuffs. A defendant has the
burden to show that the handcuffs were visible to the jury. See Dunn, 446 Mich at 411; Payne,
285 Mich App at 186. Defendant notes that he was required to stand when the jury entered and
exited the courtroom and that the jury could have observed his handcuffs at that time. However,
the prosecution does not stipulate to the fact that the handcuffs were visible. The record also
does not indicate whether the jury passed defendant while it was entering and exiting the
courtroom or whether the handcuffs were visible to the jury. Defendant’s assertion is
speculative, at best, particularly in light of the fact that his trial attorney did not object.
Furthermore, even if the jury may have inadvertently seen the handcuffs, defendant did not
question the jurors regarding whether they had observed defendant in handcuffs. See People v
Horn, 279 Mich App 31, 37; 755 NW2d 212 (2008). Therefore, defendant fails to show
prejudice because there is no indication in the record that any member of the jury observed
defendant in handcuffs. See Dunn, 446 Mich at 411; Payne, 285 Mich App at 186; Horn, 279
Mich App at 37.

        We further reject defendant’s assertion that Slameka was ineffective because he failed to
object to the trial court’s decision to leave defendant handcuffed during trial. First, we note that
a Ginther hearing was held in this matter, and defendant did not raise this issue at the hearing.
Therefore, this issue is unpreserved. People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008). This Court reviews an unpreserved claim of ineffective assistance of counsel for

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“mistakes apparent on the record.” Id. at 410. The trial court did not err in deciding to have
defendant remain in handcuffs during the trial, discussed supra. Thus, Slameka’s objection to
the trial court’s decision would have been meritless, and defense counsel is not ineffective for
failure to advocate a meritless position. See Payne, 285 Mich App at 191. Finally, the record
does not show that the jury observed the handcuffs. See id. (holding that the defense counsel
was not ineffective for failing to object to the defendant wearing leg shackles during trial
because the defendant failed to show that the jury observed the shackles). Thus, defendant’s
claim lacks merit.

       Affirmed.

                                                           /s/ Pat M. Donofrio
                                                           /s/ Karen M. Fort Hood
                                                           /s/ Douglas B. Shapiro




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