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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAMES EDWARD HARDY, Defendant-Appellant.

UNPUBLISHED January 15, 1999

No. 189902 Midland Circuit Court LC No. 95-007535 FC

Before: Smolenski, P.J., and Saad and Gage, JJ. PER CURIAM. Defendant was convicted by a jury of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, felonious assault, MCL 750.82; MSA 28.277, breaking or attempting to escape from jail while awaiting examination or sentence on a felony, MCL 750.197(2); MSA 28.394(2), and malicious destruction of police property, MCL 750.377b; MSA 28.609(2). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12; MSA 28.1084, to concurrent terms of life imprisonment for the assault with intent to do great bodily harm less than murder conviction and five to fifteen years' imprisonment for the felonious assault, escape, and malicious destruction convictions. Defendant appeals as of right. We affirm. Defendant first argues that he was denied a fair trial because he was restrained with shackles and handcuffs during trial. We disagree. Because freedom from shackling is an important part of the right to a fair trial, the shackling of a defendant during trial is permitted only in extraordinary circumstances. People v Dixon, 217 Mich App 400, 404; 552 NW2d 663 (1996). Restraints should be permitted only to prevent escape, to protect bystanders or officers of the court from injury, or to maintain a quiet and peaceable trial. People v Dunn, 446 Mich 409, 426; 521 NW2d 255 (1994). There must be record evidence to support a trial court's decision to use restraints. Id. at 427. This Court reviews a decision to restrain a defendant for an abuse of discretion under the totality of the circumstances. Dixon, supra at 404-405. At the time of trial, defendant had a lengthy criminal record, including a prior conviction for escape, and he was facing a lengthy prison sentence in another case. Moreover, the instant case -1

involved an armed attack against two jail guards during an escape attempt from jail. Because defendant's history established that he was both a flight risk and a risk to the safety of the other occupants in the courtroom, the trial court did not abuse its discretion in requiring defendant to wear restraints while in the court room. Defendant next contends that the trial court deprived him of his right of allocution at sentencing by advising him that he should focus his comments on matters related to his potential sentence, rather than his factual guilt or innocence. We disagree. MCR 6.425(D)(2)(c) provides that the trial court must, before imposing sentence, give the defendant a reasonable opportunity to advise the court of any circumstances that the defendant believes the court should consider when imposing sentence. Failure to comply with this rule requires resentencing. People v Berry, 409 Mich 774, 779-781; 298 NW2d 434 (1980); People v Sean Jones (On Rehearing), 201 Mich App 449, 453; 506 NW2d 542 (1993). Our review of the record convinces us that the trial court complied with MCR 6.425(D)(2)(c) and provided defendant a full opportunity for allocution. The court's comments were intended only as a guideline for defendant to consider in tailoring his remarks. Notwithstanding the court's comments, defendant was permitted to say whatever he desired on the record before sentence was imposed. The right of allocution was not violated. Defendant next contends that his life sentence is so disproportionate as to constitute an abuse of discretion. We disagree. Defendant's reliance on the sentencing guidelines is misplaced because the guidelines do not apply to habitual offenders. People v McFall, 224 Mich App 403, 415; 569 NW2d 828 (1997). Defendant's sentence was statutorily authorized. See MCL 769.12(1)(a); MSA 28.1084(1)(a). The serious nature of the offenses and defendant's prior criminal history demonstrate that defendant has an inability to conform his conduct to the laws of society. People v Hansford (After Remand), 454 Mich 320, 326; 562 NW2d 460 (1997). Accordingly, we conclude that defendant's life sentence is proportional and does not constitute an abuse of sentencing discretion. Id. See also People v Crawford, ___ Mich App ___; ___ NW2d ___ (Docket No. 200722, issued 11/20/98), slip op p 6. Because defendant's life sentence is proportional, we likewise conclude that this sentence does not constitute cruel or unusual punishment. Const 1963, art 1,

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