People v. Calloway, 153636

• Decision Date: 19 May 2017
• Docket Number: No. 153636, No. 153751,153636
• Citation: 895 N.W.2d 165
• Parties: PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Tiwaun Maurice CALLOWAY, Defendant–Appellant. People of the State of Michigan, Plaintiff–Appellant, v. Tiwaun Maurice Calloway, Defendant–Appellee.
• Court: Michigan Supreme Court

895 N.W.2d 165

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Tiwaun Maurice CALLOWAY, Defendant–Appellant.

People of the State of Michigan, Plaintiff–Appellant,

v.Tiwaun Maurice Calloway, Defendant–Appellee.

No. 153636

No. 153751

Supreme Court of Michigan.

Decided May 19, 2017

OPINION

Per Curiam.

At issue in this case is whether the trial court properly assessed 15 points for Offense Variable 5 (OV 5).¹ This question turns on whether the proofs were sufficient to establish that a "[s]erious psychological injury requiring professional treatment occurred to a victim's family."² We hold that 15 points may be assessed for OV 5 even absent proof that a victim's family member has sought or received, or intends to seek or receive, professional treatment. In particular, OV 5 may also be scored when a victim's family member has suffered a serious psychological injury that may require professional treatment in the future, regardless of whether the victim's family member presently intends to seek treatment. Because there was adequate proof of such an injury in this case, we reverse the Court of Appeals' ruling that the trial court erred by assessing 15 points for OV 5.

I. FACTS AND PROCEDURAL HISTORY

Defendant, Tiwaun Calloway, and his friend Damian Jones were searching for the man they believed stole a cell phone from Jones's girlfriend. Defendant drove to Jones's residence, where Jones retrieved an AK–47 rifle. They later confronted the suspected thief. As the man tried to run away, Jones opened fire, killing him. Defendant then drove Jones away from the scene. Defendant was convicted of second-degree murder³ on an aiding and abetting theory and was sentenced to 20 to 50 years in prison.

At sentencing, the trial court scored OV 5 at 15 points. The Court of Appeals summarized the evidence supporting this score as follows:

The presentence investigation report (PSIR) reflects that the victim's stepfather was interviewed. He stated that the victim's mother was "having a very hard time dealing with this situation," and explained that the "incident has had a tremendous, traumatic effect on him and his family." He explained that the incident "will change them for the rest of their lives." The victim's stepfather expressed similar thoughts when he made a statement at sentencing.^{[4 ]}

However, the Court of Appeals concluded that OV 5 should have been scored at zero points because

there is no evidence indicating that any member of the victim's family intended to receive professional treatment in relation to the incident or required professional treatment because of the incident. See People v. Portellos , 298 Mich.App. 431, 449, 827 N.W.2d 725 (2012) (affirming the trial court's refusal to assess points for OV 5 when there was no evidence that members of the victim's family intended to receive treatment).^{[5 ]}

The prosecution now seeks leave to appeal in this Court from the Court of Appeals' holding that OV 5 was misscored.⁶

II. STANDARD OF REVIEW

A trial court's factual determinations must be supported by a preponderance of the evidence and are reviewed for clear error.⁷ "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo."⁸

In interpreting statutes, "our goal is to give effect to the Legislature's intent, focusing first on the statute's plain language."⁹ In doing so, "we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme. When a statute's language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written."¹⁰

III. ANALYSIS

OV 5 is scored when a homicide or homicide-related crime¹¹ causes psychological injury to a member of a victim's family. MCL 777.35, which governs OV 5, provides as follows:

(1) Offense variable 5 is psychological injury to a member of a victim's family. Score offense variable 5 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) Serious psychological injury requiring professional treatment occurred to a victim's family .......................................................... 15 points

(b) No serious psychological injury requiring professional treatment occurred to a victim's family ............................................................ 0 points

(2) Score 15 points if the serious psychological injury to the victim's family may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive.

Therefore, a trial court properly assesses 15 points for OV 5 when "[s]erious psychological injury requiring professional treatment occurred to a victim's family."¹² However, the very next subsection of the statute provides that 15 points should be assessed "if the serious psychological injury to the victim's family may require professional treatment," and that "[i]n making this determination, the fact that treatment has not been sought is not conclusive."¹³

At first blush, the second subsection of MCL 777.35 appears to contradict the first concerning whether professional treatment is required for points to be assessed. However, the more specific second subsection is clearly intended as a further explication of the circumstances justifying a 15–point score. "[W]e examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme."¹⁴ In addition, when a statute contains a general provision and a specific provision, the specific provision controls.¹⁵ While MCL 777.35(1)(a) requires the injury to be one "requiring professional treatment," the statute does not require proof that a victim's family member has already sought or received, or intends to seek or receive, professional treatment. The second subsection makes this clear by stating that "the fact that treatment has not been sought is not conclusive," and by specifying that a 15–point score is appropriate if the injury "may require professional treatment."¹⁶

Although this threshold may seem low, trial courts must bear in mind that OV 5 requires a "serious psychological injury." In this context, "serious" is defined as "having important or dangerous possible consequences."¹⁷ Thus, in scoring OV 5, a trial court should consider the severity of the injury and the consequences that flow from it, including how the injury has manifested itself before sentencing and is likely to do so in the future, and whether professional treatment has been sought or received. However, even when professional treatment has not yet been sought or received, points are properly assessed for OV 5 when a victim's family member has suffered a serious psychological injury that may require professional treatment in the future.¹⁸

We disagree with the Court of Appeals to the extent that it held that in order to properly assess points for OV 5 in the absence of evidence that a victim's family member sought or received treatment, there must at least be evidence that a victim's family member had a present intention to seek or receive professional treatment. The Court of Appeals' holding on this point is not entirely clear because, after reviewing some of the statements by the victim's stepfather, the Court simply concluded its analysis by stating that "there is no evidence indicating that any member of the victim's family intended to receive professional treatment in relation to the incident or required professional treatment because of the incident."¹⁹

Portellos , the case the Court of Appeals cited in its OV 5 analysis, is equally opaque. There, to support its conclusion that OV 5 was properly scored at zero, the Court of Appeals stated as follows:

Though [the victim's grandmother] expressed her emotional response to the [victim's] death, she did not state that she intended to receive treatment. Nor did [the victim's father] state that he intended to receive treatment. [The victim's grandmother] only stated that she hoped that [the defendant] would be able to receive treatment while in prison.^{[20 ]}

However, the Court of Appeals did not discuss any details regarding the victim's grandmother's "emotional response to the [victim's] death," or consider the letter she submitted "that spoke about her disbelief, grief, anger, and heartbreak at the loss of [the victim]."²¹ As noted above, OV 5 is not limited to situations in which a victim's family member has already sought or received treatment, or expressed an intention to do so. Points are also properly assessed when the serious psychological injury may require professional treatment in the future, regardless of whether the victim's family member presently intends to seek treatment. We overrule Portellos to the extent it stated or implied otherwise.²²

IV. APPLICATION

Applying the plain language of MCL 777.35 to the facts of this case, the statements by the victim's stepfather in the presentence investigation report and at the sentencing hearing demonstrate that the victim's family members suffered serious psychological injuries that may require professional treatment in the future.

In the presentence investigation report, the victim's stepfather stated that the victim's mother "is having a very hard time dealing with this situation." He indicated that he met and married the victim's mother when the victim was approximately four months old. He stated that "this incident has had a tremendous, traumatic effect on him and his family." He indicated that the victim had just become a father four months earlier, and that the incident "will change them for the rest of their lives."

The victim's stepfather also addressed the trial court at sentencing, stating that "my family feels horrible about this incident," and that defendant "[does not] understand what he...