People v. Davis, Docket No. 309525.
| Decision Date | 16 April 2013 |
| Docket Number | Docket No. 309525. |
| Parties | PEOPLE v. DAVIS. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Susan K. Mladenoff, Prosecuting Attorney, and Brandon S. Hultink, Assistant Prosecuting Attorney, for the people.
Law Offices of Suzanna Kostovski (by Suzanna Kostovski, Detroit) for defendant.
Before: M.J. KELLY, P.J., and CAVANAGH and MURRAY, JJ.
Defendant Stafano Adeesa Davis was convicted by a jury of voluntary manslaughter, MCL 750.321, and possession of a firearm during commission of a felony, MCL 750.227b. He was originally sentenced to 7 to 15 years' imprisonment for manslaughter, to be served consecutive to the felony-firearm sentence. After these convictions, defendant appealed, and we ultimately affirmed the convictions but remanded the case for reconsideration of the scoring of offense variable (OV) 13, MCL 777.43, and for correction of the presentence investigation report (PSIR). See People v. Davis, unpublished opinion per curiam of the Court of Appeals, issued November 29, 2011 (Docket No. 299343), p. 1, 2011 WL 5964584. Pursuant to this Court's remand order, the trial court determined that OV 13 did not apply, but then scored 15 points for OV 5, MCL 777.35. Defendant was resentenced to 78 months' to 15 years' imprisonment for the manslaughter conviction, with 787 days' credit. Defendant now appeals that judgment of sentence as of right, arguing that the trial court improperly scored OV 5 at resentencing. We affirm.
The underlying facts of this case were summarized by this Court in Davis, unpub. op. at 2–4, but they need not be recounted here because they are irrelevant to the issue on appeal. For our current purpose, what is important from this Court's prior decision is that we ultimately remanded the case “for reconsideration of the scoring of OV 13,” which would entail the trial court determining whether “the prosecution has established, by a preponderance of the evidence, that defendant committed a combination of three or more crimes against a person or property as is required under MCL 777. 43(1)(d)....” Id. at 8. We indicated that if OV 13 was properly scored, Id., citing People v. Chesebro, 206 Mich.App. 468, 474, 522 N.W.2d 677 (1994), overruled in part on other grounds People v. McGraw, 484 Mich. 120, 133 n. 42, 771 N.W.2d 655 (2009).
At the hearing held on remand, defendant and the prosecution both acknowledged that OV 13 was improperly scored, and the trial court agreed to resentence defendant. In doing so, the trial court requested the probation department to update the PSIR, indicating that it was primarily interested in how defendant had acted while in prison.
Before resentencing, the victim's biological mother submitted a victim's impact statement that had not been included with the original PSIR. The statement provided, in part:
My heart aches everyday for my son and the life that was taken away so brutally by [defendant]. My 2 grandsons has [sic] lost their father and my son has lost a brother. Demar will never get to see his boys grow up. The taking of my son's life sent me through a life changing event. I am more depressed than before, I had a nervous breakdown and I'm taking more medications now. I cry almost every day and I am so lost.
* * *
I had a nervous breakdown and my life is no longer happy. I am depressed I am a grandmother & father to my grandsons. I feel the lost [sic] of my child every day. I stay in my house more and I am so afraid for my son that I have left. I never expected for my son to die before me. [Defendant] you took my son['s] life. You don't deserve to live either.
Based on this statement the updated sentencing information report (SIR) indicated that an additional 15 points should be scored for OV 5, which scores serious psychological injury to a victim's family requiring professional treatment. MCL 777.35. Defendant objected to the scoring of OV 5. In doing so, defense counsel conceded that the prosecution was not estopped from filing an amended SIR, but nevertheless argued that as “a matter of fairness” the prosecution should not be able to have another OV scored to merely make up for the erroneously scored OV 13. Defendant also asserted that scoring 15 points for OV 5 was inappropriate because it was based on the alleged effect of his crime on the victim's birth mother, even though the victim had been adopted at a young age.
The trial court found that defendant's offense had been “a life-changing event” for the biological mother that caused her to have “[a] nervous breakdown,” which in turn resulted in her becoming “more depressed than before,” which then led her to take “more medications” and left her “cry[ing] almost every day.” The trial court noted:
As an adoptive mother [sic] she may not have been as closely involved in the victim's life as she would have been had the adoption not occurred, but the point of it is ... from what she says that there was some kind of close and continuing relationship, when she makes reference to the victim's death impacting her other son. It has impacted her grandsons. And by making that kind of reference to me it is reasonable to assume, [defense counsel], that there was a closer relationship than would have been logically inferred based upon your comments.
The trial court then determined that scoring 15 points for OV 5 was warranted.
In resentencing defendant, the trial court analyzed four factors: (1) punishment, which the trial court found to be inherent in his active prison sentence; (2) protection of society, where the trial court noted defendant's “history of assaultive conduct and weapons”; (3) rehabilitation, which although the trial court expressed some skepticism that defendant had changed in any meaningful way, it still “accept[ed] what your lawyer sa[id],” and (4) deterrence to others, where the trial court spoke of its desire to reduce gang violence, but “acknowledge[d] that [it] cannot,” eliminate such activity. The trial court weighed these factors and sentenced defendant within the guidelines to a term of 6 1/2 years' to 15 years' imprisonment, noting that “[t]his isn't much different than ... the first sentence—but it is a recognition that [defendant has] begun to do some positive things.” 1
Defendant's sole argument—which has two components—is that the trial court erred when scoring OV 5. “The interpretation and application of the legislative sentencing guidelines, MCL 777.1 et seq.[,] involve legal questions that this Court reviews de novo.” McGraw, 484 Mich. at 123, 771 N.W.2d 655. “To the extent that a challenge to the trial court's scoring of a variable involves a question of statutory interpretation, this Court reviews de novo questions of statutory interpretation.” People v. Ericksen, 288 Mich.App. 192, 202, 793 N.W.2d 120 (2010), citingPeople v. Osantowski, 481 Mich. 103, 107, 748 N.W.2d 799 (2008). People v. Lockett, 295 Mich.App. 165, 182, 814 N.W.2d 295 (2012), quoting People v. Hicks, 259 Mich.App. 518, 522, 675 N.W.2d 599 (2003) (quotation marks and citations omitted). An error in the calculation of the recommended minimum sentence range that increases the length of the defendant's sentence constitutes error requiring reversal. People v. Francisco, 474 Mich. 82, 88–91, 711 N.W.2d 44 (2006) ().
As an initial matter, defendant argues that the trial court had no authority to score OV5, as it was outside the scope of the remand from this Court. Although both parties base their arguments in part on federal law, specifically 28 USC 2106 and federal circuit court decisions interpreting it, reliance on this federal law is unnecessary as Michigan law adequately addresses the scope of a remand.
“When a case is remanded by an appellate court, proceedings on remand are limited to the scope of the remand order.” People v. Canter, 197 Mich.App. 550, 567, 496 N.W.2d 336 (1992), citing People v. Blue, 178 Mich.App. 537, 539, 444 N.W.2d 226 (1989). “[I]f an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same.” People v. Fisher, 449 Mich. 441, 444–445, 537 N.W.2d 577 (1995) (quotation marks and citation omitted). However:
The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court. Likewise, the doctrine of the law of the case has no application where a case is remanded without directions to the lower court; in such a case the lower court would enjoy the same power as if it made the ruling itself. [Id. at 446–447, 537 N.W.2d 577, citing Lyon v. Ingham County Circuit Judge, 37 Mich. 377 (1877), and Garwood v. Burton, 274 Mich. 219, 222, 264 N.W. 349 (1936) (quotation marks and citation omitted).]
As relevant to this case, once an original sentence is vacated, the case is placed in a presentence posture. People v. Rosenberg, 477 Mich. 1076, 729 N.W.2d 222 (2007); People v. Ezell, 446 Mich. 869, 522 N.W.2d 632 (1994). As a result, at resentencing, “every aspect of the sentence is before the judge de novo[.]” People v. Williams ...
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