People v. Francisco

Decision Date23 March 2006
Docket NumberDocket No. 129035.
Citation474 Mich. 82,711 N.W.2d 44
PartiesPEOPLE of the State of MICHIGAN, Plaintiff-Appellee, v. Charles Wayne FRANCISCO, Defendant-Appellant.
CourtMichigan Supreme Court

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce

F. Todd, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, Pontiac, for the people.

State Appellate Defender (by Jacqueline J. McCann and Anne Yantus), Detroit, for the defendant.

MARKMAN, J.

At issue is whether the trial court erred in scoring offense variable 13 (OV 13) and, if so, whether defendant is entitled to be resentenced. Because we conclude that the trial court did err in scoring OV 13, and because this error affected the statutory sentencing guidelines range, we remand to the trial court for resentencing.

I. FACTS AND PROCEDURAL HISTORY

Following a jury trial, defendant was convicted of first-degree home invasion, MCL 750.110a(2).1 At the sentencing hearing, defendant unsuccessfully challenged the scoring of points under offense variables 9 and 13. The statutory sentencing guidelines, as scored by the trial court, called for a minimum sentence range of 87 to 217 months, and defendant was sentenced to 102 to 480 months as a third-offense habitual offender. Defendant filed an appeal as of right. The Court of Appeals affirmed, unpublished opinion per curiam, issued May 26, 2005 (Docket No. 252188), and defendant applied for leave to appeal in this Court. After directing the parties to address certain issues,2 we heard oral argument on whether to grant the application or take other peremptory action permitted by MCR 7.302(G)(1).3

II. STANDARD OF REVIEW

The issues in this case concern the proper interpretation and application of the statutory sentencing guidelines, MCL 777.11 et seq., which are both legal questions that this Court reviews de novo. People v. Morson, 471 Mich. 248, 255, 685 N.W.2d 203 (2004).

III. ANALYSIS
A. OV 13

Defendant argues that the trial court erred in scoring OV 13 at 25 points. Twenty-five points are to be scored under OV 13 where "[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person." MCL 777.43(1)(b) (emphasis added). "[A]ll crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction." MCL 777.43(2)(a). In the instant case, although the sentencing offense took place in 2003, the trial court relied on three felonies that occurred in 1986 to score OV 13 at 25 points.

In People v. McDaniel, 256 Mich.App. 165, 172, 662 N.W.2d 101 (2003),4 the Court

of Appeals held that "any five-year period may be utilized," observing:

The statute clearly refers to "a 5-year period." The use of the indefinite article "a" reflects that no particular period is referred to in the statute. Had the Legislature intended the meaning defendant assumes, the statute would refer to "the 5-year period immediately preceding the sentencing offense." Instead, the phrase "including the sentencing offense" modifies "all crimes." That is, the sentencing offense may be counted as one of the three crimes in a five-year period. That does not, however, preclude consideration of a five-year period that does not include the sentencing offense. [Id. at 172-173, 662 N.W.2d 101 (emphasis in the original).]

The McDaniel dissent, on the other hand, concluded that only a five-year period that includes the sentencing offense can be considered, explaining:

The language at issue states that "all crimes within a 5-year period, including the sentencing offense, shall be counted." MCL 777.43(2)(a) (emphasis added). Because the word "shall" is used, I find it is impossible for any five-year period that does not include the sentencing offense to be considered. Contrary to the majority's interpretation of the statute, my reading of the statutory language clearly precludes consideration of a five-year period that does not include the sentencing offense. [Id. at 174, 662 N.W.2d 101 (Donofrio, J., dissenting).]

We agree with the Court of Appeals dissent that only those crimes committed during a five-year period that encompasses the sentencing offense can be considered.

MCL 777.43(1)(b) states that the sentencing offense must be "part of a pattern of felonious criminal activity involving 3 or more crimes against a person." (Emphasis added.) MCL 777.43(2)(a) defines a "pattern" as three or more crimes committed "within a five-year period, including the sentencing offense . . . ." (Emphasis added.) Therefore, in order for the sentencing offense to constitute a part of the pattern, it must be encompassed by the same five-year period as the other crimes constituting the pattern.

The Court of Appeals majority in McDaniel, supra at 172, 662 N.W.2d 101, concluded that because MCL 777.43(2)(a) refers to "a 5-year period," rather than "the 5-year period," "any 5-year period may be utilized." However, MCL 777.43(2)(a) does not just refer to "a 5-year period"; instead, it refers to "a 5-year period, including the sentencing offense. . . ." (Emphasis added.) It is a long-accepted principle of statutory construction that the court must construe a statute so as to give full effect to all its provisions. Drouillard v. Stroh Brewery Co., 449 Mich. 293, 302, 536 N.W.2d 530 (1995). The Court of Appeals erred in not considering the language of MCL 777.43(2)(a), above, which specifies that the five-year period must include the sentencing offense.

The Court of Appeals concluded that "the sentencing offense may be counted as one of the three crimes in a five-year period. That does not, however, preclude consideration of a five-year period that does not include the sentencing offense." McDaniel, supra at 172-173, 662 N.W.2d 101. However, MCL 777.43(2)(a) specifically states that "all crimes within a 5-year period, including the sentencing offense, shall be counted . . . ." (Emphasis added.) "Shall" is a mandatory term, not a permissive one. Burton v. Reed City Hosp. Corp., 471 Mich. 745, 752, 691 N.W.2d 424 (2005). Because MCL 777.43(2)(a) states that the sentencing offense "shall" be included in the five-year period, the sentencing offense must be included in the five-year period. Therefore, MCL 777.43(2)(a) does preclude consideration of a five-year period that does not include the sentencing offense.

In this case, the sentencing offense took place in 2003, while the other offenses took place in 1986. Because the sentencing offense did not encompass the same five-year period as the other offenses, OV 13 was improperly scored at 25 points.

B. RESENTENCING

The trial court sentenced defendant to 102 to 480 months of imprisonment under the belief that the statutory sentencing guidelines set forth a minimum range of 87 to 217 months. However, when the statutory sentencing guidelines are correctly scored, they actually set forth a minimum range of 78 to 195 months. Thus, the trial court sentenced defendant to a minimum of 102 months under a misapprehension of the guidelines range.

A defendant is entitled to be sentenced by a trial court on the basis of accurate information. MCL 769.34(10) states, "[i]f a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." (Emphasis added.) In other words, if a minimum sentence falls within the appropriate guidelines range, a defendant is not entitled to be resentenced unless there has been a scoring error or inaccurate information has been relied upon. As we explained in People v. Kimble, 470 Mich. 305, 310-311, 684 N.W.2d 669 (2004), "if the sentence is within the appropriate guidelines sentence range, it is only appealable if there was a scoring error or inaccurate information was relied upon in determining the sentence and the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand."5

MCL 769.34(10) makes clear that the Legislature intended to have defendants sentenced according to accurately scored guidelines and in reliance on accurate information (although this Court might have presumed the same even absent such express language).6 Moreover we have held that "a sentence is invalid if it is based on inaccurate information." People v. Miles, 454 Mich. 90, 96, 559 N.W.2d 299 (1997).7 In this case, there was a scoring error, the scoring error altered the appropriate guidelines range, and defendant preserved the issue at sentencing.8 It would be in derogation of the law, and fundamentally unfair, to deny a defendant in the instant circumstance the opportunity to be resentenced on the basis of accurate information.9 A defendant is entitled to be sentenced in accord with the law, and is entitled to be sentenced by a judge who is acting in conformity with such law.

The trial court here sentenced defendant to a minimum of 102 months under the misapprehension that the statutory sentencing guidelines called for a minimum sentence of 87 to 217 months; instead, the guidelines, correctly scored, called for a minimum sentence of 78 to 195 months.10 While the difference between the mistaken and the correct guidelines ranges is relatively small, the fundamental problem nonetheless is illustrated. The actual sentence suggests an intention by the trial court to sentence defendant near the bottom of the appropriate guidelines range— specifically, fifteen months or 17 percent above the 87-month minimum. Had the trial court been acting on the basis of the correct guidelines range, however, we simply do not know whether it would have been prepared to sentence defendant to a term 24 months or 30 percent above the new 78-month minimum.11 Indeed, appellate correction of an erroneously...

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