People v. Hardy

Decision Date29 July 2013
Docket NumberDocket Nos. 144327,Calendar Nos. 2,144979.,3.
Citation835 N.W.2d 340,494 Mich. 430
PartiesPEOPLE v. HARDY. People v. Glenn.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, and Kathryn G. Barnes, for the people in People v. Hardy.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrtoenboer, Chief Appellate Attorney, for the people in People v. Glenn.

Ronald D. Ambrose for defendant Donald Michael Hardy.

Linda D. Ashford, P.C., Detroit (by Linda D. Ashford), for defendant Devon DeCarlos Glenn, Jr.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, and Mark G. Sands, Assistant Attorney General, for Amici Curiae the Attorney General.

James L. Howard for Amici Curiae David Scott Farnen.

VIVIANO, J.

In these consolidated cases, we consider the proper assessment of points under offense variable (OV) 7 (aggravated physical abuse).1 Specifically, our focus is on what type of conduct under OV 7 constitutes “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” 2 In both cases, the circuit courts concluded that the defendants' respective conduct supported assessing 50 points for OV 7 pursuant to MCL 777.37(1)(a). We conclude that the plain meaning of the phrase “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense” encompasses both defendant Hardy's act of racking a shotgun during a carjacking and defendant Glenn's violent behavior during an armed robbery. Accordingly, we affirm the circuit court's scoring decision in Hardy. In Glenn, we reverse the judgment of the Court of Appeals and remand the case to the circuit court for reinstatement of defendant Glenn's July 22, 2010 judgment of sentence.

I. FACTS AND PROCEDURAL HISTORY
A. PEOPLE v. HARDY

In July 2010, defendant Hardy and an accomplice approached a man, who had just exited his car. Hardy pointed a shotgun at the man, racked it, 3 and demanded that the man give him everything he had. The man grabbed the barrel of the shotgun and tried to wrench it out of Hardy's grasp, but Hardy overpowered him, and Hardy and his accomplice drove off in the man's vehicle. Police arrested both men a few hours later.

Hardy pleaded guilty to one count of carjacking.4 At sentencing, the prosecutor argued that the circuit court should assess 50 points for OV 7 because Hardy had not only displayed a shotgun, but had also pointed it at the victim and racked it. The prosecutor claimed that the act of racking a shotgun was “conduct designed only to threaten the victim with immediate violent death.” Defense counsel agreed to the scoring, stating, “I cannot argue with that, your Honor.” Accordingly, the circuit court assessed 50 points for OV 7 and sentenced Hardy to 12 to 50 years' imprisonment.

Hardy filed a motion for resentencing, challenging the OV 7 scoring and claiming that defense counsel had been constitutionally ineffective for consenting to it. The circuit court denied the motion, concluding that the 50–point score under OV 7 was proper and that defense counsel was not constitutionally ineffective. After Hardy filed a delayed application for leave to appeal in the Court of Appeals, a majority of the panel denied leave for lack of merit in the grounds presented.5 However, the dissenting judge would have remanded for resentencing on the ground that the circuit court incorrectly scored OV 7.

We granted leave to consider whether the circuit court erroneously assessed 50 points for OV 7 because Hardy racked the shotgun during the carjacking and whether defense counsel was ineffective for waiving this issue. 6

B. PEOPLE v. GLENN

In August 2009, defendant Glenn and an accomplice entered a gas station convenience store. He carried what two store employees later described as a “sawed-off shotgun.” 7 Glenn ordered one of the employees to approach the front counter. As the employee did so, Glenn struck him in the back of the head with the butt of the weapon. The blow was so forceful that it knocked him to the ground. Glenn then forced both employees behind the counter and demanded money, which Glenn grabbed out of the cash register and safe. He hit the second employee in the side of the head with the butt of his weapon before fleeing with his accomplice in a waiting getaway car. Soon afterward, police stopped the getaway car and arrested Glenn. Neither employee suffered any injuries.

Glenn pleaded guilty to one count of armed robbery 8 and one count of assault with a dangerous weapon.9 At sentencing, the prosecutor argued that striking the employees with the weapon was designed to “get them to move faster, to be afraid,” and that this was sufficient to assess 50 points for OV 7 because it involved “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” The circuit court agreed with the prosecutor and assessed 50 points for OV 7 over defense counsel's objection. The circuit court then sentenced defendant to 15 to 30 years' imprisonment for the armed robbery and 18 to 48 months' imprisonment for the felonious assault.10

In a published opinion, the Court of Appeals vacated defendant's sentence and remanded for resentencing.11 The Court acknowledged that Glenn, by striking the employees, used more violence than was “strictly necessary” to complete an armed robbery.12 But the Court of Appeals concluded that the circuit court erred because OV 7 was only “meant to be scored in particularly egregious cases involving torture, brutality, or similar conduct designed to substantially increase the victim's fear, not in every case in which some fear-producing action beyond the bare minimumnecessary to commit the crime was undertaken.” 13

We granted leave to appeal to consider whether the circuit court erroneously assessed 50 points for OV 7 because Glenn committed “assaultive acts beyond those necessary to commit the offense.” 14

II. STANDARD OF REVIEW

We take this opportunity to clarify the applicable standards of review for a sentencing guidelines scoring issue. In Glenn, the Court of Appeals stated that an appellate court “reviews a trial court's scoring of the sentencing guidelines to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” 15 This is an imprecise statement of applicable law.

As we have explained before, the abuse of discretion standard formerly predominated in sentencing review.16 But when the Legislature enacted the sentencing guidelines in 1998, it prescribed detailed instructions for imposing sentences, thereby reducing the circumstances under which a judge could exercise discretion during sentencing.17 Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. 18 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.19

In these cases, we review for clear error the factual findings that the defendants' conduct was designed to substantially increase the fear and anxiety of their victims. We review de novo whether these acts were sufficient to assess 50 points for OV 7.

III. ANALYSIS
A. INTERPRETING MCL 777.37 (OV 7)

As we have stated before, our goal in interpreting a statute “is to ascertain and give effect to the intent of the Legislature. The touchstone of legislative intent is the statute's language. If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written.” 20

MCL 777.37 governs OV 7. MCL 777.37(1) provides, in full:

(1) Offense variable 7 is aggravated physical abuse. Score offense variable 7 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) A victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.... 50 points

(b) No victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the.... 0 points

A trial court can properly assess 50 points under OV 7 if it finds that a defendant's conduct falls under one of the four categories of conduct listed in subsection (1)(a). No party contends that any of the first three categories (sadism, torture, or excessive brutality) applies in these cases. Thus, our focus is on the fourth category—whether defendants engaged in “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” 21

Other than “sadism,” 22 the statute does not define the individual terms used in the listed categories, so we presume that the Legislature intended for the words to have their ordinary meaning.23 Thus, we turn to the dictionary for guidance in interpreting the terms used in the phrase: “conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” 24

The phrase begins with the words “conduct designed.” “Designed” means “to intend for a definite purpose.” 25 Thus, the word “designed” requires courts to evaluate the intent motivating the defendant's conduct. 26 Next, we come to the words “substantially increase.” “Substantial” means “of ample or considerable amount, quantity, size, etc.” 27 To “increase” means “to make greater, as in number, size, strength, or quality; augment.” 28 Applying these definitions to the relevant text, we conclude that it is proper to assess points under...

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291 cases
  • People v. Arnold
    • United States
    • Michigan Supreme Court
    • July 28, 2021
    ...of a criminal defendant to the maximum extent allowed by the statute under which he or she has been convicted."); People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013) (noting that the sentencing guidelines "prescribed detailed instructions for imposing sentences, thereby reducing" th......
  • People v. Hyatt
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    • Court of Appeal of Michigan — District of US
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    ...de novo, and the court's ultimate determination regarding the sentence imposed is for an abuse of discretion. See People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013) (describing the standard of review for a sentencing court's findings of fact and conclusions of law); Milbourn, 435 Mi......
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    • March 26, 2015
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1 books & journal articles
  • DICTIONARY DIVING IN THE COURTS: A SHAKY GRAB FOR ORDINARY MEANING.
    • United States
    • Journal of Appellate Practice and Process Vol. 22 No. 2, June 2022
    • June 22, 2022
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