People v. Hershey

Decision Date05 December 2013
Docket NumberDocket No. 309183.
Citation303 Mich.App. 330,844 N.W.2d 127
CourtCourt of Appeal of Michigan — District of US


Dale J. Hilson, Muskegon County Prosecutor; Terrence E. Dean, Assistant Prosecutor; and Charles F. Justian, Senior Assistant Prosecutor, for the people.

Ronald D. Ambrose for defendant.



In this criminal case involving the failure to pay child support, MCL 750.165, we consider the appeal of defendant, Joseph Frank Hershey, as on leave granted pursuant to a remand order from our Supreme Court. Defendant seeks resentencing, claiming that the trial court incorrectly scored Offense Variables (OVs) 16 and 19. In its order, the Supreme Court directed this Court to consider “whether [OV] 16 (property obtained, damaged, lost, or destroyed) and OV 19 (interference with the administration of justice) were correctly scored and whether the defendant, by failing to object to the scoring of these offense variables at sentencing, forfeited or waived any scoring errors.” 1 For the reasons set forth below,we conclude that OVs 16 and 19 were incorrectly scored, resulting in a sentence that is outside the appropriate guidelines sentence range. Furthermore, having reviewed the entire record, we conclude that defendant did not waive these scoring errors; and because he raised the errors in a motion for resentencing before the trial court, he did not forfeit the issue, and the matter is preserved. We vacate defendant's sentence and remand for resentencing under properly scored sentencing guidelines.


On July 8, 2010, defendant pleaded guilty of failing to pay child support from approximately September 26, 2006, until approximately December 2009. Pursuant to a Cobbs2 commitment, if defendant was able to pay $1,604.67 by the time of sentencing, the trial court would impose a period of probation, not incarceration, for defendant's offense. The trial court agreed to delay sentencing for three months in order to give defendant the opportunity to pay the money. At the subsequent sentencing hearing on October 25, 2010, defendant admitted that he had not paid the $1,604.67; therefore, the trial court sentenced him to 5 months in jail and 24 months' probation. As part of his probation, defendant was ordered to pay restitution, which included his child support arrearages. The Presentence Investigation Report (PSIR) indicates that on April 7, 2010, the amount of defendant's arrearage was $6,418.68. On July 28, 2011, after defendant was released from jail, a bench warrant was filed because defendant had violated the terms of his probation by failing to report to his supervising agent and by contacting his daughter. On August 29, 2011, defendant pleaded guilty of the probation violation.

On September 13, 2011, the trial court held a sentencing hearing. At the beginning of the hearing, the trial court asked defense counsel whether he had had an opportunity to read the two presentence reports,3 to which defense counsel responded that he had, and that he had no additions or corrections. The trial court confirmed with defendant that he had also had an opportunity to read the two presentence reports and discuss them with his attorney, and that he had no additions or corrections. In the Sentencing Information Report (SIR), which was attached to the PSIR, the probation department recommended assessing 5 points for OV 16, MCL 777.46, and 10 points for OV 19, MCL 777.49. At no point during the sentencing, however, did anyone discuss the proposed scoring of the OV factors or the trial court's intentions with regard to scoring. The trial court then sentenced defendant as an habitual offender, fourth offense, to 3 years and 6 months to 15 years' imprisonment for failing to pay court-ordered child support. The SIR reveals that the trial court scored 5 points for OV 16 and 10 points for OV 19, which was consistent with the probation department's recommendation.

On January 25, 2012, defendant moved the trial court to correct the SIR and for resentencing. Defendant argued that OV 16 was improperly scored because it did not apply to the facts of his case. According to defendant, the failure to pay child support did not constitute property “obtained, damaged, lost, or destroyed.” He also argued that OV 19 was improperly scored because, although the phrase “interfered with or attempted to interfere with the administration of justice” in MCL 777.49(c) is broad, there was no evidence in the record that he did so. Defendant insisted that the mere act of failing to pay child support was not enough; otherwise, every offense would constitute interference with the administration of justice in MCL 777.49(c). Because a change in the scoring of OVs 16 and 19 would affect the minimum sentence guidelines range, defendant sought resentencing.4 The prosecution opposed defendant's motion, contending that defendant had expressly waived his challenges to OVs 16 and 19 and that, regardless, they were correctly scored. The trial court denied defendant's motion for resentencing, adopting the prosecution's reasoning. Although this Court denied defendant's delayed application for leave to appeal,5 the Supreme Court has ordered this Court to address both the waiver issue and the scoring of OVs 16 and 19.


Recently in People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013), our Supreme Court clarified both the quantum of evidence necessary to support a scoring decision and the standard of review to be used by this Court:

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. 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.

Defendant's arguments require this Court to interpret OV 16, MCL 777.46; and OV 19, MCL 777.49. Statutory interpretation is a question of law that we review de novo on appeal. People v. Gibbs, 299 Mich.App. 473, 484, 830 N.W.2d 821 (2013). This Court interprets sentencing guidelines in accordance with the rules of statutory construction.” People v. Light, 290 Mich.App. 717, 722, 803 N.W.2d 720 (2010). When this Court interprets a statute, its primary goal

is to give effect to the intent of the Legislature. If the language of the statute is unambiguous, judicial construction is not permitted because the Legislature is presumed to have intended the meaning it plainly expressed. Judicial construction is appropriate, however, if reasonable minds can differ concerning the meaning of a statute. Where ambiguity exists, this Court seeks to effectuate the Legislature's intent by applying a reasonable construction based on the purpose of the statute and the object sought to be accomplished. The court must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute. In construing a statute, the statutory provisions must be read in the context of the entire statute in order to produce a harmonious whole; courts must avoid a construction that would render statutory language nugatory. [Id. (citation and quotation marks omitted).]

If a term in a statute is defined by statute, the definition contained therein controls. People v. Williams, 288 Mich.App. 67, 74, 792 N.W.2d 384 (2010). However, if a term is not defined by statute, a reviewing court may look to dictionary definitions for guidance. People v. Laidler, 491 Mich. 339, 347, 817 N.W.2d 517 (2012).

A. OV 16

Defendant argues that the trial court erred by scoring OV 16 at 5 points. We agree.

MCL 777.46(1)(c) requires the trial court to score 5 points when property that “had a value of $1,000.00 or more but not more than $20,000.00” is “obtained, damaged, lost, or destroyed.” “In cases in which the property was obtained unlawfully, lost to the lawful owner, or destroyed,” the trial court is to use the value of the property in scoring OV 16. MCL 777.46(2)(b).

Defendant argues that OV 16 does not apply to the facts of this case because there was no property “obtained, damaged, lost, or destroyed.” Specifically, defendant points out that, as set forth in the PSIR, he had no ability to pay his court-ordered assessments because he was unemployed.6 The prosecution argues that defendant “obtained” money by retaining it, instead of providing it for his children as ordered by the family court. The prosecution also argues that the money is “lost” to the children because it was not available to them to pay their support at the critical time that the payment was due.

Neither defendant nor the prosecution cites any caselaw in support of their arguments, nor do they provide any further analysis, for that matter. In fact, there is no published caselaw addressing whether failing to pay child support can be scored under OV 16.7 Because neither party argues that property was “damaged” or “destroyed” by defendant's failure to pay child support, the only issues are whether property was “obtained unlawfully” or “ lost to the lawful owner.” 8MCL 777.46(2)(b).

With respect to whether defendant unlawfully obtained property, the PSIR reveals that defendant was unemployed, possibly living in a park, and unable to pay child support. It also reveals that defendant did not receive any income or have any significant assets. The record is void of any evidence, let alone a preponderance of the evidence, to refute that defendant was unemployed and unable to pay. If defendant did not have money, he cannot be said to have retained or obtained money; a legal obligation to pay money does not translate to possession of the money owed. Scoring 5 points on the basis...

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