People v. Jarvi

• Decision Date: 02 April 1996
• Docket Number: Docket No. 178467
• Citation: 548 N.W.2d 676,216 Mich.App. 161
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd Sanford JARVI, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 676

548 N.W.2d 676

216 Mich.App. 161

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Floyd Sanford JARVI, Defendant-Appellant.

Docket No. 178467.

Court of Appeals of Michigan.

Submitted March 12, 1996, at Lansing.

Decided April 2, 1996, at 9:00 a.m.

Released for Publication June 11, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David L. Morse, Prosecuting Attorney, and Daniel J. Garber, Jr., Chief Assistant Prosecutor.

State Appellate Defender by F. Michael Schuck, for defendant on appeal.

Before FITZGERALD, P.J., and CORRIGAN and SCHMUCKER, ^* JJ.

PER CURIAM.

Defendant pleaded nolo contendere to five counts of first-degree criminal sexual conduct, M.C.L. § 750.520b;M.S.A. § 28.788(2), one count of kidnapping, M.C.L. § 750.349;M.S.A. § 28.581, one count of armed robbery, M.C.L. § 750.529;M.S.A. § 28.797, one count of assault with intent to commit first-degree criminal sexual conduct, M.C.L. § 750.520g(1);M.S.A. § 28.788(7)(1), one count of carrying a concealed weapon, M.C.L. § 750.227;M.S.A. § 28.424, two counts of resisting and obstructing a police officer, M.C.L. § 750.479;M.S.A. § 28.747, and seven counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b;M.S.A. § 28.424(2).Defendant's plea was made pursuant to a Cobbs ¹ agreement that he receive a minimum sentence of no more than twenty-five years.²Defendant was sentenced to concurrent prison terms of twenty-three to fifty years for each of the underlying convictions, to be served consecutively to a two-year prison term for the felony-firearm convictions.He appeals as of right.We affirm.

Defendant's sole claim on appeal is that he is entitled to resentencing because of various errors in the scoring of the guidelines' variables.He claims that the errors resulted in a higher guidelines' range and, hence, a longer sentence under the sentence agreement.³

First, the evidence supports the trial court's assessment of fifteen points for Offense Variable 5.Fifteen points may be assessed for OV 5 when the victim is moved to another place or situation of greater danger or held captive significantly beyond that which was necessary to commit the offense.The record reveals that defendant transported the victim in a vehicle to various locations and sexually assaulted her at different locations.This evidence is sufficient to support the trial court's assessment of fifteen points.People v. Hernandez, 443 Mich. 1, 16, 503 N.W.2d 629(1993).

Defendant argues, however, that a score of fifteen points constitutes impermissible "double counting" because defendant's kidnapping conviction was taken into account in assessing twenty points under Prior Record Variable 7 for two or more subsequent or concurrent felony convictions.We disagree.

OV 5 and PRV 7 are two separate categories addressing two different situations.OV 5 provides for the assessment of points if the defendant moved the victim to a place or situation of greater danger or holds the victim captive longer than necessary to commit the offense.PRV 7 provides for the assessment of points for two or more subsequent or concurrent felony convictions.Each variable is directed toward a different purpose.OV 5 is concerned with the danger in which the victim was placed.PRV 7 is concerned with the commission of a number of felonies at the same time.The trial court's assessment of points for both variables was proper.See, e.g., People v. Maben, 208 Mich.App. 652, 528 N.W.2d 850(1995), andPeople v. Vonins (After Remand), 203 Mich.App. 173, 511 N.W.2d 706(1993).

Defendant also challenges the scoring of OV 2 and OV 7.However, because a reduction in the score of OV 2 from fifty to twenty-five points as requested by defendant and a reduction in the score of OV 7 from five to zero points would still place defendant in Offense Level IV, we need not address the challenges.⁴People v. Johnson, 202 Mich.App. 281, 290, 508 N.W.2d 509(1993).

Defendant also challenges the trial court's assessment of five points for PRV 6.Five points may be assessed for PRV 6 when an "other relationship" to the criminal justice system exists.The instructions for PRV 6 state that an "other relationship" exists if, at the time of the instant offense, the offender was either (1) on bond or bail, (2) on pretrial diversion, or (3) on Holmes Youthful Trainee status.Here, it is undisputed that defendant was charged with first-degree criminal sexual conduct and was on bond at the time of the present offense.Defendant claims, however, that points cannot be scored as a result of the "other relationship" because he was acquitted of the criminal sexual conduct charges approximately three months after he committed the present offense.We disagree.The obvious intent of awarding five points to an individual who commits a crime while on bond or bail has no...