People v. McGraw

Decision Date28 July 2009
Docket NumberCalendar No. 2.,Docket No. 132876.
Citation771 N.W.2d 655,484 Mich. 120
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Matthew Lloyd McGRAW, Defendant-Appellant.
CourtMichigan Supreme Court

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Randy L. Price, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Anne Yantus and Kim M. McGinnis), Detroit, for the defendant.

Brian A. Peppler and Timothy K. Morris for the Prosecuting Attorneys Association of Michigan.


This case involves further analysis of the issue presented in People v. Sargent.1 There we held that offense variable (OV) 9 in the sentencing guidelines2 cannot be scored using uncharged acts that did not occur during the same criminal transaction as the sentencing offense. Today we decide whether the offense variables should be scored solely on the basis of conduct occurring during the sentencing offense3 or also using conduct occurring afterward.

We hold that a defendant's conduct after an offense is completed does not relate back to the sentencing offense for purposes of scoring offense variables unless a variable specifically instructs otherwise. Therefore, in this case, defendant's flight from the police after breaking and entering a building was not a permissible basis for scoring OV 9. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for resentencing.


Defendant broke into a general store in Marion Township on June 28, 2002, broke into an audio store on July 20, 2002, and then broke into the same general store again on January 5, 2003. No one was in the stores during the break-ins. During the January 5 incident, a witness called the police after seeing defendant and two accomplices loading stolen goods into a car. After defendant and his accomplices left the scene of the crime, a police officer saw the getaway car traveling on the road and pursued it. The chase ended when the vehicle entered a yard and crashed into a chain-link fence. The occupants fled on foot, but defendant was captured.

Defendant pleaded guilty to three counts of breaking and entering a building with intent to commit larceny4 in exchange for the dismissal of other charges, including fleeing and eluding the police.5 In scoring the offense variables, the sentencing court assessed 10 points under OV 9 because it found that defendant had placed at least two victims in danger. The court stated that it would sentence defendant within the guidelines recommendation and imposed concurrent prison terms of 9 to 30 years, 6 to 30 years, and 6 to 30 years. The nine-year sentence resulted from the assessment of 10 points under OV 9 for fleeing from the police after the January 5 break-in.6

Defendant's timely request for the appointment of appellate counsel was denied, as was his timely pro se motion for resentencing challenging the scoring of OV 9. The Court of Appeals denied defendant's pro se application for leave to appeal for lack of merit, but this Court remanded the case to the Court of Appeals for consideration as on leave granted.7

The Court of Appeals affirmed defendant's conviction, concluding that the record supported the assessment of 10 points under OV 9 because there were two to nine victims.8 We granted defendant's application for leave to appeal.9


The interpretation and application of the legislative sentencing guidelines, MCL 777.1 et seq. involve legal questions that this Court reviews de novo.10

We are called on to provide further detail delineating the scope of conduct that sentencing courts should consider when scoring the offense variables of the statutory sentencing guidelines. Defendant argues that the variables are to be scored using an offense-specific approach. Under this approach, only conduct occurring during the offense of which the defendant was convicted may be considered. The prosecution, on the other hand, argues that the guidelines must be scored using a transactional approach. Under this approach, a continuum of the defendant's conduct is examined, which can extend far beyond the acts that satisfy the elements of the sentencing offense.

In analyzing this scoring issue, we read the statutory provision for OV 9 in the context of the entire statute "so as to produce, if possible, a harmonious and consistent enactment as a whole."11 The fair and natural import of the provision governs, considering the subject matter of the entire statute.12

We addressed what conduct the sentencing court should consider in People v. Sargent.13 We explained that "the offense variables are generally offense-specific. The sentencing offense determines which offense variables are to be scored in the first place, and then the appropriate offense variables are generally to be scored on the basis of the sentencing offense."14 We stated that usually "only conduct `relating to the offense' may be taken into consideration when scoring the offense variables."15

Our determination about how offense variables should be scored was based on a reading of the sentencing guidelines statutes as a whole. We relied on the Legislature's use of the terms "the offense" and "each offense" in MCL 777.21:

MCL 777.21 instructs us on how to score the sentencing guidelines. MCL 777.21(1)(a) instructs us to "[f]ind the offense category for the offense ... [and] determine the offense variables to be scored for that offense category...." (Emphasis added.) MCL 777.21(2) instructs us to "score each offense" if "the defendant was convicted of multiple offenses...." (Emphasis added.) MCL 777.21(3), which pertains to habitual offenders, instructs us to "determine the ... offense variable level ... based on the underlying offense," and then to increase the upper limit of the recommended minimum sentence range as indicated. (Emphasis added.) This language indicates that the offense variables are generally offense specific.[16]

We found it telling in Sargent that the individual offense variables presume that the sentencing offense is the reference point for scoring purposes. This is because only when conduct occurring after commission of the sentencing offense is to be considered in scoring do the variables spell out the scope of that conduct:

That the general rule is that the relevant factors are those relating to the offense being scored is further supported by the fact that the statutes for some offense variables specifically provide otherwise. For instance, MCL 777.44(2)(a) provides that when scoring OV 14 (whether the offender was a leader in a multiple-offender situation), "the entire criminal transaction should be considered...." For other offense variables, the Legislature unambiguously made it known when behavior outside the offense being scored is to be taken into account. OV 12 (contemporaneous felonious acts), for example, applies to acts that occurred within 24 hours of the sentencing offense and have not resulted in separate convictions. MCL 777.42(2)(a). OV 13 (continuing pattern of criminal behavior) explicitly permits scoring for "all crimes within a 5-year period, including the sentencing offense," regardless of whether they resulted in convictions. MCL 777.43(2)(a). OV 16 (property obtained, damaged, lost, or destroyed) provides that in "multiple offender or victim cases, the appropriate points may be determined by adding together the aggregate value of the property involved, including property involved in uncharged offenses or charges dismissed under a plea agreement." MCL 777.46(2)(a). Finally, OV 8 (asportation or captivity of victim) specifically focuses on conduct "beyond the time necessary to commit the offense." MCL 777.38(1)(a). That the Legislature has explicitly stated that conduct not related to the offense being scored can be considered when scoring some offense variables strengthens our conclusion that, unless stated otherwise, only conduct that relates to the offense being scored may be considered.[17]

As we explained in Sargent, it is telling that the Legislature included language in particular variables explicitly instructing the sentencing court to consider factors or conduct beyond the sentencing offense itself; however, it included no such language in other variables, such as OV 9. If the Legislature had intended a court scoring the sentencing guidelines to use a transactional approach, much of the language in some of the offense variables would have been surplusage. In interpreting a statute, we avoid a construction that would render part of the statute surplusage or nugatory.18

If we read the sentencing guidelines as offense-specific by default, the language defining the scope of conduct for particular offense variables is not surplusage. For example, points are assessed under OV 14 if the offender was a leader in a multiple-offender situation. The statute provides that the "entire criminal transaction should be considered" when scoring this offense variable.19 When we acknowledge that the default procedure is to score the offense variables using an offense-specific approach, the instruction for OV 14 takes on significance. It requires OV 14 to be scored differently from most. Points must be assessed for conduct extending beyond the sentencing offense. The Legislature's wording of the offense variable statutes implies a default rule that the variables are to be scored considering the sentencing offense alone. It is only when conduct beyond the sentencing offense is to be considered that the variables address the scope of that conduct.

Furthermore, the sentencing guidelines set forth a comprehensive, detailed scheme for scoring. Every offense to which the guidelines apply is listed in a rather voluminous part 2, comprising MCL 777.11 through 777.19.20 When providing rules for...

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