People v. Smith
| Decision Date | 29 December 2010 |
| Docket Number | Docket No. 140371.,Calendar No. 11. |
| Citation | 793 N.W.2d 666,488 Mich. 193 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant v. David Ray SMITH, Defendant-Appellee. |
| Court | Michigan Supreme Court |
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.
Law Office of John D. Roach, Jr., PLC (by John D. Roach, Jr.), Detroit, for defendant.
Anne Yantus for amici curiae the Criminal Defense Attorneys of Michigan.
William J. Vailliencourt, Jr., for amici curiae the Prosecuting Attorneys Association of Michigan.
Anne Yantus, Detroit, for amici curiae the Criminal Defense Attorneys of Michigan.
The issue presented in this case is whether offense variable (OV) 19, MCL 777.49, may be scored for aggravating conduct that occurred after the sentencing offense was completed. In People v. McGraw, this Court held that "[o]ffense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." 1 Here, we hold that because the circumstances described in OV 19 expressly include events occurring after the completion of the sentencing offense, scoring OV 19 necessarily is not limited to consideration of the sentencing offense. Thus, under the exception to the general rule set forth in McGraw, the offense variable may be scored for conduct that occurred after the sentencing offense was completed. We reverse the judgment of the Court of Appeals in part and reinstate defendant's sentence for manslaughter.
This case stems from an automobile collision in Jackson County in June 2007. Defendant was driving his 1993 Cadillac with three passengers, including Nicole Wolfe, who sat in the front passenger seat. Wolfe testified that defendant drove recklessly and at a high rate of speed when he pulled into a lane of oncoming traffic as a green truck approached. When Wolfe screamed in fear, defendant indicated that the truck would pull off the road. Thomas Lantz, the driver of the green truck, observed defendant driving toward his truck at a high rate of speed. Lantz testified that he pulled over as far as he could, but was unable to movecompletely off of the road because road construction precluded it. At the last moment, defendant swerved back into the proper lane, avoiding the collision with the truck.
After the near collision with Lantz's truck, defendant accelerated through the construction zone and crested a hill. A short distance away, the victim, Diane Sigers, sat in her compact automobile, attempting to make a left turn from a cross street. Wolfe testified that she could see the side of the victim's car and her head as defendant's car approached. Wolfe again screamed, telling defendant that the victim's car would not clear the road in time. Defendant assured her that the car would get out of his way, and further increased his speed. Wolfe remembered that defendant applied the brakes just before impact, but was too late to avoid colliding with Sigers at a high rate of speed. The forensic pathologist testified that the victim diedwithin a few seconds after the collision because of the massive injuries she sustained.
Wolfe spent two days in the hospital, having suffered six fractured ribs, a ruptured spleen, and a bruised heart in the collision. After she was discharged from the hospital, defendant began contacting her via telephone. Defendant told Wolfe that she "shouldn't talk to anybody" because "there was no proof of anything" and that defendant "was innocent" as long as Wolfe remained quiet. Defendant told Wolfe that if he could not "take care of the problem," then he would "have somebody else do it for" him. As a result of such statements, Wolfe was initially reluctant to speak with the police. Eventually, Wolfe did speak with the police, relaying what she recalled from before the collision, as well as defendant's statements to Wolfe after she was released from the hospital.
A jury convicted defendant of manslaughter,2 reckless driving,3 and witness intimidation.4 At sentencing, defense counsel made two objections to the scoring of the sentencing guidelines, including arguing that defendant's witness intimidation conviction precluded the scoring of OV 19 for the manslaughter conviction. The trial court rejected the argument, ruling that defendant's attempt to interfere with the administration of justice was a "separately cognizable consideration[1] within the sentencing guidelines...." The recommended minimum sentence range for defendant's manslaughter conviction was 50 to 125 months' imprisonment. Defendant was sentenced within the sentencing guidelines as a second-offense habitual offender 5 to 10 to 22 years for manslaughter, along with a concurrent sentence of 5 to 15 years for witness intimidation.6
In his appeal of right, defendant argued that scoring OV 19 in addition to his conviction for witness intimidation amounted to "doubly penalizing" defendant. In an unpublished opinion per curiam,7 the Court of Appeals affirmed defendant's convictions but remanded for resentencing, relying on this Court's recently decided opinion in McGraw. After noting the rule of McGraw that offense variables may not be scored for conduct that occurred after the completion of the sentencing offense unless provided for in the particular variable, the Court of Appeals ruled that OV 19 "doesnot expressly or specifically provide" for the consideration of conduct that occurred after the completion of the sentencing offense.8 Because defendant's threatening statements to Wolfe were committed after the manslaughter was completed, the Court of Appeals held that defendant should have received zero points for OV 19. The Court of Appeals affirmed defendant's convictions but remanded for resentencing on the manslaughter conviction because defendant's minimum sentence fell outside the corrected guidelines range of 43 to 107 months' imprisonment.9
Both defendant and the prosecution sought leave to appeal in this Court. We denied defendant's application 10 and granted the prosecution leave to appeal, "limited to the issue whether points may be assessed pursuant to MCL 777.49 (OV 19) for conduct that occurs after the sentencing offense is completed." 11
The interpretation and application of the legislative sentencing guidelines, MCL 777.1 et seq. , involve legal questions that are reviewed de novo. 12
The statutory provision for OV 19 can be found at MCL 777.49, which provides:
In McGraw, this Court held that "[o]ffense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." 13 Therefore, we must consider whether OV 19 provides for the "consideration of conduct after completion of the sentencing offense." 14
As an initial matter, we note that the sentencing guidelines categorize all felonies into one of six distinct offense categories: crimes against a person, crimes against property, crimes involving a controlled substance, crimes against public order, crimes against public trust, and crimes against public safety.15 These six offense categories encompass a broad variety of crimes, ranging from kidnapping 16 to removing a shrubwithin a highway right of way without a permit in order to make a sign more visible. 17 The Legislaturehas also directed, without exception, that OV 19 be scored for each and every one of these offense categories.18
The aggravating factors considered in OV 19 contemplate events that almost always occur after the charged offense has been completed. For example, pursuant to MCL 777.49(a), 25 points are assessed under OV 19 for conduct that threatens "the security of a penal institution or court...." It is axiomatic that every defendant charged with a felony must, at a minimum, enter a court in order to have his criminal charges resolved.19 And while not every criminal defendant is required to confront a penal institution in consequence of his felonious activity, by the time a defendant encounters either a courthouse or a penal institution, the sentencing offense has long been completed. The express consideration of these events explicitly indicates that postoffense conduct may be considered when scoring OV 19.
The Criminal Defense Attorneys of Michigan argues as amicus curiae that a defendant may be properly assessed 25 points under OV 19, but only if the underlying sentencing offense itself threatened the security of a courthouse or penal institution, such as when the sentencing offense was committed while the defendant was in prison. However, nothing in the language of MCL 777.49(a) is limited to those instances in which the...
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