People v. Hershey
303 Mich. App. 330
| Mich. Ct. App. | 2013Background
- Defendant Joseph Hershey pleaded guilty (July 8, 2010) to failing to pay court-ordered child support and was given a Cobbs offer; he later admitted nonpayment and received jail plus probation.
- Presentence materials showed child-support arrearages between $1,000 and $20,000; probation department recommended scoring OV 16 = 5 points and OV 19 = 10 points; the trial court adopted those scores at resentencing (3.5–15 years as habitual fourth offender).
- Defendant violated probation, pleaded guilty to the violation, and later moved to correct the SIR and for resentencing, arguing OVs 16 and 19 were incorrectly scored.
- Trial court denied the motion; defendant appealed; Michigan Supreme Court remanded for this Court to address correct scoring of OV 16 and OV 19 and whether defendant waived or forfeited objections by not objecting at sentencing.
- This Court found the record did not support scoring OV 16 or OV 19 as the trial court did, and that defendant did not waive/forfeit the challenges because he timely moved for resentencing.
Issues
| Issue | Prosecution's Argument | Hershey's Argument | Held |
|---|---|---|---|
| Whether OV 16 (property obtained, damaged, lost, or destroyed) was properly scored 5 pts | Retaining money meant for children equates to "obtained" or the children ‘‘lost’’ property (support) | Failure to pay is not taking/damaging property already possessed; arrearage is an expectation/right, not tangible property lost | OV 16 improperly scored; preponderance of evidence did not support 5 pts; OV 16 requires loss of property already possessed, so score vacated |
| Whether OV 19 (interference with administration of justice) was properly scored 10 pts | Failing to comply with court order and violating probation interfered with administration of justice | Failure to pay/post-sentencing probation violation did not hamper or obstruct judicial process; conduct not within examples of OV 19 | OV 19 improperly scored; defendant’s nonpayment and probation violation did not interfere with the act/process of administering judgment; 10 pts vacated |
| Whether defendant waived or forfeited appellate review by not objecting at sentencing | Counsel’s silence/read of PSIR could be treated as waiver/forfeiture | Counsel’s "no additions or corrections" to PSIR did not clearly approve OV scoring; defendant moved for resentencing so issue preserved | No waiver. Because defendant filed a proper motion for resentencing, the challenge is preserved and resentencing is required; sentence vacated |
Key Cases Cited
- People v Hardy, 494 Mich 430 (2013) (trial-court factual findings reviewed for clear error and must be supported by a preponderance of the evidence; statutory application reviewed de novo)
- People v Kimble, 470 Mich 305 (2004) (sentence outside guidelines is appealable regardless of preservation; MCL 769.34(10) preserves remedies)
- People v Kowalski, 489 Mich 488 (2011) (defense counsel’s clear, repeated approval of a ruling constitutes waiver)
- People v Barbee, 470 Mich 283 (2004) (OV 19 "interference" is broad and can include pre-charge obstructive acts)
- People v Laidler, 491 Mich 339 (2012) (use dictionary definitions for undefined statutory terms to determine plain meaning)
- People v Gibbs, 299 Mich App 473 (2013) (statutory interpretation reviewed de novo; sentencing-guidelines interpretation principles)