I. FACTUAL BACKGROUND
Livonia police officers received a tip that defendant, his wife, and his brother were involved in a series of unsolved home invasions. On January 17, 2011, after surveilling defendant’s behavior for a time, police officers watched him and his brother drive to a house on Glenwood Drive in Walled Lake. Before they had arrived on Glenwood, defendant and his brother had agreed to a plan whereby they would enter the house and steal various items such as guns and cash, as had been their practice in their previous home invasions. After they reached the residence, defendant’s brother stepped out of the car and approached the house. Defendant remained in the car and drove it a short distance away. Defendant then returned to the housе with the car and parked. When entering the Glenwood house, defendant and his brother broke one window and damaged another; they also damaged a sliding door and a garage door. In addition, they damaged the wood floors and parts of the diywall during their time inside the house.
After finding a safe, defendant left the house and went to get the vehicle. He intendеd to move it closer to the house so that it would be easier for him and his brother to load the safe they planned to steal. The police officers watching the front of the Glenwood house saw defendant enter the vehicle and decided the time had come to apprehend him.
Officer Nehasil was positioned in the back of the Glenwоod house so he could arrest anyone who ran out from that direction. Police officers approached defendant’s vehicle on the street in front of the house and he tried to drive it around them. While he was attempting to flee, the police
While the police in the front of the Glenwood house were occupied with trying to arrest defendant, a series of rapid gunshots rang out. Officers ran to the back of the house where they discovered Officer Nehasil’s body lying on the ground. Defendant’s brother was lying on top of the police officer. Both men were dead. Two guns were found at the scene, one belonging to Officer Nehasil and the other belonging to the owner of the Glenwood house. Defendant claimed that he did not see his brother with a gun before or during the home invasion. However, defendant stated that he and his brother had committed numerous home invasions in the past and it had been their practice to steal guns during these excursions. Defendant said that after stealing the guns he and his brother would sometimes sell them to drug dealers.
In exchange for dismissing a charge of first-degree murdеr, defendant pleaded nolo contendere to charges of first-degree home invasion, resisting and obstructing, and second-degree murder. Defendant was sentenced to 50 to 100 years for the first-degree home invasion conviction, 3 to 15 years for the resisting and obstructing conviction, and 100 to 150 years for the second-degree murder conviction.
II. CRUEL OR UNUSUAL PUNISHMENT
A. PRESERVATION AND STANDARD OF REVIEW
Defendant did not advance a claim below that his sentences were unconstitutionally cruel or unusual, so this issue is unpreserved. People v Kimble,
B. ANALYSIS
Defendant first argues that his sentences for the convictions of first-degree home invasion and second-degree murder are excessive and constitute cruel or unusual punishment as prohibited by state and federal constitutions.
Defendant’s 100-year minimum sentence for his second-degree murder conviction is within his sentencing guidelines range of 365 to 1,200 months or life. A sentence within the guidelines range is presumptively proportionate, and a proportionate sentence is not cruel or unusual. People v Powell,
Defendant contends that his sentences are cruel or unusual because of his age, 49 years old, which effectively means he will spend the remainder of his life in jail. Yet, defendant incorrectly assumes that he is entitled to parole. That assumption is not supported by Michigan law. See People v Merriweather,
Furthermore, defendant’s age is insufficient to overcome the presumptive proportionality of his sentences, especially considering his lengthy criminal record and the gravity of his offenses. At the plea hearing, the trial court noted that defendant was charged as a fourth-offense habitual offender and that the crimes subjected him to a potential life sentence. Defendant had seven prior felonies and nine prior misdemeanors, and during the week of his sentencing he pleaded guilty in another matter to charges of home invasion and receiving and concealing a stolen firearm.
Defendant’s extensive criminal record establishes a pattern of violence and disregard for others. The evidence indicates that the instant crimes were part of a string of recent home invasions in which defendant, his wife, and his brother planned and participated. Defendant admitted that they were looking for money, jewelry, and guns and that in the recent home invasions he had taken two or three guns and sold them for drugs. While defendant claims that he had no knowledge that his brother had a gun in his possession during the home invasion in which Officer Nehasil was murdered, his admission that they were looking for guns to sell and the inherently dangerous nature of a home invasion belies his claimed naiveté that violence would likely occur.
Defendant also has failed to demonstrate that his sentences are cruel or unusual in comparison to the penalties imposed for other crimes in this state or for the same crimеs in other states. Brown,
Thus, in light of the egregious nature of his offenses and the comparable sentences imposed on others, defendant has failed to demonstrate that his sentences were cruel or unusual and that there was any error requiring reversal.
III. SCORING OF SENTENCING GUIDELINES
A. STANDARD OF REVIEW
Defendant next сlaims that he is entitled to resentencing because the trial court incorrectly scored offense variables (OVs) 6, MCL 777.36, and 9, MCL 777.39.
“The proper interpretation and application of the legislative sentencing guidelines are questions of law, which this Court reviews de novo.” People v Cannon,
B. ANALYSIS
“A trial court determines the sentencing variables by reference to the record, using the standard of preponderance of the evidence.” Osantowski,
In regard to OV 6, MCL 777.36 states, in relevant part:
(1) Offense variable 6 is the offender’s intent to kill or injure another individual. Score offense variable 6 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) The offender had premeditated intent to kill or the killing was committed while committing or attempting to commit arson, criminal sexual conduct in the first or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind, extortion, or kidnapping or the killing was the murder of a peace officer or a corrections officer ............................................50 points
Defendant argues that the trial court erred by scoring 50 points under OV 6 because he did not have the requisite intent to kill since he was merely an accomplice to his brother and his brother did the shooting. Contrary to defendant’s assertion, his intent to kill and whether he pulled the trigger are irrelevant when a killing occurs under particular circumstances. According to the plain language of the statute, the scoring of 50 points is аppropriate when the offender has the premeditated intent to kill or the killing was committed in the course of the commission of one of the enumerated offenses. MCL
Defendant also challenges the scoring of OV 9, MCL 777.39. OV 9 requires the scoring of 10 points where “[t]here were 2 to 9 victims who were placed in danger of physical injury or death, or 4 to 19 victims who were placed in danger of property loss[.]” MCL 777.39(1)(c). The sentencing court must “[c]ount each person who was placed in danger of physical injury or loss of life or property as a victim.” MCL 777.39(2)(a).
IV RESTITUTION
A. PRESERVATION AND STANDARD OF REVIEW
Lastly, defendant contends that the trial court erred by ordering him to pay restitution in the amount of $5,890.33. Because defendant raised this issue for the first time on appeal, we review his claim for plain error affecting his substantial rights. People v Carines,
B. ANALYSIS
Section 16(2) of thе Crime Victim’s Rights Act, MCL 780.766(2), mandates that a defendant “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction or to the victim’s estate.” This is not discretionary, because a trial court “must order the defendant to pay restitution and the amount must fully compensate the defendant’s victims.” People v Allen,
In the instant case, the presentence investigation report contained information regarding the costs of this incident to the homeowner. The homeowner indicated that he and his family received professional counseling after the home invasion, costing $880. He also requested $1,000 reimbursement for the insurance deductible he paid relating to the damage caused during the home invasion and $1,131.46 for carpet replacemеnt, which his insurance did not cover. In addition, his insurance company incurred $2,878.77 in costs paid to the homeowner. Although there was ample opportunity, defendant never challenged these factual assertions in the report. Thus, the trial court was entitled to rely on the accuracy of the amounts provided in the presentence investigation report. While defendant now requests a remand for an evidentiary hearing, it was “incumbent on the defendant to make a proper objection and request an evidentiary hearing. Absent such objection, the court is not required to order, sua sponte, an evidentiary proceeding to determine the proper amount of restitution due.” People v Gahan,
V CONCLUSION
Defendant has failed to demonstrate that his sеntences constitute cruel or unusual punishment, that he is entitled to resentencing on the basis of errors in calculating OV 6 and OV 9, and that the trial court erred by ordering him to pay restitution. We affirm defendant’s convictions and sentences, although we remand for the administrative task of correcting the restitution amount of $5,890.33, by 10 cents to $5,890.23. Although it has no effect on the sentence imposed by the trial court, we also remand for the administrative task of correcting defendant’s judgment of sentence to reflect the trial court’s imposition of a sentence of 3 to 15 years for the resisting and obstructing conviction. We do not retain jurisdiction.
Notes
The judgment of sentence erroneously states that defendant was sentencеd to 50 to 100 years for the resisting and obstructing conviction. We will remand to the trial court for the administrative task of correcting defendant’s judgment of sentence to reflect the sentence of 3 to 15 years for the resisting and obstructing conviction.
The habitual offender statute allows a trial court to “impose a maximum sentence beyond the statutory maximum upon a determination that the defendant ‘has been convicted of any combination of 3 or more felonies or attempts to commit felonies ....’” People v Drohan,
Defendant correctly notes that “the Michigan provision prohibits ‘cruel or unusual’ punishments, while the Eighth Amendment bars only punishments that are both ‘cruel and unusual!,]’ ” People v Bullock,
The Michigan Supreme Court has held that it is error to consider “the entire criminal transaction” when scoring OV 9. People v McGraw,