*1
manded to circuit court sentence. joined majority opinion concurring, in the Justice McCormack, full, Legislature separately encourage to the to amend but wrote clearly 777.37, 7, its intent to define more articulate MCL OV or designed” language this in offense when included the “conduct likely potential subjectivity scoring in 7 is to for OV variable. defendants, sentencing disparate for which cause outcomes uniformity Legislature contrary goal the of set the when guidelines adopted. were dissenting part, concurring part and in Justice CAVANAGH, majority's agreed clarification of the standard of review with major- scoring disagreed sentencing guidelines with the issues. He ity’s interpretation of 7 and would have held that the “conduct light designed” language interpreted in of the other OV must categories 7 can be scored and thus must be three under which OV reaching sadism, torture, brutality. In class and excessive the same as v decision, majority legislativehistory ignored its of OV and entirety statutory both failed consider of the statute variables, seq. scheme of all offense MCL 777.31et 1. Sentences Victim’s Fear and — Offense Anxiety. Variable — Conduct Substantially Increasing (OV) may A trial court assess 50 under offense variable 777.37(l)(a), sadism, torture, if a victim was “treated with or brutality excessive or increase offense;” the fear and a victim suffered similarly egregious defendant’s conduct does have to be “sadism, torture, brutality;” may or excessive be scored 50 points for conduct that was intended to make a fear victim’s anxiety greater by a considerable amount and such conduct does sadism, torture, not have to be similar to that which constitutes 777.37(l)(a) brutality (3); excessive under MCL when assess- (1) ing points a court must consider whether defendant engaged beyond required in conduct the minimum to commit the offense; and if so whether the conduct was intended to make a anxiety greater by victim’s fear or a considerable amount. Sentencing — — 2. Sentences Guidelines Standards of Review. appeal, guidelines’
On sentencing circuit court’s factual determi- nations supported by are reviewed for clear error and must be preponderance evidence. Whether the determined facts are adequate satisfy prescribed by conditions statute is question statutory interpretation that is reviewed de novo. Bill Schuette, General, Attorney Bursch, John J. General, Solicitor Jessica R. Cooper, Attor- Prosecuting ney, Barnes, and Kathryn G. for the people People v Hardy.
Bill Schuette, Attorney General, Bursch, John J. Solicitor General, Henry Zavislak, C. Prosecuting At- torney, Schrtoenboer, Jerrold Chief Attor- Appellate ney, for the people People Glenn.
Ronald D. Ambrose for defendant Donald Michael Hardy.
Linda D. Ashford, (by Ashford), PC. Linda D. for defendant Devon Glenn, DeCarlos Jr. Mich 430
Opinion op the Court Amici Curiae: Bursch, General, John J. Schuette, Attorney
Bill Sands, Attor- Assistant General, and Mark G. Solicitor Attorney General, General. for ney Farnen. David Scott L. for James Howard cases, consider we consolidated J. In these Viviano, variable under offense assessment proper abuse).1 (OV) our Specifically, physical (aggravated under OV 7 constitutes conduct type on what focus is fear and increase “conduct In both during the offense.”2 anxiety a victim suffered the defendants’ cases, concluded that circuit courts assessing 50 respective supported 777.37(l)(a). We conclude to MCL pursuant “conduct of the phrase plain meaning anxiety a victim the fear and substantially increase defen- encompasses offense” both during suffered carjack- shotgun Hardy’s racking act of dant during an violent behavior defendant Glenn’s ing and the circuit Accordingly, we affirm robbery. armed Glenn, In we reverse Hardy. decision court’s remand Appeals of the Court judgment of defendant court for reinstatement case the circuit of sentence. July 22, judgment Glenn’s HISTORY I. AND PROCEDURAL FACTS A. PEOPLE HARDY Hardy accomplice and an defendant July his car. man, just who had exited approached 1 MCL 777.37. 777.37(1)(a). *5 People y Hardy 435
Opinion of the Court man, it,3 a at the pointed shotgun racked and demanded the man him he The give everything had. man the grabbed shotgun barrel the and tried wrench it Hardy’s him, out grasp, Hardy overpowered but and Hardy and his drove the accomplice off in man’s vehicle. Police arrested both men few hours later.
Hardy pleaded guilty to one count of At carjacking.4 sentencing, the prosecutor argued that the circuit court should assess 50 for OV 7 Hardy because had not only displayed shotgun, but had pointed also it at the victim prosecutor and racked it. The claimed that the racking shotgun act of was “conduct designed only to threaten the victim with immediate violent death.” agreed scoring, Defense counsel “I stating, can- argue that, with your Honor.” Accordingly, the court circuit assessed 50 points for and sentenced to 12 Hardy years’ to 50 imprisonment.
Hardy filed a motion for resentencing, challenging the claiming that defense counsel had been constitutionally ineffective consenting for to it. motion, circuit court the denied concluding that the 50-point score under OV 7 was proper defense counsel was not constitutionally ineffective. delayed After filed a application for leave to appeal Court Appeals, majority of panel denied leave grounds for lack of merit presented.5 However, the dissenting judge would have remanded for resentencing ground on that the circuit court incor- rectly scored 7.OV shotgun pull To “rack” a weapon along is to slide forestock, push original position. then it back to its See United States
Army 9-1005-338-13&P, “Mossberg 12-Gauge Technical Shotgun Manual 500/590,” Model 0004 00-2 4 MCL 750.529a. 5 People Hardy, unpublished Appeals, Court order of the entered (Docket 306106). November No. MICH430 op the Court circuit whether to consider
We leave granted because for OV 7 erroneously court assessed carjacking shotgun during Hardy racked waiving was ineffective defense counsel whether this issue.6 v GLENN
B PEOPLE
*6
accomplice
and an
defendant Glenn
August
In
He carried what
station convenience store.
gas
entered a
shot-
described as a “sawed-off
employees
store
later
two
employees
approach
of the
to
ordered one
gun.”7 Glenn
so,
did
Glenn struck
employee
As the
the front counter.
weapon.
butt of
of the head with the
him the back
that
knocked him to the
so
it
The blow was
forceful
both
behind
employees
Glenn then forced
ground.
Glenn
out
money,
grabbed
which
counter and demanded
employee
He
the second
register
safe.
hit
cash
his
before
weapon
the head with
butt of
in the side of
in a
car. Soon
waiting getaway
his
fleeing
accomplice
with
getaway car and arrested
afterward,
police stopped
injuries.
employee
any
suffered
Glenn. Neither
robbery8
one
of armed
guilty
Glenn
to
count
pleaded
At
dangerous weapon.9
with a
and one count
assault
striking
that
prosecutor argued
sentencing,
them
designed
“get
to
employees
weapon
with the
was
afraid,”
faster, to
and that this was sufficient
to move
People Hardy,
fled the station. Court for assess OV 7 because involved “con- duct fear increase the a victim suffered the offense.” The agreed circuit court with the prosecutor assessed 50 points for OV 7 over objection. defense counsel’s circuit court then sentenced defendant to 15 to 30 years’ for imprisonment robbery the armed and 18 to 48 months’ imprisonment for the felonious assault.10 In a published opinion, the Court of Appeals vacated sentence defendant’s and remanded for resentencing. The Court acknowledged Glenn, by striking the employees, used more than “strictly violence nec an essary” complete robbery.12 armed But the Court of Appeals concluded that the circuit erred court be cause only OV 7 was to be “meant scored in particularly egregious torture, cases involving brutality, or similar to substantially increase the victim’s fear, in every case in which some fear-producing action beyond bare minimum necessary to commit the crime was undertaken.”13 granted
We leave to appeal consider whether the circuit court erroneously assessed 50 *7 because Glenn committed “assaultive acts beyond those necessary to commit the offense.”14
II. STANDARD OF REVIEW
We take this
opportunity
clarify
applicable
standards of review for a sentencing guidelines scoring
10
Appeals
incorrectly
Court of
robbery
stated that Glenn’s armed
years
prison. People Glenn,
sentence was 18 to 30
in
App
v
295 Mich
(2012).
530;
12 Id.
13 Id.
14
(2012).
Glenn,
People v
438 Opinion of the Court an stated that Glenn, Appeals the Court of issue. scoring court’s of “reviews a trial appellate court trial whether determine sentencing guidelines its discretion whether properly exercised court supports particular adequately record evidence imprecise applicable statement of This is an score.”15 law. before, the abuse of discretion explained
As we have
review.16
formerly predominated,
sentencing
standard
sentencing guide-
Legislature
But when the
enacted
for
detailed instructions
prescribed
lines
sentences,
circum-
thereby reducing the
imposing
discretion
judge
stances under which
could exercise
during sentencing.17
sentencing guidelines,
Under the
factual determinations are reviewed
the circuit court’s
must
supported
preponder-
for clear error and
be
facts,
found, are
Whether the
as
ance
the evidence.18
prescribed
conditions
adequate
satisfy
law,
statute,
facts to the
is
i.e., the
application
statutory
appellate
which an
question
interpretation,
court
de novo.19
reviews
15 Glenn,
App at 532.
295 Mich
16
(2003).
247, 253-254;
People Babcock,
v
Mich
People Phelps, NW2d 732 v 288 Mich (2006). Endres, 414, 417; App This statement 711 NW2d govern “any of a evidence” standard does not review incorrect. The findings purposes assessing points under circuit court’s factual sentencing guidelines. Babcock, Mich at 253 *8 v Opinion op the Court cases, we these clear error the review factual findings the defendants’ conduct designed substantially anxiety increase the fear and of their whether, We de victims. review novo these acts were points sufficient assess 50 for OV 7.
III. ANALYSIS (OV 7) A. INTERPRETING MCL 777.37 As before, we have stated our goal interpreting a “is to give statute ascertain and effect to the intent of Legislature. The touchstone of legislative intent the statute’s If language. the statute’s language is clear and unambiguous, we assume that the Legislature intended plain its meaning and we enforce the statute as written.”20 777.37(1)
MCL 777.37 governs OV 7. MCL provides, in full:
(1) aggravated Offense physical variable 7 is abuse. Score offense variable determining which of the following apply by assigning points the number of attributable to highest the one that has the number of points: (a) A sadism, victim torture, was treated with or exces- brutality sive substantially or conduct increase anxiety the fear and during a victim suffered the of- fense .......................................................................50
(b) No sadism, victim was torture, treated with brutality excessive
increase
the fear and
a victim suffered
offense......................................................................0
A trial court can properly assess 50 points under OV
7 if it finds that a defendant’s conduct falls under
one
People Gardner,
50;
(quotation
440 the Court (1)(a). conduct listed subsection categories the four categories the three any first contends party No in these brutality) applies (sadism, torture, or excessive category— the Thus, focus is on fourth our cases. designed to in “conduct engaged defendants whether anxiety a the fear victim substantially increase offense.”21 during the suffered “sadism,”22 statute does define than the Other we categories, in the listed so terms used the individual words to intended for the Legislature that the presume the Thus, turn to ordinary meaning.23 we have their the terms used dictionary interpreting for guidance in- substantially “conduct phrase: fear a victim suffered anxiety crease offense.”24 “conduct de- begins with the words phrase “to intend for a definite means
signed.” “Designed”
Thus,
“designed” requires courts
the word
purpose.”25
con-
motivating
intent
the defendant’s
evaluate
in-
Next,
“substantially
to the words
duct.26
we come
ample
“of
or considerable
crease.” “Substantial” means
size,
“to
amount,
etc.”27To “increase” means
quantity,
21
777.37(1)(a).
MCL
22
777.37(3).
MCL
23 MCL 8.3a.
24
(2006).
636, 641;
Peals,
People v
Jory, Mich For NW2d judge find his for a does not have to verbalize intentions defendant designed to a victim’s fear or was elevate that the defendant’s conduct Rather, indirectly by examining the anxiety. can infer intent a court proven prepon that was evidence in record circumstantial derance of evidence. Dictionary College Random House Webster’s Hakdy Opinion of the Court size, greater, number, make as in or strength, quality; augment.”28 these Applying definitions relevant text, we conclude that it is to assess under proper OV 7 for conduct that was intended to make a victim’s fear anxiety greater by or a considerable amount.29 Glenn, erred Appeals ignoring Court Legislature’s second use of the word “or” in the provi 777.37(1)(a), sion issue. “[a] at victim reads: sadism, torture, with brutality treated excessive increase fear and victim “Or” word suffered[.]”30 is a “used to disunion, indicate a separation, an alternative.”31 *10 While the first may interpreted “or” be as linking first in categories series, three a common the second “or” the last separates category from the series Thus, precedes that it. of “or” use before the phrase designed” “conduct shows that this an phrase is inde pendent clause independent that has an meaning. The Appeals Court of in Glenn therefore erred interpret ing the statute in a manner inconsistent with plain its meaning.
The Court Appeals of erred in also Glenn to the extent it inherently concluded that “circumstances in present the crime must for purposes be discounted of 28Id. 29 terms, note that We the statute’s own is on focus the intended conduct, effect of the its People not actual effect on the victim. v Accord 187, (2005) (“Points
Kegler,
191;
App
268 Mich
scoring an OV”32To
inherent
may consider conduct
courts
prohibition,
sentencing
The
scoring
variables.
when
offense
crime
disregard
certain
direct courts
explicitly
guidelines
1, 3, 8,
when
OVs
inherent
in a crime
Guide-
cases,
Sentencing
In all
“the
11, and 13.33
other
the crime
factor that
is an element of
lines allow a
an
computing
when
charged to also be considered
for the
score.”34 It was error
Court
offense variable
Glenn.
imply
to state
otherwise
Appeals
Appeals
the Court of
However,
agree
we
with
“
the infliction
against
person
. . crimes
involve
[a]ll.
Since the
anxiety.”35
of fear and
of a certain amount
a defen-
designed” category only applies
“conduct
when
substantially increase
conduct was
dant’s
fear,
category,
for OV under this
to assess
for
first determine
baseline
the amount of
court must
type
anxiety experienced by
fear and
a victim
32Glenn,
Appeals
App
Mich
relied on
at 535.
Court
Hunt,
317; 326;
(2010),
App
for this
to commit offense.37 the court closely pertinent evidence, should examine the record including actually how the crime was committed above, defendant. As noted evidence which satis- disregarded fies an element of an offense need not be solely Instead, for that reason. all relevant evidence closely should be examined to determine whether the engaged beyond defendant in conduct the minimum necessary crime, to commit whether is probable more than not that such in- conduct was anxiety tended make the victim’s fear or increase by a considerable amount. summary, we conclude that a defendant’s conduct “similarly egregious”
does have to be “sadism, brutality” torture, or excessive for OV to be at scored points, express statutory prohi- and that, absent an may inherently bition, courts consider circumstances present in the crime when OV 7. The relevant inquiries engaged are whether the defendant beyond required the minimum to commit the scored for against all offenses as classified “crimes 777.22(1). person.” category encompasses This of felonies spectrum ranging may broad from crimes those cause little or anxiety during offense, that, no fear and to a victim to those crimes very nature, great their tend cause a deal fear and a victim the offense. acknowledge We that courts cannot calculate this “fear baseline” certainty. However, precision with mathematical required such is not merely against because it serves as a benchmark which to measure intended increase fear associated with defendant’s conduct. *12 494 430 444 MICH Court of the (2) in- so, the conduct was offense; and, if whether by a greater a or make victim’s fear tended to amount.38 considerable TO HARDY
B. APPLICATION
plea
record, including Hardy’s
in the
own
Evidence
a
at the
shotgun
that he
colloquy,
pointed
established
racking
racked
of
purpose
and then
it.
victim
from the
a new
of ammunition
shotgun
pull
is to
round
firing
and slide it into the
chamber.39
magazine tube
ready
it
to fire.40
Racking
weapon
makes
went
racking
shotgun
We
consider whether
first
necessary
commit a
beyond the minimum conduct
A
“in the course of com-
carjacking.
carjacking occurs
so,
doing
of a
While
mitting
larceny
vehicle[.]”41
motor
(1)
(2)
violence,”
use
“force or
“the
a defendant must
violence,”
any
or
“in fear
put
threat of force or
person
possession
or
in lawful
operator, passenger,
vehicle,
any
lawfully
person
attempting
the motor
Hardy
recover
vehicle.”42
threatened his
the motor
38
purpose
sentencing guidelines
proportion
One
is to facilitate
247, 263;
Babcock,
People v
Hardy argues that he racked shotgun solely for the purpose getting his to to comply, victim not substan- tially increase his victim’s fear. a racking shotgun But under these only circumstances if urges compliance doing imminent, so makes the fear victim violent death if he or Hence, comply. she does not even if Hardy’s goal ultimate behavior, provoke compliant was to a preponderance of the evidence shows that his conduct was substantially increase fear beyond of his victim usual level accompanies carjacking, to the point where the victim feared imminent death.
Because took extra step racking the shotgun, and did because he so to make victim his fear that a violent death imminent, just possible, circuit court properly assessed 50 for OV 7.
“Ineffective assistance predicated counsel cannot be on the failure to make a frivolous or meritless motion.”43 Because the circuit court properly scored OV any objection to the court’s assessment of would have result, been Hardy’s meritless. As a counsel did not provide ineffective by failing object assistance scoring.
C. APPLICATION TO GLENN
Turning
case,
begin
to Glenn’s
we
again
consid-
Remand),
People Riley (After
135, 142;
ering went whether this robbery.44To commit commit an armed necessary to engage proscribed “in conduct crime, defendant must statute, robbery 750.530,]” Michigan’s under [MCL any against “force or violence using which criminalizes assaulting or larceny at a or present” person who com- fear[,]” “in the course of person “the putting robbery, armed mitting larceny.”45To commit an “ (1) a dangerous possess must also either defendant in a or manner weapon an article used fashioned article reasonably believe the any present lead person “orally or weapon,” represent is a dangerous dangerous of a possession that he or she is otherwise store, could To rob the convenience Glenn weapon[.]”46 orally represent- have the victims fear simply put Instead, he chose to threaten ing weapon. that he had appeared to be a sawed-off the victims with what *14 different victims shotgun, and then used it to strike two Hence, that beyond in the Glenn’s conduct went head. robbery. to commit an armed necessary We consider this conduct was next whether by anxiety to the fear or victims increase in the By striking employees amount. considerable head, both of knocking ground, forcing one to the counter, demonstrated them behind the store Glenn his willing through that he follow on his victims them, placed place harm and he them in a threat sentencing scoring exclusively OV 7 on Glenn’s court based its robbery, during during not on his conduct conduct armed addition, argue subsequent prosecutor felonious assault. does underlying merited OV that the the felonious-assault conviction scoring. Accordingly, that conduct could we do not consider whether independent 7 in case. an basis for Glenn’s have formed 750.529; MCL 750.530. 46MCL 750.529. Hardy Opinion op the Court im- escape was almost vulnerability, where increased Glenn, that like more than not probable It is possible. his victims frighten in this conduct to Hardy, engaged the fact that can infer this from compliance. into We monetary making while employees Glenn assaulted his designed to elevate demands. His conduct was accompanies that an fear from the concern victims’ (the fear that a criminal will become unrealized threat violent), accompanies to the concern that actualized (the cause fear that an attacker’s blows will violence death). This a considerable injury or constitutes amount of additional fear. that beyond necessary
Because Glenn’s conduct went he in- robbery, to effectuate an armed because tended for his conduct to increase the fear of his victims amount, by a considerable the Court of erred Appeals incorrectly that the circuit court assessed 50 holding points for OV 7.
IV CONCLUSION We hold that because a of the evidence preponderance racked to increase the shotgun established that amount, fear of his victim a considerable the circuit by finding properly court assessed 50 conduct of it at Hardy’s racking shotgun pointing while the victim constituted “conduct increase the fear and a victim suffered Accordingly, offense.” we affirm the circuit court’s assess- in Hardy. ment of 50 for OV 7 preponderance We further hold because that Glenn struck two victims with evidence established *15 shotgun, the butt of what to be a sawed-off appeared ground, knocked one and forced both victims victim imminent, them fear behind a store counter to make death, the circuit court injury appropriately serious 494 Mich Concurring Opinion by McCormack, J. Glenn, assessed 50 for 7. In we reverse the points Court of and remand case to the circuit court Appeals judgment for reinstatement of the of sentence.
Young, C.J.,
Markman,
Kelly,
Zahra,
JJ.,
J.
McCormack,
Viviano,
concurred with
J.
I
(concurring).
join Justice Vmano’s
McCormack,
in
I
opinion
goes
full because believe that it
as far as it can
provide
possible guidance
to
the best
for trial courts
charged with
in
applying
statutory language at issue
this case. I
separately
encourage
Legislature
write
(OV)
777.37,
define,
to amend MCL
offense variable
more clearly
articulate its intent
in
including,
language “conduct
substantially increase the
fear and
a victim suffered
offense.”
Legislature
adopted
sentencing guidelines to
promote uniformity
sentencing.1 However,
view,
in my
potential
subjectivity
for
inherent
in the “conduct
designed” language
likely
is
to cause disparate outcomes
criminal
defendants in this state
guiding
even with the
principles today’s
provides.
decision
Such a result is trou-
bling. Given that
an
all-or-nothing
proposition
versus 50
that a
—zero
—and
50-point increase
a defendant’s
likely
OV score is
in significant
result
in a
increase
defendant’s minimum
sentence,
clarity
the need for
and consistency in its
scoring is
if
paramount
courts are to administer justice. As
Legislature
appears poised to revisit the sentencing
guidelines
future,21
the near
believe that these cases
illustrate that OV 7 is an excellent example of one area
Smith,
292, 312;
Opinion by Cavanagh, J. and scrutiny hopefully, benefit from further that could elucidation. further exists, the law as charged interpreting
We are with however, opinion I believe that Justice VlVIANO’s and statutory much the faithfully clarity does so with as as I permits. join majority opinion therefore language entirety. in its in
Cavanagh, part, dissenting part). J. in (concurring I that the standard of majority proper concur with that the trial sentencing guidelines review under is determinations are for clear court’s factual reviewed supported by preponderance error and must be Osantowski, 111; v 481 Mich People evidence. (2008). NW2d respectfully majority’s interpreta-
I
from the
dissent
(OV) 7,
777.37, however,
tion of offense variable
majority
by holding
I believe that the
errs
because
phrase
“conduct
increase
the fear and
a victim suffered
interpreted
offense” must be
without reference to the
three categories
other
under which OV 7 can be scored:
sadism, torture,
brutality.
reaching
and
its
excessive
conclusion, the
and
majority ignores
history of OV 7
777.37,
only
fails to consider not
of MCL
entirety
variables,
but also the
scheme of all offense
statutory
Contrary
position,
MCL 777.31 et
I
seq.
majority
designed” category
would hold that the “conduct
of OV
light
of the other three
interpreted
7 should
statute,
categories within the
and thus must be of
sadism, torture,
brutality.
as
same class
excessive
I. SENTENCING GUIDELINES GENERALLY
sentencing guidelines,
The current
MCL 777.1 et
The
seq.,
purpose
were enacted
1998.
sentenc-
494 MICH 430
Cavanagh,
J.
sentencing.
is to facilitate
ing guidelines
proportionate
Smith,
292, 305;
II. HISTORY OF OV 7 7) (OV originally As enacted in MCL 777.37 stated:
(1) aggravated physical Offense variable 7 is abuse. Score by determining following apply offense variable 7 of the which by assigning points and the number of attributable one highest points: that has the number of (a) terrorism, sadism, torture, A victim was treated with brutality............................................50 points or excessive (b) terrorism, sadism, victim treated No with tor- ture, brutality.....................................0 points or excessive
(2) As used in this section: (a) designed substantially ‘Terrorism’ means conduct anxiety during increase the a victim fear suffers offense. People Hardy
Opinion by Cavanagh, J. (b) subjects conduct that a victim to ‘Sadism’ means prolonged pain or humiliation and is inflicted to extreme or gratification. produce suffering [Em- or for the offender’s phasis added.] April MCL 777.37 was amended to its current
version to state:
(1) aggravated physical Offense variable 7 is abuse. by determining Score offense variable 7 which following apply assigning points the number of highest attributable to the one that has the number of points:
(a) sadism, torture, A victim was treated with or excessive brutality substantially or conduct increase the anxiety during a victim ......50 fear suffered offense (b) sadism, torture, No victim was treated with brutality excessive
increase the fear and a victim suffered offense......................................................................0 (2) person placed danger Count each who was injury or loss of life as a victim. section, As used in this “sadism” means conduct that
subjects prolonged pain victim to extreme or or humilia- produce suffering tion and is inflicted to or for the offend- *18 gratification. [Emphasis added.] er’s Notably, amendment, before the 2002 the word “terror- ism” was defined as “conduct to substantially increase the fear and a victim suffers offense” —the exact language of the current “conduct designed” in category the amended version of 7.OV 7, Concurrent with the 2002 amendment OV a new created, 20, 777.49a, offense variable was OV which directs for an act terrorism. It is important recognize incorporates that OV 20 a dif- ferent definition for “act of than that terrorism” which in preamendment existed for “terrorism” version of 494 MICH430 Opinion by Cavanagh, J. 20, an “act of terrorism” is defined 7. Under OV OV in Michigan the definition set forth referring to 750.543b, Act, MCL which was also Anti-Terrorism in enacted 2002. 750.543b, of MCL the amendment of The enactment part and the enactment of OV 20 were Legislature made in comprehensive changes 11, 2001, 2002 PA attacks. response September Gershel, & The 113, 137; also, see Woodside USA Patriot Act and Anti-Terrorism Laws: New Michigan’s Make Sweeping Changes, Anti-Terrorism Laws (2003) B of both (describing key components J 20 Michigan legislation passed response and Federal 9/11); Gillespie, Michigan 2B Criminal Law & Proce- (2d ed), 38A:1, pp (summarizing § dure 521-528 by Michigan in legislation passed response antiterrorist 9/11). changes The also reflect a shift in conceptual meaning Young, Defining of “terrorism.” Terror- Legal Concept ism: Evolution Terrorism as International Law and its on Influence Definitions Domestic 29 BC Int’l L Legislation, Comp & Rev “terrorism,” traditionally (explaining stigmatization, evolving term of into a com- political term); Williams, legal see also & What is plex “Terrorism”?: Domestic Assessing Legal Definitions,
1 An act of terrorism is defined under MCL 750.543b as follows: (a) “Act of terrorism” means a willful and deliberate act that is following:
all of the (i) felony An act that would be a violent under the laws of this state, whether or not committed in this state. (ii) person An act knows has reason to know is dangerous to human life. (Hi) An act that is intended to intimidate or coerce a civilian government population or influence or affect the conduct of or a through government unit intimidation or coercion. *19 Opinion by Cavanagh, J. 77, 155 UCLA J Int’l L Aff Foreign & (explaining that various international bodies have their developed “terrorism”). respective definitions III. STATUTORY ANALYSIS OF OV 7 with, To I begin agree with the majority that phrase designed” “conduct in OV 7 “requires courts to evaluate the intent motivating the defendant’s con- Indeed, duct.” Ante at 440. the fact that the “conduct designed” category focuses on a intent, defendant’s sadism, torture, whereas and excessive brutality con- cern the nature of a conduct, defendant’s is what gives designed” “conduct category meaning independent of the other categories three Thus, OV 7. my primary disagreement with the majority lies with its interpreta- tion of the phrase “substantially increase the fear and anxiety a victim suffered the offense.”
While it is true that our rules of statutory construc- tion dictate that designed” “conduct category be interpreted as an “independent clause that has an independent meaning,” ante at rule is not violated by allowing sadism, torture, and excessive brutality categories to educate our understanding of the conduct category. As explained previously, the fact that the categories focus on the defendant’s intent ensures that it meaning has indepen- dent of the other three categories, which consider the nature of the defendant’s conduct.
Moreover,
long
we have
recognized that “[although a
phrase or a statement
mean
may
thing
one
when read
isolation,
may
mean something
dif-
ferent
context,”
when read in
and we have accordingly
held that
seeking
“[i]n
meaning, words and clauses will
not be divorced from those
precede
which
and those
which follow.” G C Timmis & Cov Guardian
Co,
Alarm
*20
Mich 430
by
Opinion
Cavanagh, J.
(citation
421;
and
416,
Mich
quotation If overstated. the “conduct in these cases cannot be without reference designed” language is considered “conduct de- listed OV the the other conduct to include con- category interpreted could be signed” sadism, torture, from that differs duct brutality thereby permit scoring points excessive conduct. widely divergent under 7 on the basis of OV view, interpretation cannot be the of OV my proper this result in approach disproportion- 7 because that would to one of the moti- sentencing, contrary principal ate legislative behind the enactment of the vating factors sadism, torture, and ex- sentencing guidelines —where conduct, the brutality speak very egregious cessive all designed” of the “conduct majority’s interpretation category require nearly egregious as does Therefore, catego- a defendant. order for all four independent meaning ensuring ries to have while also sentences, in disproportionate that OV 7 does not result category be designed” interpreted the “conduct must torture, sadism, of the same class as and excessive brutality. majority argues proper this is not
interpretation presence of OV 7 because of the of a 777.37(1)(a).2 ma Specifically, second “or” in MCL that “or” is a “used to indicate a jority explains word disunion, inter separation, an alternative” thus 777.37(1)(a) “or” in MCL to evidence prets second Legislature’s “separateü intent last OV 7 from the it.” Ante at 441. category precedes series 777.37(1)(a) part: “[a] MCL states in relevant victim was treated with sadism, torture, brutality or excessive or conduct to substan tially increase the fear and a victim suffered the offense.” Emphasis added. Hakdy Cavanagh, J. Yet when considering historical development already II, discussed in part majority’s heavy reliance on the second “or” in entirely OV 7 to divorce designed” the “conduct category from the other three categories of conduct listed OV 7 is even more questionable.
Although I agree with the majority that it is the Legislature’s role to determine types “what of conduct warrant similar under 777.37,” ante at view, 444 n in my history of OV 7 evidences Legislature’s in crafting intent the current version of MCL 777.37. As previously explained, the addition of *21 part OV 20 was of Michigan’s antiterrorism efforts. an Adding offense variable addressing dedicated to terrorist activity necessitated the removal of the word 7, “terrorism” in OV which addresses conduct of a wholly different character than OV Legislature, 20. The responding to the shifting legal terrorism, definition of simply replaced the word “terrorism” with what had been the definition of terrorism under preamend- ment version of OV 7. The amendment, therefore, was necessary to accommodate changes in the law outside of OV 7 the Legislature’s manifests intent to maintain preamendment OV 7’s meaning light in of the changing definition of “terrorism” and the addition of OV 20. Accordingly, view, in my Legislature did not intend change meaning and, thus, OV 7 the prea- mendment version of OV 7 is highly instructive in determining the proper interpretation of the current version of the statute.
Notably, preamendment version of provided OV 7 a comma-delineated list separated by single “or,” which even the majority admits should interpreted be link the in categories a common Timmis, series. See G C Mich 421-422, at (noting that grouped “words 494 Mich Cavanagh, J. marks meaning”) (quotation related given be
list should
States,
omitted),
Beecham v United
citing
and citation
1669;
L Ed 2d 383
371; 114 S Ct
511 US
(“That
coun-
share an attribute
items in a list
several
possess-
other items as
interpreting
in favor of
sels
well.”). Terrorism, which was
as
that attribute
ing
meaning as the current
the same
statutorily given
included in the afore-
category, was
designed”
“conduct
and,
categories,
the other three
mentioned list with
meaning.
a related
thus,
given
intended to be
sadism,
torture,
and excessive
Accordingly, because
conduct, I
believe
brutality
speak
egregious
all
speaks
similarly
also
designed” category
the “conduct
recognize
I
that when
Although
conduct.
egregious
additional
inserted an
amending
Legislature
OV 7 the
“or”
“or,” I
the addition of
second
believe
Cf.
weight
little
this situation.
given
should
(1916).3
370;
Harrison,
will not be deemed change the law must be evident the intention. The intent to certain; change import there must be such substantial as otherwise, intention, guides be manifest from other such or it must phraseology interpretation, of will not be or difference [Quoting 2 expressive intention.” Lewis deemed of a different (2d ed), Statutory § 401.] on Construction Sutherland Opinion by Cavanagh, J. all-or-nothing Second, I an basis. believe that it is only that the that have relevant other offense variables high killing value as 50 either a point points require as multiple penetrations sexual commission 3, 777.33; 6, 777.36; of a crime. OV See MCL OV MCL 9, 777.39; 11, 777.41; MCL MCL 13, OV OV OV MCL Third, 777.43. none of the other four offense variables (as all-or-nothing that score on an opposed basis on severity scale depending con- defendant’s duct) are similarly scored assessed for fact, 7. In potential for 50 points under OV is three higher any times than other of- all-or-nothing See, e.g., 4, 777.34; fense variable. 5, OV MCL OV MCL 777.35; 8, 777.38; OV MCL and OV MCL 777.44. view, my aspects sentencing these guidelines bolster the conclusion majority that errs in this case.
As previously explained, offense variables are scored in ranges that extend from to 100 points; thus, 50 points places under OV 7 alone halfway a defendant possible to the maximum point total under the offense variables. Accordingly, to maintain the principle proportionality upon sentencing which the guidelines based, are only particularly heinous conduct should justify scoring points under OV which is evidenced the fact that the only other conduct that commands such a score is homicide and multiple penetra- sexual tions. There sadism, can little doubt torture, and extreme brutality are heinous that the Legis- acts lature determined warrant heavy toll an all-or- nothing score of 50 points under The fact OV 7. that the first three categories require a defendant’s con- extreme, to be intense, duct comports ruthless4 with 777.37(3), defining part See “sadism” as “conduct added). subjects prolonged pain (Emphasis a victim to extreme or .. . Opinion *23 by Cavanagh, J. nature 7. and inflexible of OV high the value point designed” category Therefore, the “conduct by applying sadism, class as it is not of a similar liberally so that torture, majority’s analysis the brutality, excessive and history of statutory OV language the ignores the regarding proportionality grave raises concerns in *24 is intended generate to extreme or intense fear and anxiety the beyond anxiety fear and that to necessary is commit the crime at issue the “substantially satisfies increase” in OV 7 language only because extreme or intense fear and anxiety falls within the as same class sadism, torture, and brutality. extreme
IV APPLICATION HARDY A. APPLICATION TO Hardy, pointed defendant first a shotgun at the victim carjacking. while a committing When the victim to failed immediately comply orders, with defendant’s Thus, defendant racked the shotgun. the is question racking shotgun whether the was intended to subject the victim to extreme or intense fear and anxiety.
As the majority explains, to commit a a carjacking, (1) (2) defendant violence,” must use “force or “the violence,” threat force or or “in put the victim 750.529a(l). fear.” MCL Thus, the crime carjacking itself force, entails the use of force, a threat of or the installation of fear in the victim. Defendant accom- plished by this threatening the victim with violence pointing shotgun the at the victim and racking then the shotgun.
Although it is “merely true that displaying the weapon pointing it at the victim would have been enough threat,” a issue ante question at the is singular whether of racking act the shotgun was sufficient to instill extreme or intense beyond fear that is necessary commit the carjack- fear ing. a Admittedly, racking shotgun is intended in- fear, given crease victim’s gives that the act 494 Mich Cavanagh, J. However, I fire. cannot ready is gun that impression staring a who down person is reasonably conclude person a any more comfort than feels shotgun barrel of shotgun of a staring the barrel who down is a view of these situations in their Such presence. racked was not shotgun in the first situation that the assumes it at the pointed the defendant at some time before racked assumption any because logical is not a victim. This wrong on end of himself herself person who finds ready gun to fire likely is to assume that is shotgun death,” imminent, ante at “fear violent therefore he the defendant regardless of whether or she observed shotgun. rack the while in the
Accordingly, although racking shotgun conduct, I certainly deplorable presence victim’s carjacking racking context of a believe that *25 fear-inducing than more only minimally is shotgun Therefore, range. at a victim at close pointing shotgun “substantially was intended to defendant’s conduct fear it not sufficient the was increase” victim’s because beyond fear the and to extreme or intense instill fear necessary carjacking.5 that to commit the anxiety clearly Therefore, I hold the trial court erred would in Hardy. 50 under 7 by assessing OV B. APPLICATION TO GLENN on Glenn, employees defendant struck both in appeared shotgun with what to be sawed-off head satisfy example designed” “conduct an of conduct that would Por Mattoon, 7, category v under OV consider defendant, 276-278; (2006), App was where the who NW2d assault, possession kidnapping, of a felonious and firearm convicted felony, girlfriend gunpoint during his at for over the commission of held her, gun hours, repeatedly to kill removed bullets from threatened them, they name on and told to think about what told had her her her yellow tape came to around the house. be like when her son home would People Habdy Cavanagh, J. committing the course of an robbery. armed When defendant struck the second employee head, on the already defendant had money obtained both employees wholly were compliant. Striking the second once defendant employee already had effectuated the merely crime evidenced that defendant was not threat- harm, ening physical but was in fact willing physi- cally harm the their employees despite compliance. This additional use of robbery entirely force unnecessary for the crime’s successful commission and “substantially was thus intended to increase” the vic- anxiety tims’ fear and by subjecting them to intense extreme fear and anxiety beyond what was necessary commit Therefore, the offense. agree I with the major- ity that the trial court did not err clearly when assess- ing under OV 7 Glenn.
V. CONCLUSION I disagree majority with the because it errs holding that the phrase “conduct to substan- tially increase the fear of the victim” must be interpreted independently and without reference the other three categories under which 7 can be so, scored. In doing majority fails to consider the “conduct designed” category light entirety statute, the sentencing guidelines statutory scheme, and the history Instead, 7OV statute. I would hold that to be properly scored under OV “conduct increase the fear and anxiety of the victim” must rise to the same class as *26 sadism, torture and brutality, excessive and that defendant’s conduct must have been intended to cause a victim intense or extreme anxiety beyond fear and fear and anxiety necessary that is to commit the crime at issue. notes her concur- sentencing, as Justice MCCORMACK ring opinion. hand, argues majority reasonably the the On other designed” category that the bar for the “conduct all category meaning that the loses high cannot so Accordingly, other the comparison categories. that “conduct that majority’s requires conclusion anxiety greater a fear or was intended to make victim’s amount,” ante, fa- appears at considerable reasonable, cially given phrase that “considerable dictionary from a definition of the amount” derived However, majority’s “substantially.” given word categories how other of conduct refusal consider de- meaning in OV 7 “conduct influence phrase “considerable amount” is signed” category, vague concept little because rather assistance it is and too in application. broad Instead, amendatory history I hold that would intent that the “conduct legislative OV 7 evidences designed” category only include conduct that is of categories other three of conduct same class as the I Working premise, listed 7. from that would only be assessed further hold that defendant should category if designed” under “conduct of OV 7 the defen- preponderance evidence shows ed) (11th Collegiate Dictionary (2011), See also Merriam-Webster’s defin- coerce, punish, ing pain... intense infliction of “torture” as “the unfeeling.” ruthless “grossly pleasure,” afford sadistic and “brutal” as added). (Emphasis Cavanagh, J. to dant intended increase the fear victim’s I anxiety. Finally, would hold that only