PEOPLE v MCGRAW
Docket No. 132876
Supreme Court of Michigan
Decided July 28, 2009
484 Mich 120
Argued May 5, 2009 (Calendar No. 2).
In an opinion by Chief Justice KELLY, joined by Justices CAVANAGH, MARKMAN, and HATHAWAY, the Supreme Court held:
Offense variables are properly scored by reference only to the sentencing offense unless a particular offense variable statute specifically provides otherwise. In this case, breaking and entering the building was the sentencing offense. The statute for OV 9 does not provide for consideration of conduct that occurred after the completion of the sentencing offense. The sentencing court erred by considering the entire criminal transaction and using the defendant‘s flight from the police after he completed the sentencing offense when it scored the offense variable. Considering only the defendant‘s conduct involved in breaking and entering an unoccupied building, the sentencing court should have assessed zero points for OV 9 because no one was placed in danger.
Justice CORRIGAN, joined by Justices WEAVER and YOUNG, dissenting, would hold that the defendant waived his challenge to the scoring of OV 9 when his attorney stated at sentencing that the guidelines minimum sentence ranges for his offenses “appear to be correct.” The defendant‘s counsel did not provide ineffective assistance of counsel by doing so because the caselaw in effect at the time of sentencing and the record both supported assessing 10 points for OV 9. The rule established by the majority opinion artificially limits, for purposes of sentencing, the duration of an offense to the time necessary to complete the elements defining the offense and disregards the well-established res gestae principle that considers the entire transaction or uninterrupted chain of events surrounding the commission of an offense.
SENTENCES — SENTENCING GUIDELINES — OFFENSE VARIABLES — SCORING OF OFFENSE VARIABLES.
Offense variables under the sentencing guidelines must be scored by reference only to the offense for which the defendant is being sentenced unless an offense variable statute specifically provides otherwise and allows consideration of conduct beyond the sentencing offense (
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) for the defendant.
Amicus Curiae:
Brian A. Peppler and Timothy K. Morris for the Prosecuting Attorneys Association of Michigan.
KELLY, C.J. 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
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.
FACTS AND PROCEDURE
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
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 PROPER APPROACH TO SCORING OFFENSE VARIABLES
The interpretation and application of the legislative sentencing guidelines,
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 senten-
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
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
We concluded that the sentencing court did not err by finding that the person near the woman when the perpetrator stole her purse was “placed in danger of injury or loss of life” by the armed robbery.26 Therefore, he was a victim under OV 9.27
Reading the provisions of
This does not mean that transactional conduct may never influence a defendant‘s sentence. Such a result would frustrate the Legislature‘s intention of having the guidelines promote uniformity in sentencing. Nothing precludes the sentencing court from considering transactional conduct when deciding what sentence to impose within the appropriate guidelines range and whether to depart from the guidelines recommendation. As this Court explained in People v Babcock,
in considering whether to depart from the guidelines, the trial court must ascertain whether taking into account an allegedly substantial and compelling reason would contribute to a more proportionate criminal sentence than is available within the guidelines range. In other words, if there are substantial and compelling reasons that lead the trial court to believe that a sentence within the guidelines range is not proportionate to the seriousness of the defendant‘s conduct and to the
seriousness of his criminal history, the trial court should depart from the guidelines.30
In addition, of course, the prosecution is always free to charge a defendant with multiple offenses if they exist, rather than a single offense. The defendant then would be sentenced for all offenses for which a conviction was obtained.31 Our decision today “not only respects the defendant‘s right to be sentenced on the basis of law, but it also respects the trial court‘s interest in having defendant serve the sentence that it truly intends.”32
A defendant is entitled to be sentenced according to accurately scored guidelines and on the basis of accurate information.33 A sentence is invalid when a sentencing court relies on an inappropriate guidelines range.34 “[A] sentence that is outside the appropriate guidelines sentence range, for whatever reason, is appealable regardless of whether the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand.”35 However, in this case, the issue was raised in a motion for resentencing.36
The Court of Appeals concluded that assessing 10 points under OV 9 was proper because of defendant‘s conduct after the breaking and entering had been completed. Specifically, the Court of Appeals upheld the OV 9 score because “in leaving the scene of the crime, defendant was pursued by a police officer for whom he had failed to stop.39 He ultimately crashed his car,40
We conclude that the Court of Appeals erred by considering the entire criminal transaction and using defendant‘s conduct after the crime was completed as the basis for scoring OV 9. Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.43 OV 9 does not provide for consideration of
When we consider only the breaking and entering, it is apparent that no one was placed in danger of injury or loss of life. No one was present in the general store or anywhere near the defendant when he broke into the building.44 Even under the current version of OV 9,
CONCLUSION
Offense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise. The language of the statute for OV 9 does not so provide.
In this case, the sentencing court scored OV 9 by including defendant‘s conduct in fleeing from the police after his offense of breaking into and entering an unoccupied building was completed. His flight from the police should not have been used in scoring OV 9. The sentencing court should have assessed zero points for OV 9 because no one was placed in danger during the breaking and entering.
Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the circuit court for resentencing.
CORRIGAN, J. (dissenting). The majority holds that the sentencing court erred by scoring 10 points for offense variable (OV) 9 (number of victims),
I respectfully dissent for three reasons:
(1) Defendant waived his challenge to the scoring of OV 9 when his attorney stated at sentencing that the guidelines minimum sentence ranges for his offenses “appear to be correct.”
(2) Defense counsel was not ineffective in agreeing with the guidelines calculations because the caselaw in effect at the time of sentencing supported the OV 9 score.
(3) In any event, the sentencing court did not err in scoring OV 9. The record supported the court‘s finding that two persons were placed in danger of injury when defendant‘s getaway vehicle crashed into a fence. In prohibiting consideration of defendant‘s escape attempt, the majority invents a new “elements-only” test for scoring the offense variables. This new rule artificially confines the duration of an offense to its definitional elements for the purpose of sentencing. This unprecedented approach to scoring the sentencing guidelines disregards the well-established res gestae principle that looks to the entire transaction or uninterrupted chain of events surrounding the commission of an offense.
Consider, for example, a defendant who breaks into a woman‘s home, rapes her, and then, immediately after the rape, severely beats her and threatens her with a knife he found in her home. The defendant is convicted of first-degree criminal sexual conduct. Under today‘s decision, the defendant cannot be assessed any points under OV 1,
Or to take another example, suppose a defendant kills a young woman, dismembers her body, and then, three days later, sends photographs of the dismembered body parts to the victim‘s parents, which requires them to undergo psychological counseling as a result of seeing the photographs. The defendant is convicted of first-degree murder. Under the majority‘s new elements-only rule, the court cannot assess any points under OV 5,
Waiver is the intentional relinquishment or abandonment of a known right. People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). It differs from forfeiture, which is the failure to timely assert a right. Id. A waiver extinguishes the alleged error, thus foreclosing appellate review. Id. at 215, 219. In Carter, we held that no reviewable error existed because defense counsel had “clearly expressed satisfaction with the trial court‘s decision to refuse the jury‘s request [to rehear testimony] and its subsequent instruction.” Id. at 219.
Here, the court asked defense counsel at sentencing if he had received the sentencing information report indicating a guidelines minimum sentence range of 29 to 114 months. Defense counsel responded, “Yes, Judge, and they appear to be correct.” Defendant did not take issue with counsel‘s statement. Thus, the record reflects that the defense expressed satisfaction with the guidelines range, the calculation of which included the scoring of OV 9 that defendant now challenges on appeal. Because the issue has been waived, the alleged error is extinguished, foreclosing appellate review. Id. at 215, 219.
The majority‘s reliance on defendant‘s motion for resentencing as a basis to review the alleged error reflects a misunderstanding of the distinction between waiver and forfeiture. Although a motion for resentencing may preserve a claim and thus avoid forfeiture, defendant here had already waived the alleged error at sentencing, thus extinguishing it before the motion for resentencing was filed. We have never held that an extinguished error could be revived in the manner suggested by the majority; indeed, creating a new “revival of waived errors” rule would significantly erode the distinction between waiver and forfeiture explained in Carter.
Moreover, if, under today‘s decision, an appellee is now required to raise the argument that the appellant waived a substantive issue, then is the appellant required to raise the argument that the appellee waived the waiver issue? The majority‘s decision essentially creates a potentially infinite spiral of waivers with no logical stopping point. What principle guides the majority in choosing to end this spiral at the point where the appellee but not the appellant is responsible for raising the issue? It is, after all, by definition the appellant who generally advances issues on appeal. The majority‘s arbitrary and unexplained assignment of responsibility to the appellee distorts the usual appellate burden and is most troubling.
Nor is it clear how the majority can avoid addressing whether the substantive issue was waived if, as we held in Carter, a waived error is extinguished. The truly
Further, the majority cites Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959), for the proposition that the “[f]ailure to brief an issue on appeal constitutes abandonment.” Ante at 131 n 36. But in Mitcham, this Court was referring to an appellant‘s failure to brief an issue in a civil case, not to an appellee‘s failure to discuss an issue in response.1
Indeed, this Court expressly declined to apply the Mitcham abandonment rule to an appellee in a criminal case. In People v Smith, 439 Mich 954 (1992), this Court vacated the portion of a Court of Appeals judgment that reversed a defendant‘s convictions on the ground that the prosecution had confessed error by failing to file a brief. This Court explained:
A party who seeks to raise an issue on appeal but who fails to brief it may properly be considered to have abandoned the issue. Mitcham v Detroit, 355 Mich 182, 203 (1959). However, the failure of an appellee to file a responsive brief may not properly be considered to be a confession of substantive error. [Id. (emphasis added).]
If, as this Court held in Smith, an appellee‘s failure to file a brief altogether does not constitute a confession of
The majority‘s new “appellee waiver” rule not only distorts our caselaw, but may also have very serious real-world consequences for our state‘s criminal justice system in these difficult economic times. Apparently because of budget constraints, the prosecution does not file appellee briefs in 19 percent of the criminal appeals in the Court of Appeals. Yet the majority now punishes the people of this state for failing to file a brief by creating what amounts to an automatic rule of reversal in one-fifth of the criminal appeals in our state.
Indeed, the dissenting judge in the Court of Appeals in Smith noted this very concern by explaining that reversing a conviction on the ground that the prosecution had not filed a brief “would result in the unnecessary reversal of validly obtained convictions” and “would constitute an even greater waste of this state‘s already taxed law enforcement, prosecutorial, and judicial resources than that occasioned by this Court‘s review of both sides of an issue on appeal.” People v Smith, 190 Mich App 352, 359; 475 NW2d 857 (1991) (DANHOF, C.J., dissenting).
An appellate court is obligated to articulate and apply the governing legal principles correctly regardless of whether the parties or lower courts have done so. That is why an appellate court will affirm a lower court‘s judgment if it reached the correct result albeit for the wrong reason. See, e.g., American Alternative Ins Co, Inc v York, 470 Mich 28, 33; 679 NW2d 306 (2004) (“The trial court and the Court of Appeals applied the wrong legal standards. However, because the Court of Appeals
The majority‘s decision subverts this fundamental duty by declining to apply the waiver principles explicated in Carter. We should not pretend that no waiver occurred merely because the prosecution‘s responsive brief did not correctly articulate the appropriate manner to resolve the issues raised on appeal.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that his trial counsel rendered ineffective assistance, but the majority does not analyze this issue under the two-part test for ineffective assistance of counsel set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984). To satisfy the Strickland standard, a defendant bears a heavy burden to show that counsel made errors so serious that he was not performing as the counsel guaranteed by the
The majority does not explain whether, and if so, why, it believes defendant has met the heavy burden required to establish ineffective assistance of counsel. In any event, counsel‘s acquiescence in the scoring of OV 9 was not an error at all, let alone an error so serious as to deprive defendant of the counsel guaranteed by the
At the time of sentencing, counsel could not have known that the then-controlling caselaw would be swept aside by the majority‘s new rule confining the scoring of offense variables to the definitional elements of the sentencing offense. The failure to anticipate a change in the law generally does not constitute ineffective assistance of counsel. Mullican v United States, 469 F Supp 2d 498, 504 (ED Tenn, 2007), citing Brunson v Higgins, 708 F2d 1353, 1356 (CA 8, 1983); see also Lucas v O‘Dea, 179 F3d 412, 420 (CA 6, 1999) (“Only in a rare case will a court find ineffective assistance of counsel based upon a trial attorney‘s failure to make an objection that would have been overruled under the then-prevailing law.“) (quotation marks omitted); Kornahrens v Evatt, 66 F3d 1350, 1360 (CA 4, 1995) (“Based on this clear precedent, we cannot say that, under the facts of this case, [counsel‘s] trial performance was constitutionally deficient because he followed a long-standing and well-settled rule of South Carolina criminal law—even when that rule was under attack in the United States Supreme Court at the time of trial.“) (emphasis added).
III. WHEN IS THE SENTENCING OFFENSE COMPLETED?
The majority‘s central holding is that a defendant‘s conduct occurring after an offense is completed may not be considered in scoring the offense variables unless the statutory provision for a particular variable instructs otherwise. The central flaw in the majority‘s analysis is that it completely begs the question of when an offense is completed. Indeed, the majority expressly avoids this question in this case, providing only an amorphous analysis regarding whether the challenged conduct was “far beyond and removed” from the underlying offense. Ante at 135 n 45. Rather than permitting sentencing courts to analyze the res gestae of a sentencing offense as we do in other contexts, the majority artificially limits consideration of the offense to its definitional elements. Not once does the majority even attempt to explain why or on what authority it has imposed this limitation.
The majority‘s new elements-only rule has no basis in Michigan caselaw. In Chesebro, the Court of Appeals held that only victims involved in the transaction underlying the sentencing offense could be considered in scoring OV 6 of the former judicial guidelines:
We think the rule that more accurately applies the sentencing guidelines is that the offense variables are to be scored only with respect to the specific criminal transaction that gives rise to the conviction for which the defendant is
being sentenced unless the instructions for a variable specifically and explicitly direct the trial court to do otherwise. [Chesebro, supra at 471 (emphasis added).]
We analyzed scoring decisions under OV 9 of the current legislative sentencing guidelines in People v Morson, 471 Mich 248; 685 NW2d 203 (2004), and People v Sargent, 481 Mich 346; 750 NW2d 161 (2008). In Morson, the defendant‘s accomplice committed an armed robbery against Deborah Sevakis. A bystander, James Bish, was shot while chasing the accomplice after the elements of armed robbery were completed. This Court held:
Defendant was assessed ten points by the sentencing court for two victims: Deborah Sevakis and James Bish. The Court of Appeals reversed that determination by the sentencing court, concluding that Sevakis was the only victim of the armed robbery. We disagree with the Court of Appeals and therefore reverse its conclusion regarding OV 9.
Pursuant to the plain language of the statute, the sentencing court is to count “each person who was placed in danger of injury or loss of life” as a victim. Though Sevakis was the only person actually robbed, Bish, who was standing nearby and responded to Sevakis‘s call for help, was also “placed in danger of injury or loss of life” by the armed robbery of Sevakis. Consequently, the sentencing court properly counted Bish as a victim and properly scored defendant under OV 9. [Morson, supra at 261-262.]
Although Justice YOUNG dissented on other issues in Morson, he agreed with the majority‘s analysis of OV 9:
I agree with the majority that the trial court did not err when it assessed ten points for offense variable (OV) 9. The language of
MCL 777.39(2)(a) clearly states that each person “placed in danger of injury or loss of life” is to be counted as a victim. Because a gun was fired at him, James Bish was placed in danger even if he had not intervened orbeen injured. [Id. at 277 (YOUNG, J., concurring in part and dissenting in part) (second emphasis added).]
Thus, all persons placed in danger during the course of a crime are properly counted as victims for the purposes of OV 9.
Nothing in Morson suggests that only the definitional elements may be used in scoring the offense variables. On the contrary, conduct that occurred after the elements were satisfied supported the OV 9 scoring decision. Thus, Morson supports the conclusion that every person placed in danger during the criminal event may count as a victim under OV 9.2
In Sargent, a criminal sexual conduct case, the sentencing court assessed 10 points for OV 9 on the basis that there were two victims: the complainant and her sister, whom the defendant had sexually abused previously. In a unanimous decision, this Court remanded for resentencing because the abuse of the complainant‘s sister was not part of the sentencing offense transaction and only conduct relating to the offense could be considered when scoring the offense variables.
We explained in Sargent that the offense variables are generally offense specific because their primary focus is the nature of the offense. We quoted several provisions that focused on “the offense” for purposes of scoring the guidelines. Sargent, supra at 348. We also noted that
We then stated that “when scoring OV 9, only people placed in danger of injury or loss of life when the sentencing offense was committed (or, at the most, during the same criminal transaction) should be considered.” Id. Noting that the jury did not convict the defendant of abusing the complainant‘s sister and that the abuse of the sister did not arise out of the same transaction as the abuse of the complainant, we concluded that zero points should have been assessed for OV 9. Id. at 351.
And as discussed, Court of Appeals caselaw applying the legislative guidelines also suggests that the entire criminal transaction may be considered in scoring the offense variables. In Cook, the defendant challenged the use of his conduct in fleeing the police to assess 10 points for OV 19 (interference with the administration of justice) when calculating his minimum sentence for assault with intent to do great bodily harm less than murder. The defendant argued that his flight from the police did not occur during the assault. The Court of Appeals found no basis for the defendant‘s argument in the plain language of the statute.
In drafting the sentencing guidelines scoring instructions, the Legislature could have expressly prohibited sentencing courts from considering facts pertinent to the calculation of the sentencing guidelines range for one offense from being also used to calculate the sentence guidelines range for another offense, but it did not do so. Moreover, where the Legislature has not precluded it, we
See also People v Gullett, 277 Mich App 214, 218; 744 NW2d 200 (2007) (holding that the sentencing court had improperly “looked beyond the criminal transaction that supported the conviction when it scored 10 points for OV 9“).
In short, all these cases support the conclusion that a court may consider the criminal transaction when scoring the offense variables. Until today‘s decision, a sentencing court was never required to confine its analysis only to the definitional elements of the sentencing offense.
More broadly, the res gestae concept is deeply embedded in our caselaw. For example, in People v Gillis, 474 Mich 105, 109; 712 NW2d 419 (2006), we held that in felony murder, a defendant‘s “perpetration” of the predicate felony includes acts that occur outside the definitional elements but during “the unbroken chain of events surrounding that felony.” “Because defendant at the time of the collision was attempting to escape detection after having been identified during the home invasion, a reasonable juror could conclude that he was still ‘in the perpetration of’ the home invasion.” Id.
Although the analysis in Gillis hinged in part on the definition of “perpetration” in the first-degree murder statute, a term that is not used in the offense variable provisions, it is nonetheless useful in demonstrating that an offense may remain ongoing after the completion of the definitional elements. We noted in Gillis that
In other words, a felon has not “carried out” or “completed” the felony for felony-murder purposes until the felon has escaped. A murder committed during the attempt to escape is committed “in the perpetration of” that felony, because the felonious transaction has not yet been completed. Accordingly, “perpetration” includes not only the definitional elements of the predicate felony, but also includes those acts that are required to complete the felony—such as those that occur after the commission of the predicate felony while the felon is attempting to escape....
* * *
“A burglar may be said to be engaged in the commission of the crime of burglary while making away with the plunder, and while engaged in securing it. So, a robbery within the meaning of a rule that a homicide committed in the perpetration of a robbery is murder in the first degree is not necessarily concluded by the removal of the goods from the presence of the owner; and it is not necessary that the homicide should be committed at the precise time and place of the robbery. As in the case of burglary, the robber may be said to be engaged in the commission of the crime while he is endeavoring to escape and make away with the goods taken.” [Id. at 116-117, 120, quoting Wharton, Law of Homicide (3d ed), § 126, p 186) (emphasis added).]
In short, under the res gestae rule, a murder that occurs during the “unbroken chain of events surrounding the predicate felony” is committed in the perpetration of that felony. Gillis, supra at 121. Time, place,
Moreover, this Court‘s use of the res gestae principle is not limited to the felony murder context. It is firmly rooted in our caselaw and used to describe not only the elements of the offense, but also the body of facts necessary to prove and support those elements. See, e.g., People v Kayne, 268 Mich 186; 255 NW 758 (1934); People v Sholl, 453 Mich 730; 556 NW2d 851 (1996). A leading treatise concisely explains the res gestae principle:
The res gestae includes circumstances, facts and declarations which grow out of the main fact, contemporaneous with it, and serve to illustrate its character. Normally facts and circumstances surrounding the commission of a crime are properly admissible as part of res gestae; however, use of testimony by the prosecutor to create prejudicial inferences unsupported by evidence is improper.
No inflexible rule has ever been, and probably one can never be adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances of the case, but it may be stated as a fixed rule that included in the res gestae are the facts which so illustrate and characterize the principal fact as to constitute the whole of one transaction. So long as a transaction continues, so long do acts and deeds emanating from it became [sic] a part of it, they may be described in a court of justice. There is no limit of time within which the res gestae can be arbitrarily confined. [1A Gillespie, Michigan Criminal Law and Procedure, § 18:72, pp 445-446.]
In light of our well-established caselaw addressing res gestae, I cannot discern why this Court should now invent a wholly different rule for determining when an offense is complete for purposes of applying the offense variables. Even accepting, as we stated in Sargent, that
The elements are traditionally used to determine whether the prosecution has presented sufficient evidence to support a charge or a conviction, not to define the res gestae of the offense. Indeed, the majority‘s new rule collapses the duration of a criminal offense so that it begins and ends at precisely the same instant. A prosecutor cannot charge a crime until the last element has been completed. At the most, a prosecutor could charge only for an attempt if all the elements have not been completed. Yet under the majority‘s opinion, the crime also stops immediately upon the completion of the elements. That is, at the precise moment the crime can be charged, the majority would stop the clock for the purpose of scoring the sentencing guidelines. Why?
As we explained in Sargent,
Not once does the majority even attempt to explain why or how it has reached the remarkable conclusion that a defendant‘s flight from the scene of the crime is not an “aggravating... factor[] relating to the offense....” Instead, the majority simply gives no effect to the portion of the statute that does not support its new standard, focusing only on the reference to “the elements of the crime” while disregarding the phrase “and the aggravating and mitigating factors relating to the offense that the legislature determines are appropriate.”
The majority‘s suggestion that it can ignore defendant‘s escape attempt because defendant was not convicted of fleeing and eluding reflects a mistaken understanding of
the elements of the crime and the aggravating and mitigating factors relating to the offense that the legislature determines are appropriate. For purposes of this subdivision, an offense described in...
MCL 791.233b , that resulted in a conviction and that arose out of the same transaction as the offense for which the sentencing guidelines are being scored shall be considered as an aggravating factor.
This provision requires that certain offenses that result in a conviction must be considered as aggravating factors. But contrary to the majority‘s suggestion, it does not say that other contemporaneous offenses that do not result in a conviction or that are not listed in
Moreover, the majority‘s elements-only test violates the very purpose of the sentencing guidelines: to promote uniformity and consistency in sentencing.3 To that end, we have held that departure from the guidelines recommended minimum sentence range is meant to be the exception, not the rule.4 Despite this well-established standard and without acknowledging the inconsistency created, the majority states that the trial
Indeed, those justices in the majority in this case who were also in the majority in People v Smith, 482 Mich 292; 754 NW2d 284 (2008), have failed to explain their inconsistent positions. Contrary to the analysis in Smith, the majority today suggests that sentencing courts should depart freely from the guidelines recommended range by considering factors outside the elements of the offense that may not be considered when scoring the offense variables. This invitation to depart more readily from the guidelines will likely cause a dramatic increase in the number of sentencing appeals, which our appellate courts will have to review under the rigid framework demanded by Smith.
In this case, I would hold that defendant was properly assessed 10 points for OV 9. Defendant argues that even if his escape attempt were to be considered, his accomplices could not be considered victims for the purpose of scoring OV 9. But the version of
Defendant further contends that no evidence existed that he was driving the getaway vehicle when it crashed into the fence. The police officer, however, saw a person with light hair inside the fleeing vehicle, and defendant
IV. CONCLUSION
Accordingly, I would affirm the judgment of the Court of Appeals. Defendant waived his claim that OV 9 was incorrectly scored when his attorney conceded at sentencing that the guidelines minimum sentence ranges for his offenses “appear to be correct.” Counsel was not ineffective in making this concession, given that the caselaw in effect at the time of sentencing supported the OV 9 score. Finally, the majority‘s new elements-only rule for scoring offense variables has no basis in our caselaw. The Court of Appeals properly considered the entire res gestae of the sentencing offense in concluding that the evidence supported the scoring decision.
WEAVER and YOUNG, JJ., concurred with CORRIGAN, J.
Notes
The dissent argues that“Offense characteristics” means the elements of the crime and the aggravating and mitigating factors relating to the offense that the legislature determines are appropriate. For purposes of this subdivision, an offense described in section 33b of the corrections code of 1953, 1953 PA 232,
MCL 791.233b , that resulted in a conviction and that arose out of the same transaction as the offense for which the sentencing guidelines are being scored shall be considered as an aggravating factor.
Even assuming thatTh[is] maxim is a rule of construction that is a product of logic and common sense. Feld v Robert & Charles Beauty Salon, 435 Mich 352, 362; 459 NW2d 279 (1990), quoting 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, at 203. This Court long ago stated that no maxim is more uniformly used to properly construe statutes. [Hoerstman Gen Contracting, Inc v Hahn, 474 Mich 66, 74-75; 711 NW2d 340 (2006).]