*1
Affirmed. joined by dissenting, Justice Justice Marilyn Cavanagh, Kelly, judgment Appeals would have reversed the of the Court of resentencing in Lowe. remand for consistent with his dissent 333.7413(2) sentencing permit court to double a does range range if that defendant’s minimum sentence determined Rather, sentencing guidelines. only permits a sentenc- under the it ing penalty provided within the controlled court double act, seq. et Because defendant’s mini- substances MCL 333.7101 range under the mum sentence in this case must be determined 489 Mich Opinion of the Court Cavanagh sentencing guidelines, Justice would have held that subject defendant’s minimum sentence was not to enhancement sentencing under MCL and that the court erred imposing guidelines range a minimum sentence that exceededthe 769.34(2), provides in violation of MCL that absent a properly justified departure, all minimum sentences for the enu- merated felonies fall must within the calculated under the sentencing guidelines. rejected argument He further scored, that the noting PRVs should not have been that under that approach, defendant’s sentence could fall below the minimum guidelines, calculated under the which would also requirement conflict with the in MCL Sentencing — — Repeat — Sentences Controlled Substances Offenders — Guidelines Prior Record Variables. calculating A court a defendant’s recommended mini- sentencing guidelines mum sentence under the when the may defendant’s minimum and maximum sentences be enhanced pursuant to MCL must score the record vari- (MCL [4]). 777.21[1], ables Bill Schuette, Attorney General, John J. Bursch, General, Solicitor Joel D. McGormley, Assistant Attor- *3 ney General, and Stephanie Brule, S. At- Prosecuting torney, for the people. McCann)
State Appellate Defender (by Jacqueline J. for defendant. J. This case presents the question whether Zahra, (PRVs)
scoring prior record variables when calculating a defendant’s recommended minimum sentence range under the statutory sentencing guidelines is improper when a defendant’s minimum and maximum sentences may 333.7413(2). be enhanced pursuant to MCL The sentence enhancement in MCL falls under the purview of 777.21(4), and, MCL therefore, answer necessarily turns on the language .of 777.21, which sets forth the instructions for calculating a defendant’s minimum sentence range. Reading all the People v Peltola Opinion op the Court together, giving of this statute and thus provisions intent, stated we hold that Legislature’s effect to of the PRVs when requires MCL 777.21 Accordingly, we affirm applicable. defendant’s sentences.
I. AND PROCEDURAL HISTORY FACTS delivery A defendant of of less than 50 jury convicted heroin1 and to deliver less than 50 grams conspiracy The trial court scored the PRVs and grams of heroin.2 (OVs), calculating variables defen the relevant offense at 5 to 23 months in dant’s minimum sentence statutory years. with a maximum 20 Because prison defendant had a conviction for a controlled sub offense, applied stance the trial court the sentence 333.7413(2).3 court enhancement trial maximum doubled both the minimum and sentences defendant within the each conviction sentenced enhanced to concurrent terms of 46 months to 40 years’ imprisonment. right
Defendant as of his convictions and appealed sentences, Appeals Court of affirmed an curiam.4 In defendant unpublished opinion per particular, the enhancement of his minimum sentences challenged under MCL While defendant’s was appeal Lowe, in the Court of we issued pending Appeals, 333.7401(2)(a)(iv). 2 MCL 750.157a. 333.7413(2) states, “Except provided in as otherwise subsec (3), subsequent of a or tions an individual convicted second may imprisoned offense under this article be for a term not more than an than twice the term otherwise authorized or fined amount not more *4 authorized, twice that otherwise or both.” 4 Peltola, unpublished opinion per People v curiam of the Court of (Docket 288578). 20,
Appeals, issued October 2009 No.
178
Opinion
Court
718;
Mich
(2009),
484
Defendant leave appeal to in this Court through counsel in the Appellate State Defender Office (SADO) and by filing a separate application propria persona. We directed the prosecuting attorney an swer the application for leave filed SADO defen dant’s behalf.6 After receiving the prosecutor’s answer, we denied the application that had been filed propria persona.7 With to the respect application filed by SADO, we scheduled oral argument, instructing the parties address whether the scoring of PRVs is improper when a defendant’s minimum and maximum may sentences 333.7413(2).8 be pursuant doubled to MCL
II. STANDARD OF REVIEW questions We review of statutory interpretation de novo.9 5 People Peltola, unpublished v Appeals, order of the Court of entered (Docket 14, 288578). December No. prosecutor specifically We directed argument address the
Lowe,
718, precludes
Mich
of the PRVs in this case.
(2010).
Peltola,
People v
III. ANALYSIS in- question here is whether calculating tended that a court score the PRVs when range for an offender whose sen- 333.7413(2).10 may tence be enhanced under MCL MCL mini- 777.21, which instructs on the calculation of the range, provides: mum sentence (1) section, Except provided as otherwise in this for an part chapter in [MCL offense enumerated of this 777.11 777.19], through mini- MCL determine the recommended range mum as sentence follows: (a) category part 2 Find the offense for the offense from 777.22], chapter. [MCL of this From determine the offense category variables to be scored for that offense and score provided those offense variables for the offender as in part chapter through [MCL 777.49a]. of this 777.31 MCL points Total determine those the offender’s offense variable level.
(b) prior Score all record variables for the offender as provided part chapter through [MCL 5 of this 777.50 points 777.57]. Total those to determine the offend- prior er’s record variable level.
(c) part Find the offense class for the offense from 2 of chapter. Using sentencing grid this for that offense part chapter through class in 6 of this [MCL 777.61 777.69], determine the recommended minimum sentence range from the intersection of the offender’s offense vari- prior able level and record variable level. The recom- undisputed scored, It if is the PRVs should not have been Francisco, resentencing. defendant is entitled to See 474 Mich (2006). 82, 88-92; PRVs, If 711 NW2d the trial court had not scored the months, minimum sentence would have been zero to 6 which if have doubled would resulted a zero- to 12-month minimum range, than sentence rather the 10- to 46-month minimum court, required calculated the trial and the trial court have been would impose prison an intermediate sanction rather than a term absent a 769.34(4)(a). justifying departure. reason 489 Mich Opinion Court grid
mended minimum sentence within a shown as a life. months or (2) offenses, multiple If the defendant was convicted of subject 771.14], provided [MCL score each offense as part through [MCL 777.22]. 777.21 being If the offender [MCL sentenced under 769.10, 769.11, 769.12], or MCL determine the of- category, class, level, fense offense variable record variable level based on the offense. range, To determine the recommended *6 upper increase the limit of the recommended minimum part underlying sentence determined under 6 for the offense as follows:
(a) being felony, If the offender is sentenced for a second 25%.
(b) being felony, If the offender is sentenced for a third 50%.
(c) being If the offender is sentenced for a fourth or subsequent felony, 100%.
(4) being If the offender is sentenced for a violation 777.18], following [MCL described in apply: both of the (a) by scoring Determine the offense variable level the underlying any offense variables for offense and addi- tional category offense variables for the offense indicated 777.18], [MCL
(b) underlying Determine the offense class based on the multiple underlying offenses, offense. If felony there are the offense underlying class is the same as that of the felony highest offense with the crime If class. there are multiple underlying felony, offenses but is a underlying felony class is the same as that of the felony, offense. If no offense is a the offense class is G.
(5) If being attempted the offender is sentenced for an felony 777.19], [MCL described in determine the offense variable and level record variable level based on the underlying attempted offense. v Peltola Opinion the Court interpreting overriding goal is to a statute
Our
Legislature’s
give
intent.11
to the
and
effect
determine
Legislature’s intent is
ofthe
reliable indicator
The most
interpret
those words
in the statute.12We
the words
ordinary meaning
light
within
and their context
oftheir
harmoniously giveeffectto
read them
the statute and
“every
Moreover,
word should
statute as a whole.13
meaning,
given
avoid a construction
we should
be
surplusage
any part
or
of the statute
render
that would
nugatory.”14
language unambiguous,
statutory
If the
permitted
required
judicial
or
construction is
no further
presume
intended
we
expressed.15
meaning
plainly
that it
general rule for deter-
forth the
sets
range,
mining
while
minimum sentence
a defendant’s
(5)
exceptions
through
forth
to the
set
subsections
general
regarding
explanations
how
and additional
rule
specific
applied
to various
are
Reading
as
of defendants
offenses.
classes
by
supported
the clear
rule is
by stating, “Except
begins
as
subsection,
provided
section,. .. determine the
in this
otherwise
follows[.]”
as
recommended
is thus determined
*7
21(1)
§
following
in
unless one of the
the instructions
provides
applies an instruction
other subsections
21(1).
language in
with the
that is inconsistent
11
(2002).
Koonce,
515, 518;
vided” does mean that when of the one other is applicable, entirely subsections inappli- Rather, giving cable. effect to the a whole, statute as to the inapplicable only extent that one of the other subsections is inconsistent with instruction an in 21(l)(b) it.16 For purposes case, § of this instructs that a “[s]core court all record variables for the .” offender . . . The rule in all cases is thus to score PRVs unless the in another subsection statute directs otherwise. case,
In
the only
other subsection relevant to the
calculation of defendant’s recommended minimum sen-
tence range
21(4),
was
which applies to violations
“described
section 18 of this
. .”
chapter . .
Section 18
XVII of
Code
chapter
of Criminal Procedure
777.18,
refers to MCL
subsequent
includes
con-
333.7413(2).17
trolled substance violations under MCL
As a
result,
determination
subject
was also
to the instructions in
777.21(4).
MCL
We
therefore
must
consider the inter-
play
MCL
between
and MCL
When applicable,
provides additional
rules
relating to the scoring of OVs and the determination of
class of
offense. These in-
Vega
Hosps,
v Lakeland
243, 250-251;
See
479 Mich
did not state when deter- following exclusively” apply “both offender’s minimum sentence mining an 21(4). further The absence of such exclusive 21(1)(a) category and the OVs to instructs on the offense Section 21(1)(e) finding determining on level. Section instructs score in OV using grid for that offense class to determine the offense class and of the intersection basis recommended the OV level and the PRV level. 19 Emphasis added. 489 Mich Opinion op the Court in conjunction
demonstrates works *9 21(1). with, § and independently from, not reject argument We that the of absence 21(4) § PRVs in reference to shows that the Legis- lature that intended PRVs are not to be scored with respect to defendant offense falls under whose 21(4). § in addressing argument Crucial are the of amendments MCL 777.21.20 Specifically, the amendments inserted as otherwise “[e]xcept provided 21(1) in this in the opening section” sentence of and 21(4), rewrote previously stated, had “If the being offender is sentenced for a violation described in section 18 of this determine the chapter, class, level, offense variable and record prior variable level based on offense.”21 underlying As a result
variable lying offense, and record based variable level on-the under- following hoth of the annlv: (a) scoring Determine the offense variable level bv the offense additional offense underlying any variables for the offense and category variables for the offense indicated in section 18 of this chapter- (b) Determine the offense class hawed on the of multiple underlying felony offenses, fense. If there are the offense underlying felony class is the same as that of the offense with the highest multiple underlying crime class. If there are offenses hut v Peltola Opinion the Court refers to PRVs. amendments, longer no these the reference the removal of contends that Defendant of the and the retention in MCL scoring PRVs (5) show that and to PRVs MCL references PRVs that a court score intended §21(4) argues Defendant also applicable. when §of language the PRVs on the basis to scor- render the references would applies superfluous. PRVs in the other subsections ing subsec- any did not alter The.Legislature retain their (5), thus those subsections tions and in- language is Generally, when references to PRVs. but omitted from of a statute cluded one section the drafters acted section, it is presumed another in their inclusion or exclu- intentionally purposely Leg- cannot assume that Similarly, “[c]ourts sion.22 *10 from one statute the inadvertently omitted islature then, statute, in another on that it language placed what is not there.”23 assumption, apply of that the basis clarified only that the 2006 amendments We conclude falling class to offenders applicable the OVs and offense 21(4). Removing § the reference under the of purview direction that the PRVs general PRVs did not affect the for each not all OVs are scored Significantly, be scored. Thus, offenses to which MCL 777.18 class of crime.24 for felony, offense class is the same as that of the 1 is a the underlying felony, underlying felony offense. If no offense is a the 777.21, 655.] offense class is G. amended 2006 PA [MCL as States, 296; 16, 23; L Russello v United 104 S Ct 78 Ed 464 US See (“[W]here Congress particular in one includes 2d 17 Act, it it in another section of the same of a statute but omits section intentionally Congress purposely in generally presumed the acts exclusion.”) (quotation and citation omit disparate or marks inclusion Russello). ted) (alteration in
23 Farrington,
Mich at 210.
24 MCL 777.22.
cause The amend- underlying scoring offense when the OVs.25 § trial ments of inform a court which OVs should be 18 comes into well as which play, scored as applies, clarify sentencing crime class in order to which grid calculating must be used when a defendant’s Section is thus not a range. standalone, statute, but independent merely meant additional part larger provide whole and the for guidance potential heightened OV 18, falling clarity offenders as well as concerning the those offend- applicable class for ers.26 illustration, subsequent As an substance abuse offense which, 333.7413(2), noted, violated MCL as in is an offense listed MCL applying 777.21(4), the 777.18. In instructions under MCL the trial court offense, underlying delivery grams scored the OVs for the less than 50 of 333.7401(2)(a)(iv), heroin, MCL of which falls under controlled category, substance offense as the as well offense variables 333.7413(2), public category. falls under trust offense Consequently, in addition to the variables scored a result of defen as offense, 4, 9, dant’s substance the trial scored controlled court also OVs 10, public as a and 16 result of defendant’s trust offense. Defendant’s delivery grams was D offense class of less than 50 of heroin is a class D offense and MCL instructs that the offense class is
based on the offense. support 777.21 verb selections MCL lend additional to our impact general conclusion had amendments no determining guidelines range rule to score PRVs when under that setting 21(1)(b), When subsection. forth the rule for PRVs “score,” instructing used the verb all “score record provided 21(4), however, part chapter.” variables as In *11 Legislature merely “determine,” stating “[d]etermine used the verb “[djetermine level” and offense variable the offense class ....” The word general 21(1)(a), instructing “determine” also used in the rule in courts on how to determine the OVs to be scored and the offender’s OV Conversely, instruction, level. “determine” is not used for the PRV command, the word instead uses “score.” The direction to is a “score” otherwise, meaning that unless directed a court an must score offender’s Peltola Opinion of the Court in MCL to PRVs reference of the retention The (5) conclusion. our not undermine does these subsec language the actual considering When court to “de instructs each, applicable, when tions, on the level based record variable prior the . .. termine amendments, Before the underlying offense.”27 Thus, read when language. the same contained (5) (3) contain do not context, subsections Rather, PRVs. score the freestanding instructions are appli those subsections that when indicate they level is PRV of a defendant’s cable, the determination underlying offense. on the based for all are scored all PRVs seven Significantly, felo- generally the PRVs scoring of And the nies.28 result, the As a conduct.29 defendant’s considers of the on the no effect offense has underlying reviewing they are determined PRVs underly- of the regardless history criminal determine the Therefore, the instruction offense. ing offense is underlying the basis of level on PRV PRV determine the A court cannot illogical. inherently when the on the basis score “Determine,” guidelines. on the other to calculate the PRVs in order concerning hand, explanation which OVs simply provides additional §in with the Thus, comparing “determine” the use of score. support 21(4), choices in the statute the word use of “determine” merely intended to were the amendments of conclusion that regarding level and explanation to determine OV provide how further §in offense listed 18. committed an class for a defendant who the offense (5) added). (emphasis of subsection identical, on the basis of the except the PRVs be scored that it directs that attempted concerns at “underlying because subsection offense” tempted felonies. 777.21(1)(b); Michigan Gillespie, Law & Procedure Criminal (2d ed), 22:96, p 204. 777.57, exception 7, seq. provides an to this et PRV MCL 777.50 convictions, subsequent and concurrent in that it concerns rule analysis. exception not alter our does but this *12 MICH Opinion op the Court scoring of is in any way contingent PRVs no the offense. Yet the in reading statute the suggests manner that defendant give would an artificial 21(3) meaning § to to in (5), the references PRVs contrary statute, to the of language the because it full require would we overlook the instruction to determine a defendant’s PRV level on the of basis the underlying offense. 21(4) §
We conclude that does not an provide instruc- regarding tion of the PRVs contrary 21(1). § set forth in Rather, the 2006 amendments clarified how court determines the OVs classes offenders falling the purview 21(4). §of or No distinction further clarification was regard needed with because, to the PRVs as previously addressed, the PRVs are scored the same matter way no what the underlying offense. Reading the various changes enacted as part of of amendments together statute supports the gen- conclusion that the 21(4) eral rule § to score the PRVs applies still 21(4) § provide does not otherwise. The addi- of tion the phrase “except as otherwise provided” to 21(1) § in conjunction works with the new §21(4), stating that “both the following apply,” introducing the substantive changes regarding ap- plicable Thus, OVs and offense classes. the rules “oth- provided” erwise only relate to the OV and offense class Drawing directions. this conclusion does not restore to the statute language that the Legislature omitted. In- 21(1) stead, general direction in to score PRVs carries through because there explicit is no language in instructing courts not to score PRVs. The PRVs are scored not because the Legislature removed the them, reference to scoring but because in 21(4), amendments to the Legislature did simply v Peltola Opinion the Court the displaced rule that contrary provide not to score direction explicit rule or an PRV PRVs.30 contrary to that our conclusion recognize
We
stated,
Lowe, in which we
made in
statements
dissent, that
to the
responding
decision
of that
section
appeared
to PRVs in
of a reference
the absence
*13
that offenders
intended
Legislature
that the
to indicate
21(4)
to
regard
with
not be scored
§
should
falling
reference that
offense.31 The
nature of the
repeat
the
reading
consistent with
of the statute is
note that our
We
uniformity
promote
and consis
Legislature’s intent to
effectuates the
sentencing guidelines
through
and the
tency
sentencing
the
in
the use of
severely.
punish
more
general legislative purpose
recidivist offenders
to
333.7413;
769.12;
769.10;
769.11;
also
MCL
see
MCL
See MCL
(2003) (“The
247, 263;
Babcock,
Mich
666 NW2d
that,
being
everything
system
justice
else
premise
of our
of criminal
offense,
the
egregious
and the more recidivist
equal,
the
the more
scoring
By requiring
criminal,
greater
punishment.”).
the
of the
the
the
by avoiding
PRVs,
analysis
purpose
the untoward
effectuates this
our
severely
drug
than a
consequence
punishing
offender less
of
a recidivist
drug offender.
first-time
31Lowe,
Specifically, this Court stated:
IV CONCLUSION *14 calculating hold that a We when recom- mended minimum sentence the sentencing guidelines when the defendant’s minimum and maxi- may mum sentences be enhanced pursuant to MCL 333.7413(2), a trial court should score the PRVs. Read- 777.21(1) (4) and ing conjunction with one 777.21(4) sentence, enhancement of maximum then MCL unnecessary, have would been and the would have had apply sentencing reason to no the minimum sentence to (second Lowe).] [Id. under MCL alteration in Instead, binding precedent. they Obiter dicta are not are statements unnecessary and, thus, that are determine at to the case hand “lack the adjudication.” Engineers Strat, force anof WoldArchitects & v 474 Mich (2006) (citations 223, 3; quotation 232 n 713 NW2d and marks omitted). People Peltola v by Dissenting Opinion Cavanagh, J. 777.21(1) must that the PRVs instructs another, MCL determining when offender for each scored be 777.21(4), read as range. how the in context with whole, and larger a part not dis- does generally, operate sentencing guidelines contrary a or provide requirement this place 777.21(4) intended merely Rather, MCL instruction. the OV to determine how regarding guidance provide to under MCL falling for offenders class and offense level scored properly the trial court Accordingly, 777.18. are affirmed.33 sentences Defendant’s PRVs. Mary C.J., and Hathaway, Markman,
Young, J. JJ., concurred with Zahra, Kelly, Beth dissent be respectfully I (dissenting). J. Cavanagh, dissent my I remain committed cause 732-743; NW2d 718, Mich Lowe, 484 Lowe my dis J., dissenting), applying (Cavanagh, by the the issue addressed case renders to this sent irrelevant. majority not does Lowe, I explained
As double a defendant’s court sentencing permit range if that sentence Rather, sentencing guidelines. under the determined sentencing court to only permits sub the controlled within penalty provided double a In my judgment, et act, seq. MCL 333.7101 stances 333.7413(2) be of MCL interpretation proper is the it construes cause, possible, to the extent conflict potential harmoniously and avoids statutes that all minimum 769.34(2), mandates with appellate defendant respect issue raised to the other With appeal credit, deny are because we regarding we leave his by this question presented be reviewed persuaded should Court.
192 489 174 MICH Dissenting Opinion by Cavanagh, J. fall the range sentences within calculated under the guidelines, justified sentencing properly depar absent Lowe, See Mich J., ture. at 733-743 (Cavanagh, dissenting).
Because, 769.34(2), under MCL mini defendant’s mum sentence case be range must determined sentencing guidelines, under I would hold that defendant’s minimum sentence is not to en subject hancement MCL Like Lowe, defendant in listed in MCL 769.34(2) result, 777.13m. As a defen applies and dant’s minimum sentence must fall within range calculated under sentencing guidelines in chapter XVII of Procedure, the Code of Criminal MCL 777.1 through Lowe, 777.69. See Mich at 736-739 J., dissenting). To defen properly calculate (Cavanagh, range dant’s sentence guidelines, under the (PRVs) record Thus, variables must be scored. case, in this the trial court was correct to score defen Further, dant’s PRVs. the trial applied court properly 333.7413(2) to double defendant’s sen maximum tence because that of his sentence portion is determined by the controlled Lowe, substances act. See 484 Mich at J., dissenting). erred, trial court (Cavanagh, however, when it applied MCL to double defendant’s minimum range because the doubled minimum sentence range permitted the trial impose court a sentence that exceeded calculated under the guidelines, contrary to 769.34(2).1 points Defendant’s total PRV score is 60 and his total OV score is 6 Thus, points. sentencing guidelines, under the defendant’s minimum applied sentence is 5 to 23 months. But the trial court to double defendant’s minimum sentence to 10 to 46 Furthermore, setting months. defendant’s minimum at months, expressly the trial court in this case stated sentence was v Peltola *16 Opinion by Dissenting Cavanagh, J. dissent, that, my I under Lowe note Finally, also similarly could scoring approach preferred defendant’s conflicts with impermissibly in a sentence result (or not PRVs are scored If defendant’s resulting guidelines and the points) at zero are scored sentence could doubled, minimum defendant’s range the calculated under range below the fall 2 Thus, preferred if defendant’s sentencing guidelines. sentence could resulting the were approach applied, 769.34(2) that, in MCL requirement with the conflict all minimum justified departure, a properly absent felonies must fall within for enumerated sentences sentencing guidelines under the range calculated be shorter than sentence could resulting sentencing guidelines range. to sen- preferred approach the prosecution’s Because case, majority tencing adopts, could both result preferred approach defendant’s 769.34(2), I inconsistent with sentences that are Rather, I re- would approach. either apply would and remand judgment Appeals of the Court of verse the Lowe my consistent with dissent. resentencing Marilyn J. J., concurred with Cavanagh, Kelly, when, fact, departure guidelines the sentence not a range properly sentence under the calculated minimum exceeded guidelines. range previously explained, under defendant’s As If PRVs were at zero is 5 months. scored to 23 be reduced to zero to 6 points, his minimum sentence would 333.7413(2), and, his minimum doubled months months, substantially zero to which is become would guidelines. under the than the 5- calculated lower to 23-month