People v Sours
890 N.W.2d 401
Mich. Ct. App.
2016
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PEOPLE v SOURS

Docket No. 326291

Court of Appeals of Michigan

Submitted May 3, 2016. Decided May 10, 2016.

315 MICH APP 346

Jеrald L. Sours pleaded guilty in the Branch Circuit Court to possession of methamphetamine, MCL 333.7403(2)(b)(i). The court, Patrick W. O‘Grady, J., sentenced defendant as a second-offense habitual offender, MCL 769.10, to 47 months to 15 years’ imprisonment with the sentence to run consecutively to a sentence from which he was on parole. Defendant appealed his sentence by leave granted, alleging that the trial court erred by assessing 10 instead of zero points for Offense Variable (OV) 19, MCL 777.49(c), because defendant did not interfere with the administration of justice in relation to his sentencing offense merely because he was contemporanеously in violation of his parole.

The Court of Appeals held:

Offense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense vаriable statute specifically provides otherwise. Only conduct that relates to the offense being scored may be considered when determining the score for an offense variable. MCL 777.49(c) requires the аssignment of 10 points if the offender interfered with or attempted to interfere with the administration of justice. The trial court erred by assessing 10 points for OV 19 under MCL 777.49(c) during sentencing on defendant‘s possession-of-methamphetаmine conviction because defendant‘s failure to report to his parole agent before committing a new felony, the sentencing offense, did not hinder the process of administering judgment for the sentencing offense. In this case, the sentencing offense was the possession-of-methamphetamine conviction, and defendant was not simultaneously being sentenced for the parole violation. To bе assessed 10 points on OV 19 for interfering with the administration of justice, defendant would have had to have acted in a way that hindered the process of investigating and administering judgment for the methamphetamine offense. The fact that defendant was also violating his parole had no effect on the process of investigating, trying, and convicting him for the methamphetamine offense; therefore, OV 19 should have been sсored at zero points. Defendant was entitled to be resentenced because the original sentence was based on an inaccurately calculated guidelines range, and properly assessing zero points for OV 19 moved defendant to OV Level I, which resulted in a corrected guidelines range of 10 to 28 months rather than 19 to 47 months. Defendant‘s argument that the assessment of 10 points for OV 19 was based on unconstitutional judicial fact-finding was moot because defendant was entitled to be resentenced.

Case remanded for resentencing under properly calculated guidelines.

SENTENCES - SENTENCING GUIDELINES - OFFENSE VARIABLE 19 - INTERFERENCE ‍‌​​‌‌‌‌​‌​‌​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌‌‌​​​​​‌​‌‌​‍WITH THE ADMINISTRATION OF JUSTICE - CONTEMPORANEOUS PAROLE VIOLATION.

To be assessed 10 points under Offense Variable 19, MCL 777.49(c), a defendant must act in a way thаt hinders the process of investigating and administering judgment for the sentencing offense; points may not be assessed for Offense Variable 19 on the basis of a defendant‘s violation of parole if that violation hаd no effect on the process of investigating, trying, and convicting that defendant for the sentencing offense.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and Ralph W. Kimble II, Prosecuting Attorney, for the people.

State Appellate Defender (by Mitchell T. Foster) for defendant.

Before: RIORDAN, P.J., and SAAD and MARKEY, JJ.

PER CURIAM. Defendant, Jerald Lavere Sours, pleaded guilty to possession of methamphetamine, MCL 333.7403(2)(b)(i), and was sentenced as a second-offense habitual offender, MCL 769.10, to 47 months to 15 years’ imprisonment with the sentence to run consecutively to his parоle sentence. Defendant now appeals his sentence by leave granted. We remand to the trial court for resentencing under properly calculated guidelines.

Defendant argues that the trial court erred by assessing 10 instead of zero points for Offense Variable (OV) 19, MCL 777.49(c), because defendant did not interfere with the administration of justice in relation to his sentencing offense merely because he was contemporaneously in violation of his parole. A claim that the sentencing guidelines range was improperly calculated is preserved by raising the issue “at sentencing, in a motion for resentencing, оr in a motion to remand.” . Here, defendant preserved this issue by moving that the trial court correct an invalid sentence based on the same claim that he raises on appeal; the trial court treаted the motion as one for resentencing. Issues involving “the proper interpretation and application of the legislative sentencing guidelines, MCL 777.11 et seq., . . . are legal questions that ‍‌​​‌‌‌‌​‌​‌​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌‌‌​​​​​‌​‌‌​‍this Court reviews de novo.” . On appeal, “the circuit court‘s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviеws de novo.” .

“Offense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute spеcifically provides otherwise.” . The McGraw Court defined “sentencing offense” as “the crime of which the defendant has been convicted and for which he or she is being sentenced.” Id. at 122 n 3. In other words, “unless stated otherwisе, only conduct that relates to the offense being scored may be considered” when determining the score for an offense variable. . The instructions for scoring OV 19 are found in MCL 777.49, which requires the assignment of 10 points if “[t]he offender otherwise interfеred with or attempted to interfere with the administration of justice.” MCL 777.49(c). “[T]he plain and ordinary meaning of ‘interfere with the administration of justice’ for purposes of OV 19 is to oppose so as to hamper, hinder, оr obstruct the act or process of administering judgment of individuals or causes by judicial process.” .

OV 19 is generally scored for conduct that constitutes an attempt to avoid being caught and held accоuntable for the sentencing offense.1 For example, in , the defendant pleaded guilty to operating a motor vehicle while intoxicated. The trial court scored OV 19 at 10 points for interference with the administration of justice because the defеndant gave a false name to the police officer who initially stopped his car. Id. Our Supreme Court affirmed, reasoning that investigating crime “is critical to the administration ‍‌​​‌‌‌‌​‌​‌​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌‌‌​​​​​‌​‌‌​‍of justice” and that the defendant impeded that process by giving a false name to the police. Id. at 288. Additionally, in , the Court held that it was

proper to score OV 19 on the defendant‘s manslaughter conviction when, after the crash that caused the victim‘s death, the defеndant threatened the passenger who was in the defendant‘s vehicle at the time of the crash to keep her from talking to the police. The Smith Court held that “[t]he ‘administration of justice’ process . . . is not commenced until an underlying crime has occurred, which invokes the process.” Id. at 202.

Here, the trial court erred by assessing 10 points for OV 19 during sentencing on defendant‘s possession-of-methamphetamine conviction because defendant‘s failure to report to his parole agent before committing a new felony, the sentencing offense, did not hinder the process of administering judgment for the sentencing offense. Under McGraw, the sentencing offense in this case is the possession-of-methamphetamine conviction because that is the crime for which defendant was being sentenced on June 23, 2014. See . Defendant was not being sеntenced for the parole violation simultaneously. So, to be assessed 10 points on OV 19 for interfering with the administration of justice, defendant would have had to have acted in a way that hindered the proсess of investigating and administering judgment for the methamphetamine offense. See, e.g., ; . In this case, defendant was arrested immediately after being discovered with methamphetamine. The fact that he was alsо violating his parole had no effect on the process of investigating, trying, and convicting him for the methamphetamine offense; therefore, OV 19 should have been scored at zero points. .

Because OV 19 was improperly scored, which resulted in an improperly calculated guidelines range, defendant is entitled to be resentenced. See People v (holding that a defendant is entitled to be resentenced if the original sentence was based on an inaccurately calculated guidelines range). In this case, the trial court erroneously scored OV 19 at 10 rather than zero points. Assessing zero points for OV 19 moves defendant to OV Level I, which results in a corrected guidelines range of 10 to 28 months rather than 19 to 47 months. MCL 777.65; MCL 777.21(3)(a). Although the trial court stated that it might nonetheless consider defendant‘s conduct to be grounds for a departure, implying that it might have imposed the same sentence, defendant ‍‌​​‌‌‌‌​‌​‌​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌‌‌​​​​​‌​‌‌​‍is still entitled to be resentenced because his minimum sentence of 47 months falls outside the properly calculated minimum guidelines range of 10 to 28 months. See . There is simply no way of knowing what sentence the trial court would have imposed in light of the correctly calculated guidelines. See id. at 91. “Thus, requiring resentencing in such circumstances not only respects thе defendant‘s right to be sentenced on the basis of the law, but it also respects the trial court‘s interest in having defendant serve the sentence that it truly intends.” Id. at 92.

Defendant also argues that the assessment of 10 points for OV 19 was based on unconstitutional judicial fact-finding. In , our Supreme Court held that Michigan‘s sentencing guidelines are advisory, remedying the constitutional violation presented by allowing mandatory minimum sentences to be inсreased based on judicial fact-finding. Because we conclude that OV 19 should have been scored at zero points and that defendant is entitled to be resentenced, defendant‘s Lockridge issue is now moot, and wе need not address it. “An issue is moot when an event occurs that renders it impossible for the reviewing court to fashion a remedy to the controversy.” . This Court generally does not decide moot issues. .

We remand for resentencing. We do not retain jurisdiction.

RIORDAN, P.J., and SAAD and MARKEY, JJ., concurred.

Notes

1
OV 19 may also be properly scored when the sentencing offense itself necessarily involves interfering with the administration of justice. . For example, OV 19 may be scored when the defendant is convicted of perjury. Id. at 338-340. Here, however, defendant‘s sentencing offense was possession of methamphetamine, which, ‍‌​​‌‌‌‌​‌​‌​​‌‌​‌​​‌‌​​‌‌‌‌‌‌‌​‌​​​‌‌‌​​​​​‌​‌‌​‍unlike perjury, does not inherently interfere with the administration of justice. Therefore, Underwood does not affect our analysis.
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