PEOPLE OF MI V CRAIG JEROME JORDAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 15, 2007
Plaintiff-Appellant,
v
No. 272318
Saginaw Circuit Court
LC No. 05-025628-FC
CRAIG JEROME JORDAN,
Defendant-Appellee.
Before: Talbot, P.J., and Fitzgerald and Kelly, JJ.
PER CURIAM.
Defendant pleaded guilty to second-degree murder, MCL 750.317, and first-degree child
abuse, MCL 750.136b(2). Defendant was initially sentenced to concurrent prison terms of 25 to
50 years for the second-degree murder conviction and 95 months to 15 years for the first-degree
child abuse conviction. Defendant subsequently filed a motion to correct an invalid sentence in
the trial court, challenging the scoring of offense variables (OV) 5 and (OV) 10. The trial court
upheld the scoring of OV 5, but altered the scoring of OV 10 from 10 points to 0 points. The
prosecutor appeals by leave granted the trial court’s resentencing of defendant to concurrent
prison terms of 22 years 6 months to 50 years for the second-degree murder conviction and 95
months to 15 years for the first-degree child abuse conviction. We vacate the amended sentence
and remand to the trial court for reinstatement of defendant’s original sentence.
This matter arises following the death of 10-month old, Breahna Tait (dob: 10/16/03)
from blunt force head trauma as the result of defendant striking the infant multiple times because
she was crying. Breahna was the infant daughter of defendant’s girlfriend, Angela Tait.
Defendant had been residing with Tait and her daughter for approximately two weeks before
Breahna’s death. On September 13, 2004, due to the unavailability of her regular childcare, Tait
left Breahna with defendant while she went to work. Defendant gave varying statements to
police regarding the source of the child’s injuries. In the presentence investigation report (PSIR)
defendant indicated that he awoke during the night because of the child’s crying and entered her
room. Defendant reported picking the infant up and going into the bathroom “at which time
Jordan reported that the infant spit up on his shoulder.” Defendant then reported “taking the
child by the head and forcing the child’s head with his hand backward forcing the child from his
arm onto the sink area” where Breahna “struck her head on the edge of the sink and fell to the
floor.” Defendant did not apprise anyone of injury to the child and merely placed her back in her
crib. In addition, the following day defendant reported that he was using a stereo for weight
lifting and the stereo “slipped from his hands and struck the child in the back of her head.”
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Alternatively, defendant also described to police striking the child in the back of the head with a
closed fist “four to five times” because she was crying during the night. The following day,
when the child was not responsive, defendant stated that he held the child at the waist and began
“shaking her to get her attention.” When the child was not responsive, defendant did not seek or
procure medical attention but, instead, phoned Tait at work to return home due to problems with
the infant.
Defendant pleaded guilty on July 25, 2005, and was originally sentenced on September 7,
2005. At the sentencing, the trial court specifically invited defendant to state any “comments
concerning any inaccuracies that might exist in the [presentence investigation] report itself or
any issues with scoring.” Defendant’s counsel replied:
There are no additions, deletions or corrections that need to be made to the
narrative portion. Your Honor, I have checked the sentencing guidelines, and
they appear to be accurately scored.
On May 16, 2006, defendant filed a motion in the trial court to correct an invalid sentence
asserting there was insufficient evidence in the record to support a score of 15 points for “Serious
Psychological injury requiring professional treatment to a homicide victim’s family” on OV 5.
Defendant also challenged the scoring of 10 points on OV 10 arguing there was no evidence of
defendant exploiting or manipulating the victim based on youth. The prosecutor responded that
the motion was untimely, citing the time constraints contained in MCR 7.208(B)(1) and MCR
7.212(A)(1)(a)(iii). The prosecutor also contested defendant’s allegations of error in the scoring
of the referenced offense variables.
On June 22, 2006, the trial court issued an opinion and order finding OV 10 was
improperly scored and changing the score from 10 points to 0 points. The trial court’s ruling was
based on its determination that:
The instructions for OB10 [sic] provide that points should not automatically be
scored for victim vulnerability just because one or more of the factors addressed
by OB 10 [sic] are present in the circumstances surrounding the sentencing
offense. The instructions further define “exploit” to mean that a victim is to have
been manipulated for the offenders [sic] selfish and unethical purposes.
The trial court did not alter defendant’s sentence for his conviction of first-degree child abuse,
but reduced defendant’s sentence on his conviction for second-degree murder to a minimum of
22 years 6 months, with a maximum of 50 years’ imprisonment.
On appeal, the prosecutor contends the trial court erred in resentencing defendant
asserting any error was waived at the original sentencing and that the original scoring of 10
points for OV 10 was correct. We review a trial court's determination on a motion for
resentencing for an abuse of discretion. People v Puckett, 178 Mich App 224, 227; 443 NW2d
470 (1989). This Court reviews a trial court's scoring decision by determining “whether the trial
court properly exercised its discretion and whether the record evidence adequately supports a
particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003); People
v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002).
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While not directly addressed by the parties, this Court notes the existence of a procedural
error regarding the manner by which defendant sought and procured resentencing in the lower
court. Notably, defendant never cited or identified in his motion the court rule authorizing or
justifying his delayed request for resentencing.1 The prosecutor compounded this error by
presuming defendant’s motion was brought pursuant to MCR 6.429. Momentarily ignoring the
issue of whether defendant’s sentence was actually “invalid” and accepting the propriety of the
filing of defendant’s motion under this court rule, we note that defendant failed to adhere to the
required timeframes to proceed under the referenced rule. MCR 6.429(B)(1) permits a defendant
to file a motion for resentencing within 42 days after entry of judgment. In this instance,
defendant did not comply as his motion to correct an invalid sentence was filed in excess of eight
months after the trial court imposed his initial sentence.2 Because defendant failed to file a
timely claim of appeal, it was permissible to file a motion for resentencing within six months as
allowed by MCR 6.429(B)(3). However, defendant did not adhere to this time restriction. As a
result, defendant was required to pursue an appeal of his sentence before this Court within the
12-month timeframe afforded by MCR 7.205(F)(3) rather than attempt to bring the issue directly
back before the trial court. Had this 12-month period expired, defendant would have, as a final
option, the opportunity to file a motion for relief from judgment in accordance with the
procedures detailed in subchapter 6.500 of the Michigan Rules of Court. MCR 6.429(B)(4). We
decline to determine whether defendant would have successfully met the requirements of MCR
6.502 and MCR 6.508 as beyond the scope of the issues presented in this appeal.
Although not raised by either party, we also believe it necessary to address defendant’s
assertion that his sentence was “invalid.” Our Supreme Court in People v Miles, 454 Mich 90,
96; 559 NW2d 299 (1997) defined invalid sentences:
A sentence is invalid when it is beyond statutory limits, when it is based upon
constitutionally impermissible grounds, improper assumptions of guilt, a
misconception of law, or when it conforms to local sentencing policy rather than
individualized facts. This Court has also repeatedly held that a sentence is invalid
if it is based on inaccurate information.
The trial court did not actually determine or state definitively that the sentence was invalid, but
merely concurred that OV 10 was improperly scored and amended defendant’s sentence.
1
Rather, citing to Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004)
defendant implied the trial court engaged in improper judicial fact finding when determining his
sentence. We would note that defendant’s assertion of error regarding the lower court’s original
sentencing determination is precluded as Michigan’s sentencing scheme has been held to be
unaffected by Blakely based on Michigan’s use of an indeterminate sentencing scheme. People v
Drohan, 475 Mich 140, 164; 715 NW2d 778 (2006); People v Claypool, 470 Mich 715, 730 n
14; 684 NW2d 278 (2004).
2
Because defendant failed to file a claim of appeal, the timeframes delineated by MCR
6.429(B)(2) are also not applicable.
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Defendant’s challenge to the scoring of OV 10 did not automatically render the sentence
invalid. The sentence, as originally imposed did not exceed statutory limits and was not based
on any “impermissible grounds or improper assumptions of guilt.” Miles, supra at 96.
Defendant’s affirmative concurrence with the content of the PSIR belies any assertion that the
sentence was invalid because it was not based “on individualized facts” or the use of “inaccurate
information.” As a result, the trial court lacked authority to resentence defendant as “the court
may not modify a valid sentence after it has been imposed.” MCR 6.429(A); People v
Bingaman, 144 Mich App 152, 158-159; 375 NW2d 370 (1984).
While not encompassed by this appeal, we note an issue remains regarding whether
defendant’s sentence was invalid based on a “misconception of law.” The 1989 staff comments
to MCR 6.429 further defines an “invalid sentence” as referring “to any error or defect in the
sentence or sentencing procedure that entitles a defendant to be resentenced or to have the
sentence changed.” This is consistent with this Court’s decision in People v Wybrecht, 222 Mich
App 160, 167; 564 NW2d 903 (1997), which precludes resentencing absent a “tangible legal or
procedural error.” At the original sentencing hearing, defendant’s counsel clearly and
unequivocally expressed his satisfaction and agreement with both the PSIR and the accuracy of
the guidelines scoring. This constituted a waiver by defendant and extinguished any claim of
error with regard to the scoring of OV 10. People v Carter, 462 Mich 206, 215; 612 NW2d 144
(2000). “Because defendant waived . . . his rights . . . there [was] no ‘error’ to review.” Id. at
219. Thus, defendant’s sentence was presumptively valid because it fell within the appropriate
guidelines range. As a result, given the facts before the trial court when sentencing occurred,
defendant has not demonstrated a misconception of the law by the trial court, as the sentence
imposed was within the guidelines range as calculated and affirmed by defendant.
Finally, we find that the initial scoring of OV 10 was proper. A trial court’s scoring of a
sentencing variable is reviewed by this Court for an abuse of discretion and to determine whether
the evidence of record supports the assigned score. Hornsby, supra at 468. “Scoring decisions
for which there is any evidence in support will be upheld.” Id. (citation omitted).
Defendant argued that the trial court improperly scored 10 points for OV 10. MCL
777.40 provides, in relevant part:
(1) Offense variable 10 is exploitation of a vulnerable victim. Score
offense variable 10 by determining which of the following apply and by assigning
the number of points attributable to the one that has the highest number of points:
***
(b) The offender exploited a victim’s physical disability, mental disability, youth
or agedness, or a domestic relationship, or the offender abused his or her authority
status…………………………………………………………………….10 points
(c) The offender exploited a victim by his or her difference in size or strength, or
both, or exploited a victim who was intoxicated, under the influence of drugs,
asleep, or unconscious……………………………………………………5 points
(d) The offender did not exploit a victim’s vulnerability………………….0 points
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Defendant cites to MCL 777.40(2), which provides that “[t]he mere existence of 1 or more
factors described in subsection (1) does not automatically equate with victim vulnerability.”
Specifically, defendant contends the record failed to demonstrate that he “exploited” the victim,
which is statutorily defined as the manipulation of “a victim for selfish or unethical purposes.”
MCL 777.40(3)(b). Defendant asserts the abusive incident occurred spontaneously and was the
product of frustration and, therefore, lacked any manipulative component because it was
unplanned. As determined by the trial court, the alteration of the scoring of OV 10 from 10
points to zero points, reduced the minimum term range of the sentencing guidelines for the
offense, resulting in defendant’s entitlement to resentencing.
Defendant cannot reasonably dispute the vulnerability of this victim. Breahna was 10
months of age and left in the sole care of defendant. She was neither sufficiently verbal nor
mobile to avoid defendant’s assault or to secure help. Because defendant was entrusted with the
minor child’s care, his assault constituted an abuse of his authority over the child. As such, we
find that there can be no legitimate contention of error regarding a determination of Breahna’s
vulnerability based on her “readily apparent susceptibility . . . to injury.” MCL 777.40(3)(c).
It is defendant’s contention that OV 10 was improperly scored because he did not
“exploit” or “manipulate [the] victim for selfish or unethical purposes.” We disagree.
According to the various explanations provided by defendant regarding the source or manner of
the infant’s injuries as documented in the PSIR, sufficient evidence existed within the record of
exploitation or manipulation by defendant to support a scoring of 10 points on this offense
variable. Initially, defendant alleged that he struck the child or caused her to be injured during
the night but did not seek medical attention for the child. Instead, defendant placed the child
back in her crib to manipulate the situation to avoid detection of his abusive behavior or to
selfishly obtain an undisturbed sleep. Even if defendant’s assertion that the minor child was
accidentally injured when he dropped a weighted object on her, defendant acknowledges he did
not seek medical attention despite the child’s lack of responsiveness. Instead, defendant
manipulated the situation by requesting the mother return from work to deal with the child to
potentially allow defendant to avoid responsibility or police involvement. Because the evidence
in the record supported the scoring of OV 10 at 10 points, the original sentence imposed by the
trial court fell within the properly scored guidelines range and defendant was not entitled to
resentencing.
We vacate the amended sentence and remand to the trial court for reinstatement of
defendant’s original sentence. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ E. Thomas Fitzgerald
/s/ Kirsten Frank Kelly
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