PEOPLE OF MI V RICHARD A KIMBLE
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 29, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122271
RICHARD A. KIMBLE,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We
granted
leave
to
appeal
to
consider
whether
defendant is entitled to resentencing where the trial court
improperly
777.22(1).
scored
offense
Defendant’s
variable
minimum
16
(OV
sentence,
as
16),
a
MCL
result,
exceeds the appropriate sentencing guidelines range, and
the
trial
court
did
not
articulate
compelling reason for this departure.
a
substantial
and
Defendant did not
argue that OV 16 should not be scored until filing his
application for leave to appeal with the Court of Appeals.
The Court of Appeals concluded that defendant is entitled
to resentencing because the scoring of OV 16 was plain
error.
We affirm the decision of the Court of Appeals.
I. FACTS
AND
PROCEDURAL HISTORY
Defendant shot and killed the victim so he could steal
the car she was driving for its wheel rims.
bench
trial,
murder
and
defendant
possession
was
of
convicted
a
firearm
Following a
of
while
second-degree
committing
attempting to commit a felony (felony-firearm).
or
The trial
court sentenced defendant to consecutive prison terms of
thirty
to
seventy
years
for
the
second-degree
murder
conviction and two years for the felony-firearm conviction.
The issue here pertains only to defendant’s sentence for
second-degree murder.
At
sentencing,
considers
destroyed,”
the
defendant
“property
should
be
argued
obtained,
scored
at
one
that
OV
damaged,
point
16,
which
lost
or
because
the
stolen car had a value of $200 or more, but not more than
$1,000, while the prosecutor argued that OV 16 should be
scored at five points because the stolen car had a value of
$1,000 or more, but not more than $20,000.
scored OV 16 at five points.
The trial court
Without the five points, the
appropriate minimum sentence range would have been 180 to
300 months, but, with the five points, the minimum sentence
2
range was 225 to 375 months.1
The trial court sentenced
defendant to a minimum term of 360 months for second-degree
murder.
Defendant appealed, arguing that OV 16 should not even
have been scored because it is only to be scored in crimes
against the person if the offense is home invasion.
777.22(1).
MCL
The prosecutor agreed that it should not have
been scored, but argued that defendant waived the error.
The Court of Appeals unanimously affirmed defendant’s
convictions,
but,
resentencing.2
in
a
split
decision,
remanded
for
We granted the prosecutor’s application for
leave to appeal and held defendant’s cross-application in
abeyance.3
II. STANDARD
This
case
presents
OF
an
REVIEW
issue
involving
the
interpretation of a statute and a court rule, which is a
question of law that we review de novo.
People v Petit,
466 Mich 624, 627; 648 NW2d 193 (2002).
1
If OV 16 were scored at one point, as defendant
argued at sentencing, the minimum sentence range would have
been 180 to 300 months.
2
252 Mich App 269; 651 NW2d 798 (2002).
3
468 Mich 870 (2003).
3
III. ANALYSIS
Under the statutory sentencing guidelines, the trial
court must score the applicable offense and prior record
variables
to
determine
minimum sentence.
the
appropriate
range
for
the
When the sentencing offense is a “crime
against a person,” as in this case, OV 16 is to be scored
only
where
the
sentencing
attempted home invasion.
offense
is
home
MCL 777.22(1).
invasion
or
The sentencing
offense in this case is second-degree murder.
Therefore,
the trial court clearly erred in scoring OV 16.
Although
defendant argued at sentencing that OV 16 should be scored
at one point instead of five points, defendant did not
raise the argument that OV 16 should not have been scored
at all until he filed his application for leave to appeal
with
the
Court
of
Appeals.
An
objection
based
on
one
ground is usually considered insufficient to preserve an
appellate attack based on a different ground.
People v
Bushard, 444 Mich 384, 390 n 4; 508 NW2d 745 (1993).
MCL 769.34(10) provides:
If
a
minimum
sentence
is
within
the
appropriate guidelines sentence range, the court
of appeals shall affirm that sentence and shall
not remand for resentencing absent an error in
scoring the sentencing guidelines or inaccurate
information
relied
upon
in
determining
the
defendant’s sentence. A party shall not raise on
appeal an issue challenging the scoring of the
sentencing guidelines or challenging the accuracy
4
of information relied upon in determining a
sentence
that
is
within
the
appropriate
guidelines sentence range unless the party has
raised the issue at sentencing, in a proper
motion for resentencing, or in a proper motion to
remand filed in the court of appeals.
The
Court
of
Appeals
majority
concluded
that
§
34(10)
precludes appellate review if the sentence is within the
appropriate guidelines range and the party failed to raise
the issue at sentencing, in a motion for resentencing, or
in a motion to remand.
However, § 34(10) does not preclude
appellate review if the sentence is outside the appropriate
guidelines range, even if the party failed to raise the
issue at sentencing, in a motion for resentencing, or in a
motion to remand.
Accordingly, the majority concluded that
appellate review is not precluded in this case because the
sentence here is outside the appropriate guidelines range.
The
Court
of
Appeals
dissent,
on
the
other
hand,
concluded that a scoring error resulting in a sentence that
is outside the appropriate guidelines sentence range is not
appealable
under
§
34(10)
unless
it
was
raised
at
sentencing, in a motion for resentencing, or in a motion to
remand.
By
appropriate
contrast,
guidelines
a
sentence
sentence
that
range
is
outside
because
the
inaccurate
information was relied upon is appealable even if it was
5
not raised at sentencing, in a motion for resentencing, or
in a motion to remand.
We agree with the Court of Appeals majority that there
is no basis in the statute for treating these two types of
challenges differently.
We also agree with the Court of
Appeals majority that, pursuant to § 34(10), 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
resentencing, or in a motion to remand.
sentence
is
within
the
appropriate
a
motion
for
However, if the
guidelines
sentence
range, it is only appealable if there was a scoring error
or inaccurate information was relied upon in determining
the sentence and the issue was raised at sentencing, in a
motion for resentencing, or in a motion to remand.
Under the Court of Appeals dissent’s view and the view
of the dissenting justices of this Court, a scoring error
that results in a sentence that is outside the appropriate
guidelines sentence range would not be appealable unless it
was
preserved
in
one
sentence of § 34(10).
sentence
within
of
the
§
34(10)
appropriate
of
the
ways
listed
in
the
We respectfully disagree.
provides
that
guidelines
a
The first
sentence
sentence
second
range
that
is
is
not
appealable unless there was a scoring error or inaccurate
6
information was relied upon.
this
statement
is
that
a
The necessary corollary of
sentence
that
is
outside
the
appropriate guidelines sentence range is appealable.
The second sentence of § 34(10) provides that, even
though a sentence that is within the appropriate guidelines
sentence range can be appealed if there was a scoring error
or inaccurate information was relied upon, it can only be
appealed if the issue was raised at sentencing, in a motion
for
resentencing,
or
in
a
motion
to
remand.
In
other
words, the second sentence simply describes how a party
must preserve a challenge to a sentence that is within the
appropriate
about
a
guidelines
challenge
to
sentence
a
range;
sentence
that
it
is
says
nothing
outside
the
appropriate guidelines sentence range.4
4
The dissenting justices argue that the first and
second sentences of the statute address two totally
different issues: the first sentence addresses under what
circumstances
the
Court
of
Appeals
may
remand
for
resentencing, while the second sentence addresses under
what circumstances a party may appeal. Post at 4.
The
first sentence states that “the court of appeals shall
affirm that sentence and shall not remand for resentencing
. . . .” § 34(10). The second sentence states that “[a]
party shall not raise on appeal . . . .” Id. If the Court
of Appeals must affirm the sentence, pursuant to the first
sentence, the appellant will not enjoy relief.
Likewise,
if the appellant is unable to raise appellate issues,
pursuant to the second sentence, the appellant will not
enjoy relief.
Although these sentences are worded
differently, they both pertain to the same issue, namely,
(continued…)
7
Because
appropriate
defendant’s
guidelines
sentence
sentence
is
range,
outside
his
the
sentence
is
appealable under § 34(10), even though his attorney failed
to raise the precise issue at sentencing, in a motion for
resentencing, or in a motion to remand.
However, because
defendant failed to raise the argument that OV 16 is not
applicable at all until his application for leave to appeal
with the Court of Appeals, defendant must satisfy the plain
error standard set forth in People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).
That is, defendant must show
that
1) error . . . occurred, 2) the error was plain,
i.e., clear or obvious, 3) and the plain error
affected
substantial
rights.
The
third
requirement generally requires a showing of
prejudice, i.e., that the error affected the
outcome of the lower court proceedings. [Id. at
763.]
In addition, defendant must show that the “error resulted
in the conviction of an actually innocent defendant” or
that
the
“error
‘seriously
public
affect[ed]
integrity
or
. . . .’”
under
which
8
of
a
judicial
fairness,
Id. (citation omitted).
(…continued)
the
circumstances
sentencing relief.
reputation
the
person
proceedings
may
obtain
First, as explained above, there was clearly error in
this case and the prosecutor concedes that the trial court
erred in scoring OV 16.
Second, the error was plain and
the prosecutor concedes that the error was plain.
MCL
777.22(1) could not be more clear that OV 16 is simply not
to be scored where the sentencing offense is second-degree
murder.
Third, defendant was clearly prejudiced by this
error.
As a result of the error, defendant received a
sentence five years in excess of that permitted by the
properly scored sentencing guidelines.
Finally, this error
“seriously affect[ed] the fairness, integrity [and] public
reputation of judicial proceedings.”
Id.
It is difficult
to imagine what could affect the fairness, integrity and
public reputation of judicial proceedings more than sending
an individual to prison and depriving him of his liberty
for
a
period
longer
than
authorized
by
the
law.5
Accordingly, defendant is entitled to resentencing under §
34 (10).
5
The dissenting justices conclude that “the scoring
error does not qualify as plain error that seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings . . . .” Post at 5. We respectfully
disagree, and believe that sending a person to prison for a
term several years in excess of what is permitted by the
law sufficiently constitutes a plain error that seriously
affects the fairness, integrity or public reputation of a
judicial proceeding.
9
The Court of Appeals dissent concluded that even if §
34(10) does not preclude relief, MCR 6.429(C) does.
MCR
6.429(C) provides:
A party may not raise on appeal an issue
challenging the accuracy of the presentence
report
or
the
scoring
of
the
sentencing
guidelines unless the party has raised the issue
at or before sentencing or demonstrates that the
challenge was brought as soon as the inaccuracy
could reasonably have been discovered. Any other
challenge may be brought only by motion for
relief from judgment under subchapter 6.500.
We agree with the Court of Appeals dissent that, under this
court rule, a scoring error is not appealable unless it was
raised at or before sentencing, regardless of whether the
resulting
sentence
is
inside
or
outside
the
appropriate
guidelines sentence range, except by way of a motion for
relief from judgment under subchapter 6.500.
Although defendant did not raise the precise scoring
error
at
or
before
sentencing,
defendant
entitled to relief under MCR 6.508(D)(3).
is
clearly
In order to be
entitled to relief under MCR 6.508(D)(3), both “good cause”
and “actual prejudice”6 must be established.
6
“Good cause"
Pursuant to MCR 6.508(D)(3)(b)(iv), with reference to
a sentence, actual prejudice means that the sentence is
invalid. Here, the sentence is invalid because it is five
years
in
excess
of
the
properly
scored
sentencing
guidelines and devoid of any finding of substantial and
(continued…)
10
can
be
established
counsel.
(1995).
by
proving
ineffective
assistance
of
People v Reed, 449 Mich 375, 378; 535 NW2d 496
To demonstrate ineffective assistance, it must be
shown that defendant’s attorney’s performance fell below an
objective standard of reasonableness and this performance
prejudiced him.
People v Pickens, 446 Mich 298, 338; 521
NW2d 797 (1994).
At oral argument, the prosecutor conceded
that defendant would be entitled to relief on the basis of
ineffective assistance of counsel and defendant’s appellate
counsel, who was also his trial counsel, admitted that OV
16 was scored where it obviously should not have been, that
he failed to bring this error to the court’s attention, and
that this failure ultimately resulted in a minimum sentence
that exceeds the upper limit of the appropriate guidelines
sentence range by five years.
Under these circumstances,
it is clear that both “good cause” and “actual prejudice”
have been established.
Because we find that defendant is entitled to relief
under
both
the
(…continued)
compelling reasons
guidelines range.
statute
to
and
deviate
11
the
court
from
the
rule,
properly
it
is
scored
unnecessary for us to decide whether the court rule or the
statute controls.7
IV. Conclusion
We affirm the decision of the Court of Appeals and
remand this case to the circuit court for resentencing.
Stephen J. Markman
Michael F. Cavanagh
Marilyn Kelly
Clifford W. Taylor
7
Effective immediately, this Court has amended MCR
6.429(C) to conform with MCL 769.34(10).
12
S T A T E
O F
M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 122271
RICHARD A. KIMBLE,
Defendant-Appellee.
_______________________________
WEAVER, J. (concurring in part and dissenting in part)
I concur in the majority’s conclusion that a scoring
error is not appealable under MCR 6.429(C) as currently
drafted
unless
it
was
raised
at
or
before
sentencing,
regardless of whether the resulting sentence was inside or
outside
the
appropriate
guidelines
sentence
range.
However, I dissent from the majority’s interpretation of
MCL
769.34(10)
and
its
order
remanding
this
case
for
resentencing on the basis of MCR 6.508(D)(3).
I agree with the Court of Appeals dissent by Judge
GRIFFIN and would hold that MCL 769.34(10) requires that
defendant preserve alleged errors in the scoring of offense
variables
and
that
the
plain
error
doctrine
does
justify reversal of defendant’s conviction in this case.
would affirm defendant’s sentence.
not
I
It is undisputed that offense variable 16 (OV 16) is
not applicable to this case.
is
whether
offense
defendant
variable
can
when
The question before the Court
challenge
failed
he
the
raise
to
scoring
the
of
the
issue
at
sentencing, in a motion for resentencing, or in a motion to
remand
filed
in
the
Court
of
Appeals.
Regarding
this
question, MCL 769.34(10) provides:
If
a
minimum
sentence
is
within
the
appropriate guidelines sentence range, the court
of appeals shall affirm that sentence and shall
not remand for resentencing absent an error in
scoring the sentencing guidelines or inaccurate
information
relied
upon
in
determining
the
defendant’s sentence. A party shall not raise on
appeal an issue challenging the scoring of the
sentencing guidelines or challenging the accuracy
of information relied upon in determining a
sentence
that
is
within
the
appropriate
guidelines sentence range unless the party has
raised the issue at sentencing, in a proper
motion for resentencing, or in a proper motion to
remand filed in the court of appeals.
The first sentence of the statute governs when the
Court of Appeals may remand for resentencing when a minimum
sentence
range.
an
is
within
the
appropriate
guidelines
sentence
Those circumstances are limited to where there is
“error
inaccurate
in
scoring
information
the
relied
defendant’s sentence.”
2
sentencing
upon
in
guidelines
determining
or
the
The second sentence of the statute shifts the focus to
when a party is permitted under MCL 769.34(10) to raise on
appeal an issue “challenging the scoring of the sentencing
guidelines or the accuracy of information relied upon in
determining
a
sentence
that
is
within
guidelines sentence range . . . .”
the
appropriate
The second sentence
provides that neither issue can be raised “unless the party
has raised the issue at sentencing, in a proper motion for
resentencing, or in a proper motion to remand filed in the
court of appeals.”
This
sentence
case
to
involves
fall
sentence range.
a
scoring
outside
the
error
that
appropriate
caused
a
guidelines
Thus, we consider whether the Legislature
intended to limit appeals of scoring errors regardless of
whether the sentence was within or outside the appropriate
guidelines sentence range.
The majority concludes that there is no basis in the
statute to conclude that the Legislature intended to limit
appeals of scoring errors differently from challenges to
the accuracy of the information relied on in determining a
sentence.
The majority bases this conclusion, however, on
its interpretation of the first sentence of the statute,
not
the
second
sentence
at
majority reasons:
3
issue
in
this
case.
The
The first sentence of §34(10) provides that
a sentence that is within the appropriate
guidelines sentence range is not appealable
unless there is a scoring error or inaccurate
information is relied upon.
The necessary
corollary of this statement is that a sentence
that
is
outside
the
appropriate
range
is
appealable. [Ante at 6-7 (emphasis in original).]
I respectfully disagree with the majority’s logic.
As
noted above, the first sentence of the statute addresses
when the Court of Appeals may remand for resentencing, not
when a party may appeal.
The first sentence allows the
Court of Appeals to remand for resentencing scoring errors
if a minimum sentence is within the appropriate guidelines
sentence range.
sentence
reveals
However, the plain language of the second
that
the
only
scoring
errors
that
the
Legislature intended the Court of Appeals to review at all
are those that were preserved by a party “at sentencing, in
a proper motion for resentencing, or in a proper motion to
remand filed in the court of appeals.”
As reasoned by
Judge GRIFFIN’S Court of Appeals dissent in part:
There
are
two
disjunctive
phrases—
“challenging
the
scoring
of
the
sentencing
guidelines” and the “challenging the accuracy of
information relied upon in determining a sentence
that
is
within
the
appropriate
guidelines
sentence range”—that establish two distinct and
separate situations to which the statute applies.
Only the former circumstances apply herein, where
defendant is “challenging the scoring of the
sentencing guidelines . . . .” . . .
4
In the present case, the alleged scoring
error issue has been forfeited because defendant
failed to “raise[] the issue at sentencing, in a
proper motion for resentencing, or in a proper
motion to remand filed in the court of appeals.”
MCL 769.34(10). [252 Mich App 285-286.]
Thus,
I
would
hold
that
pursuant
to
MCL
769.34(10),
defendant cannot challenge the scoring of OV 16 because he
did not raise the issue as required by the statute.
I also
agree with Judge GRIFFIN’S conclusion that the scoring error
does not qualify as plain error that seriously affected the
fairness,
integrity
or
public
reputation
of
judicial
proceedings under People v Carines, 460 Mich 750; 597 NW2d
130 (1999).
The
majority
also
premises
its
decision
to
order
resentencing on its conclusion sua sponte that defendant is
entitled
to
relief
from
judgment
under
MCR
6.508(D)(3).
The majority’s eagerness to serve as advocate, trial judge,
and
appellate
court
is
unnecessary
and
inappropriate.
First, it cannot be assumed that defendant will file a
motion
for
guarantee
relief
that
from
judgment.
defendant
would
Second,
carry
the
there
is
burden
no
of
establishing entitlement to the relief requested under MCR
6.508(D).
Without the benefit of argument and briefing, I
would not step into the shoes of the trial court and decide
an issue that has not even been raised by a party.
5
Third,
the possibility that defendant could successfully file a
motion
for
relief
from
judgment
does
not
necessitate
concluding that defendant would in this case, because the
defendant is free to file such a motion regardless of how
the question of statutory interpretation is resolved.
In
conclusion,
I
concur
in
the
majority
conclusion
that a scoring error is not appealable under MCR 6.429(C)
as currently drafted unless it was raised at or before
sentencing, regardless whether the resulting sentence was
inside
or
outside
the
appropriate
guidelines
sentence
range.
However, I dissent from the majority’s interpretation
of MCL 769.34(10) and its order remanding this case for
resentencing on the basis of MCR 6.508(D)(3) and Carines.
I would hold that MCL 769.34(10) requires that defendants
preserve alleged errors in the scoring of offense variables
and that the plain error doctrine requires no other result.
I would affirm defendant’s sentence.
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
6
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