PEOPLE OF MI V LATASHA GENISE MORSON
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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 JULY 30, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 124083
LATASHA GENISE MORSON,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
Defendant Latasha Morson waited in a car while her
friend, Iesha Northington, robbed Deborah Sevakis of her
purse at gunpoint, using a gun obtained from defendant.
As
Northington fled the scene, she shot James Bish, who tried
to stop her and recover Sevakis’s purse.
Following a bench
trial, defendant was convicted of armed robbery,1 conspiracy
1
MCL 750.529.
to commit armed robbery,2 and two counts of possession of a
firearm
during
the
commission
of
a
felony.3
She
was
sentenced to concurrent terms of eight to thirty years for
the armed robbery and conspiracy convictions,4 to be served
consecutively
to
the
mandatory
two-year
sentence
for
felony-firearm.
The first issue to be addressed is how many points
defendant could be properly assessed at sentencing under
offense variables (OV) 1 and 3.
OV 1, which considers
aggravated
OV
physical
highest
use
of
injury
number
a
to
of
weapon,
the
and
victim,
points
be
3,
which
require
assessed
and
both
that
considers
that
the
multiple
offenders be assessed the same number of points for these
variables.
When
Iesha
Northington’s
armed
robbery
conviction was scored on May 10, 2000, she was assessed
fifteen points for OV 1 and zero points for OV 3.
But when
defendant’s armed robbery conviction was scored on December
10, 2001, the sentencing court assessed defendant twentyfive points for OV 1 and twenty-five points for OV 3.
2
MCL 750.157(a).
3
The
MCL 750.227b.
4
The Court of Appeals opinion incorrectly states the
sentence as eight to twenty years.
The sentencing
transcript, sentencing information report, and judgment of
sentence all state the term as eight to thirty years.
2
Court of Appeals reversed the decision of the sentencing
court on this issue, concluding that the multiple offender
provision required that defendant’s scores on OV 1 and OV 3
be
the
same
as
those
previously
assessed
to
Iesha
Northington for OV 1 and OV 3.
The second issue that must be decided is how many
points defendant could be properly assessed under OV 9,
which
considers
the
number
of
victims.
The
sentencing
court assessed ten points under this variable, concluding
that there were two victims.
The Court of Appeals reversed
and concluded that defendant should be assessed zero points
because there was one victim.
We affirm in part and reverse in part.
The Court of
Appeals correctly concluded that pursuant to the sentencing
guidelines, defendant should have been assessed the same
scores
for
assessed.
OV
1
and
OV
3
that
Iesha
Northington
was
But the Court of Appeals incorrectly held that
under OV 9, defendant should have been assessed zero points
because
language
danger.
there
of
was
the
only
one
guidelines,
Consequently,
the
victim.
two
people
sentencing
assessed defendant ten points under OV 9.
Pursuant
were
court
to
placed
the
in
properly
We remand this
case to the circuit court for resentencing consistent with
this opinion.
3
Facts
Deborah Sevakis was robbed of her purse at gunpoint by
Iesha Northington as Sevakis was walking down Nine Mile
Road
in
Ferndale
at
about
10:00
p.m.
on
May
29,
1999.
Sevakis testified that someone tapped her on the shoulder
and demanded her purse.
When Sevakis initially refused to
give up her purse, Northington pointed a gun at her.
As
Northington ran off with the purse, Sevakis yelled, “Call
9-1—1.
was
I’ve been robbed.”
standing
nearby
after Northington.
and
Immediately, James Bish, who
had
witnessed
the
robbery,
ran
When Bish told Northington to drop the
purse, Northington shot him.
In
her
written
statement
to
the
police,
defendant
stated that as she and Northington were driving down Nine
Mile Road, they observed a lady walking with her purse and
discussed robbing her.
Northington got out of the car
while defendant drove to a gas station.
observed
Northington
black purse.
running
toward
the
Defendant next
car,
carrying
a
She also saw a man running and holding his
chest; Northington told her that she thought she had shot
the man.
Defendant admitted that she had given Northington
the gun that Jermaine Calloway had given her.
Defendant
stated that she and Northington stopped to get gas, then
4
went to a Kmart store, where they tried unsuccessfully to
use Sevakis’s credit card.
Following a bench trial, defendant was convicted of
armed robbery, conspiracy to commit armed robbery, and two
counts of felony-firearm.5
Northington,
who
was
Before defendant’s sentencing,
sentenced
on
May
10,
2000,
was
assessed fifteen points on OV 1 and zero points on OV 3.
At
defendant’s
sentencing
on
December
10,
2001,
she
asserted that she should be assessed the same number of
points as Ms. Northington on OV 1 and OV 3 when defendant’s
armed
robbery
conviction
was
scored.
But
the
court
assessed defendant twenty-five points on OV 1 and twentyfive points on OV 3 when scoring defendant’s armed robbery
conviction.
The trial court also assessed defendant ten
points on OV 9.
Defendant appealed, and the Court of Appeals reversed
and
remanded
for
resentencing.6
The
Court
of
Appeals
concluded that defendant should have been assessed the same
scores
as
Northington
on
OV
1
and
OV
3
for
the
armed
5
Defendant and Northington were tried separately.
Though Northington was also charged with and convicted of
assault with intent to commit murder, defendant was not.
6
Unpublished opinion per curiam, issued May 29, 2003
(Docket No. 238750).
5
robbery
conviction.
concluded
that
Additionally,
defendant
should
the
have
Court
been
of
Appeals
assessed
zero
points on OV 9 because there was only one victim, not two.
This Court granted the prosecution’s application for
leave to appeal.
7
7
469 Mich 966 (2003).
The Court’s grant order
instructed the parties to include among the issues briefed:
(1) how subsection 1 of MCL 777.31 (offense
variable one [OV 1]), requiring that the "highest
number of points" be assigned, should be applied
in light of subsection 2(b), requiring that "all
offenders" in multiple offender cases be assessed
the same number of points; (2) similarly, how
subsection 1 of MCL 777.33 (OV 3), requiring that
the "highest number of points" be assigned,
should be applied in light of subsection 2(a),
requiring
that
‘all
offenders’
in
multiple
offender cases be assessed the same number of
points;
(3)
whether
MCL
777.31(2)(b)
and
777.33(2)(a) apply where all "offenders" have not
been charged with identical crimes; (4) whether
under MCL 777.31(2)(b) and 777.33(2)(a) the trial
court is bound by a previously imposed sentence
upon a codefendant where that sentence is based
upon an erroneous offense variable score; (5)
whether under MCL 777.39 (OV 9) the number of
persons placed in danger includes only those
persons who are placed in danger during the
particular crime for which defendant is being
scored (here, armed robbery), or whether that
number includes all persons placed in danger at
any point during the criminal episode; and (6)
whether the due process clauses of the state and
federal
constitutions
require
that
the
prosecution prove the elements of a crime that
someone else committed before a court can base a
defendant's sentence on the actions of the other
person. See Harris v United States, 536 US 545
(2002), Apprendi v New Jersey, 530 US 466 . . .
(continued…)
6
Standard of Review
The
issues
interpretation
in
and
this
case
application
concern
of
the
the
proper
legislative
sentencing guidelines, MCL 777.11 et seq., which are legal
questions
that
this
Court
reviews
de
novo.
People
Perkins, 468 Mich 448, 452; 662 NW2d 727 (2003).
v
When
construing a statute, this Court’s primary goal is to give
effect
to
the
intent
of
the
Legislature.
We
construing the language of the statute itself.
language
is
unambiguous,
we
give
the
words
meaning and apply the statute as written.
begin
by
Where the
their
plain
People v Morey,
461 Mich 325, 330; 603 NW2d 250 (1999).
Analysis
Generally, to determine a minimum sentence range under
the legislative sentencing guidelines, the sentencing court
must
first
777.21(1)(a).
determine
The
the
sentencing
offense
court
category.
must
then
MCL
determine
which offense variables (OV) are applicable, score those
variables, and total the points to determine the offender’s
(…continued)
(2000), and Washington v Blakely, 111 Wash App
851
(2002),
cert
gtd
sub
nom
Blakely
v
Washington, [124 S Ct 429 (2003)].
7
offense variable level.
Id.
The sentencing court also
scores all prior record variables.
offender’s
offense
variables
MCL 777.21(1)(b).
score
and
prior
The
record
variables score are then used with the sentencing grids to
determine the recommended minimum sentence range under the
guidelines.
MCL 777.21(1)(c).
In this case, the sentencing issues presented arise
out of defendant’s armed robbery conviction, MCL 750.529.
Under the guidelines, armed robbery is categorized as a
crime against a person.
MCL 777.16y.
MCL 777.22(1), as
amended by 2002 PA 143, provided:
For all crimes against a person, score
offense variables 1, 2, 3, 4, 7, 8, 9, 10, 11,
12, 13, 14, 19, and 20. Score offense variables
5 and 6 for homicide, attempted homicide,
conspiracy or solicitation to commit a homicide,
or assault with intent to commit murder.
Score
offense variable 16 under this subsection for a
violation or attempted violation of . . . MCL
750.110a.
Score offense variables 17 and 18 if
an element of the offense or attempted offense
involves the operation of a vehicle, vessel, ORV,
snowmobile, aircraft, or locomotive.
At issue are defendant’s scores for OV 1, OV 3, and OV 9.
OV 1 and OV 3
OV
1
assesses
points
for
the
aggravated
use
of
a
weapon, MCL 777.31, and OV 3 assesses points for physical
injury to a victim, MCL 777.33.
8
This case concerns how
these two variables are to be scored in cases involving
multiple offenders.
MCL 777.31 provides in part:
(1) Offense variable 1 is aggravated use of
a weapon. Score offense variable 1 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:
(a) A firearm was discharged at or toward a
human being or a victim was cut or stabbed with a
knife or other cutting or stabbing weapon......25
points
* * *
(c) A firearm was pointed at or toward a
victim
or
the
victim
had
a
reasonable
apprehension
of
an
immediate
battery
when
threatened with a knife or other cutting or
stabbing weapon................15 points
(d) The victim was touched by any other type
of weapon...................10 points
(e)
A
weapon
implied.......5 points
was
(f)
No
aggravated
occurred.........0 points
use
displayed
of
a
or
weapon
(2) All of the following apply to scoring
offense variable 1:
(a) Count each person who was placed
danger of injury or loss of life as a victim.
in
(b) In multiple offender cases, if 1
offender is assessed points for the presence or
use of a weapon, all offenders shall be assessed
the same number of points.
(c) Score 5 points if an offender used an
object to suggest the presence of a weapon.
(d) Score 5 points if an offender used a
chemical irritant, chemical irritant device,
9
smoke device, or imitation harmful substance or
device.
(e) Do not score 5 points if the conviction
offense is a violation of . . . MCL 750.82 and
750.529. [Emphasis added.][8]
MCL 777.33 provides in part:
(1) Offense variable 3 is physical injury to
a victim. Score offense variable 3 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:
(a) A victim was killed...........100 points
(b) A victim was killed...........50 points
(c)
Life
threatening
or
incapacitating
injury
occurred
victim........25 points
permanent
to
a
(d)
Bodily
injury
requiring
medical
treatment occurred to a victim........10 points
(e) Bodily injury not requiring medical
treatment occurred to victim...........5 points
(f) No physical injury
victim.............5 points
occurred
to
a
(2) All of the following apply to scoring
offense variable 3:
(a) In multiple offender cases, if 1
offender is assessed points for death or physical
injury, all offenders shall be assessed the same
number of points.
8
Some amendments were made to the statute after the
crime in the present case occurred.
Subsection 1(d) was
added in 2001. In 2002, amendments added subsection 1(b),
which scores twenty points for exposure to harmful
substances or incendiary devices, and subsection 3, which
defines harmful substances and incendiary devices.
10
* * *
(d) Do not score 5 points if bodily injury
is an element of the sentencing offense.
(3) As used in this section, “requiring
medical treatment” refers to the necessity for
treatment and not the victim's success in
obtaining treatment. [Emphasis added.][9]
When
robbery
the
sentencing
conviction,
it
court
scored
assessed
defendant’s
defendant
armed
twenty-five
points on OV 1 for the shooting of Bish.
But when Iesha
Northington
for
robbery
points
had
before
under
previously
defendant,
OV
1.
been
she
sentenced
was
Similarly,
assessed
on
OV
3,
the
only
armed
fifteen
defendant
was
assessed twenty-five points for the shooting of Bish, while
Iesha Northington had been assessed zero points.
Focusing
on
subsection
1
of
each
statute,
the
prosecution contends that defendant may be assessed twentyfive
points
robbery
for
OV
conviction
1
and
because
OV
3
when
subsection
scoring
1
the
requires
armed
the
sentencing court to assess the “highest number of points”
and because the sentencing court should not be bound to
apply “inaccurate” scores.
Defendant, on the other hand,
9
This statute was revised in 2003, after the crime in
this case was committed.
The amendments, which increased
the score imposed under 1(b) from thirty-five points to
fifty points and made corresponding revisions to 2(c), do
not affect the present case.
11
asserts that subsection 2 of each statute requires that
defendant, for her armed robbery conviction, be assessed
the same scores for OV 1 and OV 3 that Iesha Northington
was assessed when scored for armed robbery.
On the facts
before us, we agree with defendant that the plain language
of subsection 2 requires that defendant, when scored on the
armed robbery conviction, be assessed the same scores on OV
1 and OV 3 that Iesha Northington was previously assessed
on those variables when she was scored for armed robbery.10
Each multiple offender provision states that if one
offender
is
assessed
points
under
the
variable,
“all
offenders shall be assessed the same number of points.”
MCL 777.31(2)(b), MCL 777.33(2)(a)(emphasis added).11
While
10
Because the scoring issues in this case can be
resolved under the plain language of the statute, it is
unnecessary
to
address,
as
do
the
concurring
and
concurring/dissenting opinions, whether armed robbery is a
transactional offense. See concurring opinion of Corrigan,
C.J., at 1-5, 10-11 and partially concurring and partially
dissenting opinion of Markman, J., at 7 n 1. Additionally,
it is unnecessary to draw the sharp lines that Justice
Markman attempts to draw between “offenses” stemming from
this event. See infra at 3-6.
11
We note that there is no language in either statute
to suggest that the multiple offender provision applies
only when “offenders” are charged with identical crimes.
Thus, the fact that Northington was charged with additional
crimes—namely, assault with intent to murder—does not mean
that the multiple offender provisions do not apply to the
armed robbery convictions arising from the incident.
12
we agree that the sentencing court should not be bound to
apply an erroneous score in the multiple offender context,
we note that the prosecution does not characterize Iesha
Northington’s scores on OV 1 and OV 3 of her armed robbery
conviction
as
inaccurate
or
erroneous.
In
fact,
the
prosecution acknowledged in its brief that Northington’s
scores were not disputed by the prosecution at sentencing.12
Rather,
the
prosecution’s
argument
seems
to
be
that
whenever it appears possible that a higher score could be
argued
for
court
is
under
not
the
bound
variables,
by
the
a
subsequent
prior
score
sentencing
because
the
sentencing court is required to assess the “highest number
of points.”
We find such analysis contrary to the plain
language
the
court
to
of
assess
statute,
which
the
number
same
requires
of
the
points
sentencing
to
multiple
offenders.13
12
Compare People v Libbett, 251 Mich App 353, 366; 650
NW2d 407 (2002), in which it was “undisputed” that the
first offender sentenced had been scored improperly on OV
1.
13
Justice Young opines in his partially concurring and
partially dissenting opinion that the multiple offender
provision does not require a comparison of the OV scores
for identical crimes (i.e., comparing Northington’s armed
robbery OV 1 score with defendant’s armed robbery OV 1
score) but that the provision contemplates simply the
comparison of OV scores.
Post at 4-5. Not only is this
inconsistent with MCL 777.21(2), which requires the
(continued…)
13
Further, we reject the argument that our conclusion
would read the “highest number of points” requirement out
of the statute.
When the sentencing court assesses points
for the first offender, it must assess the “highest number
of points” that can be assessed under the statute.
Iesha
Northington’s
scores
were
inaccurate
or
If
erroneous
because the sentencing court failed to assess the highest
number of points, the prosecution should have challenged
the
scores
at
Northington’s
sentencing.
But
the
prosecution acknowledges that Northington’s scores were not
disputed
scores
and
it
does
Northington
not
argue
received
to
under
this
OV
1
Court
and
OV
that
the
3
were
(…continued)
sentencing court to score each offense, but such a reading
may lead to illogical results.
Suppose that defendant,
like Northington, had also been convicted of assault with
intent to commit murder.
Under Justice Young’s theory,
since the sentencing court would only compare the OV 1
scores, and not the OV scores received for a specific
offense, presumably defendant could receive twenty-five
points under OV 1 for both her assault with intent to
murder conviction and her armed robbery conviction because
the sentencing court, looking at only the OV 1 scores,
could simply give defendant the highest OV 1 score—25
points—that Northington received under OV 1 when her
offenses were scored.
Or suppose that defendant was
convicted of an additional crime that Northington was not.
Under Justice Young’s theory, Northington’s scores for an
offense variable would be considered when defendant is
subsequently scored and sentenced for the additional
offense. This would be another illogical result of Justice
Young’s theory.
14
erroneous.
Consequently,
in
the
absence
of
any
clear
argument that the scores assessed to Northington under OV 1
and OV 3 were incorrect, the sentencing court should have
assessed
defendant
the
same
number
of
points
that
were
assessed to Northington for OV 1 and OV 3 when her armed
robbery conviction was scored:
fifteen points and zero
points.
For
these
reasons,
we
affirm
the
Court
of
Appeals
conclusion concerning defendant’s scores for OV 1 and OV 3.
OV 9
Offense variable 9 assesses points on the basis of the
number of victims.
MCL 777.39 provides:
(1) Offense variable 9 is number of victims.
Score offense variable 9 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:
(a) Multiple deaths occurred......100 points
(b) There were 10 or more victims.......25
points
(c) There were 2 to 9 victims..........10
points
(d) There were fewer than 2 victims.......0
points
(2) All of the following apply to scoring
offense variable 9:
(a) Count each person who was placed
danger of injury or loss of life as a victim.
15
in
(b) Score 100 points only in homicide cases.
[Emphasis added.]
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
victim of the armed robbery.
that
Sevakis
was
the
only
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
sentencing
robbery
court
of
properly
Sevakis.14
counted
Consequently,
Bish
as
a
victim
the
and
properly scored defendant under OV 9.
14
Justice
Markman,
in
his
concurring/dissenting
opinion, fails to apply the plain language of the statute,
which, as explained, requires the sentencing court to count
“each person who was placed in danger of injury or loss of
life” as a victim. MCL 777.39(2)(a).
16
Conclusion
We
conclude
that
pursuant
to
the
language
of
the
sentencing guidelines, defendant should have been assessed
the same number of points on OV 1 and OV 3 that Iesha
Northington was assessed when scored on the armed robbery
conviction.
Unless the prosecution can demonstrate that
the number of points assessed to the prior offender was
erroneous or inaccurate, the sentencing court is required
to follow the plain language of the statute, which requires
the court to assess the same number of points on OV 1 and
OV
3
to
multiple
offenders.
The
prosecution
has
not
alleged that Northington’s score on these variables was in
error.
Consequently,
conclusion
that
we
defendant
affirm
should
the
have
Court
been
of
Appeals
assessed
the
same number of points as Northington on OV 1 and OV 3.
Additionally, we conclude that defendant was properly
assessed
ten
points
by
the
sentencing
court
for
OV
9
because there were two people placed in danger of injury or
loss
of
bystander
life:
who
Sevakis,
responded
who
to
17
was
robbed,
Sevakis’s
and
call
Bish,
for
a
help.
Accordingly,
the
decision
of
the
Court
of
Appeals
is
court
for
reversed on this point.15
We
remand
the
case
to
the
circuit
resentencing consistent with this opinion.
Elizabeth A. Weaver
Maura D. Corrigan
Michael F. Cavanagh
Marilyn Kelly
15
Given our resolution of the sentencing issues in this
case, it is unnecessary to address whether due process
requires that the prosecution prove the elements of a crime
that someone else committed before a court can base a
defendant’s sentence on the actions of the other person.
18
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 124083
LATASHA GENISE MORSON,
Defendant-Appellee.
_______________________________
CORRIGAN, C.J.
(concurring).
I concur in the majority’s result for the sake of
reaching a clear rule regarding the legislative sentencing
guidelines
and
implementing
providing
the
direction
guidelines.
I
to
trial
believe
courts
that
in
offense
variables 1 (OV 1) and 3 (OV 3), however, contain language
that
may
be
instant case.
contradictory
in
some
cases,
such
as
the
I further believe that armed robbery is a
transactional offense and thus concur with the majority’s
conclusion that the trial court properly assessed defendant
ten points under OV 9.
I.
ARMED ROBBERY IS A TRANSACTIONAL OFFENSE
At the time that defendant and Northington committed
the armed robbery in this case, the armed robbery statute,
MCL 750.529, provided, in part:1
Any person who shall assault another, and
shall feloniously rob, steal and take from his
person, or in his presence, any money or other
property, which may be the subject of larceny,
such robber being armed with a dangerous weapon,
or any article used or fashioned in a manner to
lead the person so assaulted to reasonably
believe it to be a dangerous weapon, shall be
guilty of a felony, punishable by imprisonment in
the state prison for life or for any term of
years.
In People v Randolph, 466 Mich 532, 551; 648 NW2d 164
(2002),
a
majority
“transactional
approach”
of
this
to
Court
unarmed
rejected
robbery.
the
Under
the
transactional approach, “a defendant has not completed a
robbery
until
he
has
escaped
with
stolen
merchandise.
Thus, a completed larceny may be elevated to a robbery if
the
defendant
reaching
omitted).
uses
temporary
force
after
safety.”
the
Id.
taking
at
535
and
before
(citations
A majority of this Court determined, on the
basis of the language of the unarmed robbery statute in
existence at that time and on the common-law history of
1
The Legislature amended MCL 750.529 after the armed
robbery in this case. This amendment is discussed in note
2, infra.
2
unarmed
robbery,
that
the
force
used
to
accomplish
taking must be contemporaneous with the taking.
536.
the
Id. at
In so holding, the majority overruled four Court of
Appeals
cases,
including
three
involving
armed
robbery,
People v Tinsley, 176 Mich App 119; 439 NW2d 313 (1989);
People v Turner, 120 Mich App 23; 328 NW2d 5 (1982); and
People v Sanders, 28 Mich App 274; 184 NW2d 269 (1970).
Randolph, supra at 546.
The
above
portion
cases
Randolph
did
of
the
involving
not
Randolph
armed
involve
opinion
robbery
armed
is
robbery.
overruling
dicta
the
because
Further,
the
unarmed robbery statute at issue in Randolph, MCL 750.530,
was significantly different than the armed robbery statute
at issue in the instant case.
The statute at issue in
Randolph stated:
Any person who shall, by force or violence,
or by assault or putting in fear, feloniously
rob, steal and take from the person of another,
or in his presence, any money or other property
which may be the subject of larceny, such robber
not being armed with a dangerous weapon, shall be
guilty of a felony, punishable by imprisonment in
the state prison not more than 15 years.
[Emphasis added.]
The armed robbery statute at issue in this case, however,
does not contain the above emphasized language that the
Randolph majority found required a taking contemporaneous
with
the
use
of
force,
violence,
3
or
putting
in
fear.
Rather,
MCL
taking.
750.529
merely
required
an
assault
“and”
a
Thus, the majority opinion in Randolph did not
implicate armed robbery, and the armed robbery statute at
issue
in
this
case
followed
a
transactional
approach
because nothing in the statute required that the use of
force be contemporaneous with the taking.2
2
The Legislature effectively overruled Randolph after
this Court released its decision in that case. MCL 750.530
now provides:
(1)
A
person
who,
in
the
course
of
committing a larceny of any money or other
property that may be the subject of larceny, uses
force or violence against any person who is
present, or who assaults or puts the person in
fear, is guilty of a felony punishable by
imprisonment for not more than 15 years.
(2) As used in this section, “in the course
of committing a larceny” includes acts that occur
in an attempt to commit the larceny, or during
commission of the larceny, or in flight or
attempted flight after the commission of the
larceny, or in an attempt to retain possession of
the property.
Thus, effective July 1, 2004, the Legislature has
explicitly stated that unarmed robbery is a transactional
offense.
The Legislature also amended the
statute, MCL 750.529, which now provides:
armed
robbery
A person who engages in conduct proscribed
under section 530 and who in the course of
engaging in that conduct, possesses a dangerous
weapon or an article used or fashioned in a
manner to lead any person present to reasonably
believe the article is a dangerous weapon, or who
represents orally or otherwise that he or she is
(continued…)
4
II. OV 1 and OV 3
Because armed robbery is a transactional offense, and
Northington shot Bish immediately after she stole Sevakis’
purse and before she reached a place of temporary safety,
the
trial
determining
court’s
consideration
defendant’s
arguably proper.3
score
of
under
the
OV
1
shooting
and
OV
when
3
was
OV 1, MCL 777.31, involves the aggravated
(…continued)
in possession of a dangerous weapon, is guilty of
a felony punishable by imprisonment for life or
for any term of years. If an aggravated assault
or serious injury is inflicted by any person
while violating this section, the person shall be
sentenced to a minimum term of imprisonment of
not less than 2 years.
This case involves the version of MCL 750.529 in existence
before the amendment effective July 1, 2004.
3
I disagree with
Justice Markman that once all the
elements of the armed robbery were completed, no subsequent
use of force to help Northington retain possession of
Sevakis’ purse could be considered a continuation of the
armed robbery. See post note 1. Northington shot Bish in
an attempt to retain possession of the purse.
Thus, the
shooting occurred in furtherance of the armed robbery and
is properly considered a continuation of the robbery under
the transactional approach.
If, as recognized in Justice
Markman’s Randolph dissent, “a defendant has not completed
a robbery until he has escaped with stolen merchandise” and
reached a place of temporary safety, Randolph, supra at
535, then, contrary to Justice MARKMAN’s contention in note
1, post, the armed robbery in this case was not complete
immediately after Northington acquired Sevakis’ purse
because Northington had not yet reached a place of
temporary safety. Accordingly, the use of force subsequent
to the actual taking itself committed in an attempt to
retain possession of the purse was a part of the armed
(continued…)
5
use of a weapon.
armed
robbery
in
At the time that defendant committed the
this
case,
that
section
provided,
in
relevant part:4
(1) Offense variable 1 is aggravated use
a
weapon.
Score
offense
variable
1
determining which of the following apply and
assigning the number of points attributable
the one that has the highest number of points:
of
by
by
to
(a) A firearm was discharged at or toward a
human being or a victim was cut or stabbed with a
knife or other cutting or stabbing weapon.....25
points
(b) A firearm was pointed at or toward a
victim
or
the
victim
had
a
reasonable
apprehension
of
an
immediate
battery
when
threatened with a knife or other cutting or
stabbing weapon........15 points
* * *
(…continued)
robbery. See People v Velasquez, 189 Mich App 14, 17; 472
NW2d 289 (1991) (use of force after taking in an attempt to
retain possession of property constitutes force or coercion
for armed robbery); People v Tinsley, 176 Mich App 119,
121; 439 NW2d 313 (1989) (because robbery is a continuous
offense, the use of force after a taking in order to retain
stolen property constitutes force for purposes of armed
robbery statute).
In any event, the views expressed by
Justice MARKMAN could not have survived the amendments of MCL
750.529 and MCL 750.530. Under those amendments, effective
July 1, 2004, acts of force or violence during flight or
attempted flight after acquiring the stolen property or in
an attempt to retain possession of the stolen property
occur during “the course of committing” the robbery.
See
note 2, supra.
4
The Legislature amended MCL 777.31 after the crime in
this case, but the amendments are not relevant to this
appeal. See ante note 8.
6
(2) All of the following apply to scoring
offense variable 1:
(a) Count each person who was placed
danger of injury or loss of life as a victim.
in
(b)
In multiple offender cases,
if 1
offender is assessed points for the presence or
use of a weapon, all offenders shall be assessed
the same number of points. [Emphasis added.]
The trial court also assessed twenty-five points under
OV 3.
victim.
robbery
OV 3, MCL 777.33, involves physical injury to a
At the time that defendant committed the armed
in
this
case,
MCL
777.33
provided,
in
relevant
part:5
(1) Offense variable 3 is physical injury
a
victim.
Score
offense
variable
3
determining which of the following apply and
assigning the number of points attributable
the one that has the highest number of points:
to
by
by
to
* * *
(c)
Life
threatening
or
incapacitating
injury
occurred
victim.............25 points
(d)
Bodily
injury
requiring
treatment
occurred
to
victim....................10 points
5
permanent
to
a
medical
a
Like OV 1, the Legislature amended MCL 777.33 after
the armed robbery in this case.
The amendments do not
affect the result of this case.
See Justice WEAVER’s
opinion, note 9.
7
(e) Bodily injury not requiring
treatment
occurred
to
victim.....................5 points
medical
a
(f) No physical injury occurred to a
victim...................................0 points
(2) All of the following apply to scoring
offense variable 3:
(a)
In multiple offender cases, if 1
offender is assessed points for death or physical
injury, all offenders shall be assessed the same
number of points. [Emphasis added.]
Subsection 1 of both OV 1 and OV 3 required the trial
court to assess the highest number of points that it could
assess
for
approach
each
to
variable.
armed
Following
robbery,
the
trial
the
transactional
court
did
so
by
assessing defendant twenty-five points under OV 1 because
Northington discharged a firearm toward Bish.
also
assessed
because
defendant
Bish’s
threatening.
twenty-five
gunshot
wound
to
points
the
The court
under
chest
was
OV
3
life-
Thus, the trial court properly complied with
subsection 1 of both variables and assessed the highest
number of points possible under each variable.
Notwithstanding the above language of OV 1 and OV 3,
subsection
required
points
2(b)
the
under
Northington.
in
trial
those
OV
1
court
and
to
subsection
assess
variables
as
the
were
2(a)
same
in
OV
number
assessed
3
of
for
The trial court assessed Northington fifteen
8
points under OV 1 and zero points under OV 3.
Thus, the
trial court did not assess Northington the highest number
of points as subsection 1 of OV 1 and OV 3 directs.
The
question then is whether the trial court was obligated to
assess defendant the same number of points as were assessed
for Northington notwithstanding the fact that Northington
was not assessed the highest number of points.
to this question is unclear.
The answer
In these circumstances, the
language of subsection 1 of OV 1 and OV 3 conflicts with
the language of subsection 2(b) in OV 1 and subsection 2(a)
in OV 3.
The trial court could not have followed one
provision without rendering the other nugatory.
Because it is the duty of the judiciary to interpret,
not
to
write,
our
laws,
we,
as
judges,
are
unable
correct the conflicting language of OV 1 and OV 3.
that task is left to the Legislature.
to
this
problem
would
require
to
Rather,
A practical approach
trial
courts
to
assess
offenders in multiple offender cases the same number of
accurately
scored
points.
In
that
event,
trial
courts
would be required to assess multiple offenders the same
number of points only if the first offender’s assessment of
points
was
accurate.
Otherwise,
trial
courts
would
be
required to assess subsequently sentenced offenders “the
highest number of points.”
Because the “highest number of
9
points”
provision
“multiple
of
offender”
OV
1
and
provision
OV
of
3
conflicts
those
with
the
variables,
and
nothing directs which provision prevails, I concur with the
majority that defendant was required to be assessed the
same number of points as were scored for Northington.6
III. OV 9
I also concur with the majority that the trial court
properly assessed defendant ten points under OV 9.
OV 9,
MCL 777.39, provides, in part:
(1) Offense variable 9 is number of victims.
Score offense variable 9 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:
(a)
points
Multiple
deaths
occurred...........100
(b) There were 10 or more victims.......25
points
(c) There were 2 to 9 victims...........10
points
6
In his concurring and dissenting opinion, Justice
Young
opines
that
the
trial
court
properly
scored
defendant’s OV 1 and OV 3 variables in the instant case
because those scores coincided with Northington’s OV 1 and
OV 3 scores for her assault conviction.
Even accepting
Justice YOUNG’s argument as correct, however, a conflict may
still exist between the “highest number of points”
provision and the “multiple offender” provision in some
cases. Although under Justice YOUNG’s theory, defendant was
properly scored in this case, the above provisions would
still conflict in other cases if the first offender to be
sentenced is not assessed the highest number of points.
10
(d) There were fewer than 2 victims......0
points
(2) All of the following apply to scoring
offense variable 9:
(a) Count each person who was placed
danger of injury or loss of life as a victim.
in
Because armed robbery is a transactional offense and Bish
was placed in danger of injury or loss of life while the
robbery was ongoing, the trial court properly considered
him a victim of the armed robbery under subsection 2(a).7
Accordingly,
the
trial
court’s
assessment
of
ten
points
under this variable was correct.
IV. CONCLUSION
The “multiple offender” provision of OV 1 and OV 3
conflicts with the “highest number of points” provision of
those variables.
Accordingly, it is unclear whether the
trial court assessed the proper number of points under each
variable.
Nevertheless, I concur with the majority for the
sake of reaching a clear rule and offering guidance to
sentencing
courts
in
implementing
7
the
legislative
As discussed in note 3, supra, because Northington
shot Bish in an attempt to retain possession of Sevakis’
purse and before she reached a place of temporary safety,
the shooting was a continuation of the robbery under the
transactional approach to that offense.
Thus, the trial
court properly considered the shooting in scoring OV 9.
11
sentencing guidelines.
I urge the Legislature to amend
those sentencing variables containing the above conflicting
provisions.
Further,
I
concur
conclusion regarding OV 9.
with
the
majority’s
Because armed robbery is a
transactional offense, the trial court properly assessed
defendant ten points under OV 9.
Maura D. Corrigan
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. 124083
LATASHA GENISE MORSON,
Defendant-Appellee.
_______________________________
MARKMAN, J. (concurring in part and dissenting in part).
I concur in the conclusion of the majority opinion
that
the
trial
court
improperly
scored
OV
1
and
OV
3,
although I reach this conclusion by a different analysis.
I respectfully dissent from the conclusion of the majority
opinion that the trial court properly scored OV 9.
Defendant
and
Iesha
woman, Deborah Sevakis.
Northington
robbed
an
elderly
Northington stole Sevakis’s purse.
James Bish, a bystander who witnessed the robbery, chased
after Northington and Northington shot Bish.
the getaway driver.
Defendant was
Northington pleaded guilty to armed
robbery and assault with intent to murder, and defendant
was convicted of armed robbery, but never charged with the
assault.
OV 1 is to be scored at fifteen points for pointing a
firearm at a person and twenty-five points for discharging
a firearm at a person.
MCL 777.31(1)(a) and (c).
defendant’s
accomplice,
Iesha
twenty-five
points
the
assessed
only
conviction.
for
fifteen
Northington,
assault
points
for
Although
was
assessed
conviction,
the
armed
she
was
robbery
Defendant was assessed twenty-five points for
the armed robbery conviction.
with an assault.
Defendant was never charged
The Court of Appeals concluded that the
trial court erred in assessing defendant twenty-five points
for the armed robbery conviction because MCL 777.31(2)(b)
provides that “[i]n multiple offender cases, if 1 offender
is assessed points for the presence or use of a weapon, all
offenders shall be assessed the same number of points.”
The majority opinion agrees.
OV 3 is to be scored at twenty-five points if a victim
suffered
a
life-threatening
injury.
MCL
777.33(1)(c).
Clearly, James Bish suffered a life-threatening injury when
he
was
shot
in
the
chest
and
his
lung
was
punctured.
Although Northington was assessed twenty-five points for
the assault conviction, she was assessed zero points for
the
armed
twenty-five
robbery
points
conviction.
for
the
Defendant
armed
robbery
was
assessed
conviction.
Again, the Court of Appeals concluded that this was an
2
error because MCL 777.33(2)(a) provides that “[i]n multiple
offender cases, if 1 offender is assessed points for death
or physical injury, all offenders shall be assessed the
same number of points.”
The majority opinion again agrees.
MCL 769.31(d) provides:
“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
purpose of this subdivision, an offense described
in section 33b of 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.
[Emphasis
added.]
Therefore, in general, when scoring offense variables, the
trial court can only consider the offense for which the
sentencing guidelines are being scored and those enumerated
offenses that arose out of the same transaction as that
offense and that resulted in convictions.1
In this case, the discharging of the firearm and the
resulting injury to Bish are not factors that relate to the
robbery
offense—the
offense
for
which
the
sentencing
guidelines are being scored—but are, instead, factors that
1
Although the majority opinion believes that it is
“unnecessary to draw . . . sharp lines . . . between
‘offenses’ stemming from [the same] event,” ante at 12 n
10, the Legislature, as evidenced by the express language
of MCL 769.31(d), believes otherwise.
3
relate to the assault offense—an offense of which defendant
was never convicted.
Therefore, the trial court erred when
it considered these factors in scoring defendant’s robbery
conviction.
MCL 777.31(1) and MCL 777.33(1) provide that OV 1 and
OV
3
are
following
to
be
apply
scored
and
by
“by
determining
assigning
the
which
number
of
of
the
points
attributable to the one that has the highest number of
points.”
With
regard
to
OV
1,
defendant
argues
that
fifteen points was the highest score attributable to either
offender for the robbery because a weapon was pointed, but
not discharged during the robbery.
Northington did not
discharge the weapon until after the robbery.
Similarly,
with regard to OV 3, defendant argues that zero points was
the highest score attributable to either offender for the
robbery
because
nobody
was
injured
during
the
robbery.
Northington did not shoot Bish until after the robbery.
MCL
769.31(d)
explicitly
states
that
“an
offense
described in section 33b of 1953 PA 232, MCL 791.233b, that
resulted in a conviction and that arose out of the same
transaction
guidelines
as
are
the
offense
for
being
scored
shall
aggravating factor.”
general
rule—the
which
be
the
sentencing
considered
as
an
This is clearly an exception to the
general
rule
4
being
that
the
relevant
factors are those that relate to the offense being scored,
and the exception being that, if the defendant is convicted
of certain enumerated offenses that arose out of the same
transaction as the offense being scored, these offenses can
be taken into consideration in scoring.
Although assault
with intent to murder is one of the enumerated offenses and
the assault arguably arose out of the same transaction as
the armed robbery, defendant was not convicted of assault
with
intent
Northington
to
shot
murder.
Bish
Therefore,
cannot
be
defendant’s robbery conviction.
the
considered
fact
in
that
scoring
The trial court took this
shooting into consideration when it scored OV 1 and OV 3,
and, thus, improperly scored OV 1 and OV 3.
That the general rule is that the relevant factors are
those that relate to the offense being scored is further
supported
by
specifically
the
fact
provide
that
some
otherwise.
offense
For
variables
instance,
MCL
777.44(2)(a) provides that in scoring OV 14 (whether the
offender was a leader in a multiple offender situation),
“[t]he entire criminal transaction should be considered.”
In other offense variables, the Legislature unambiguously
made it known when behavior outside of the scored offense
is to be taken into account.
to
acts
that
occurred
OV 12, for example, applies
within
5
twenty-four
hours
of
the
sentencing
offense
convictions.
and
have
not
MCL 777.42(2)(a).
resulted
in
separate
OV 13 explicitly permits
scoring for “all crimes within a 5-year period, including
the sentencing offense” regardless of whether they resulted
in conviction.
MCL 777.43(2)(a).
OV 16 provides that
“[i]n 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 (scoring for
victim asportation or captivity) specifically focuses on
conduct “beyond the time necessary to commit the offense.”
MCL 777.38.
some
That the Legislature has explicitly stated in
offense
offense
being
variables
scored
that
can
conduct
be
not
considered
related
to
the
strengthens
the
conclusion that, unless stated otherwise, only conduct that
relates to the offense being scored may be considered.
OV 9 is to be scored at ten points if two to nine
victims were involved.
MCL 777.39(1)(c).
“[E]ach person
who was placed in danger of injury or loss of life” is to
be counted as a victim.
MCL 777.39(2)(a).
OV 9 does not
require multiple offenders to receive the same score.
Both
defendant and Northington were assessed ten points.
The
Court of Appeals concluded that this was error because only
6
Deborah Sevakis was placed in danger during the robbery.
agree.
The
intervened.
robbery
was
by
the
time
Bish
Bish was not the victim of the robbery; he was
the victim of the assault.2
the assault.3
complete
I
Defendant was not charged with
For the same reason that the assault cannot
2
The majority opinion accuses me of “fail[ing] to
apply the plain language of the statute.” Ante at 16 n 14.
However, with all due respect, I believe it is the majority
opinion that fails to apply the clear language of the
statute.
MCL 769.31(d) specifically states that “the
offense” and any enumerated offenses “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 . . . .”
In this case, “the
offense for which the sentencing guidelines are being
scored” is armed robbery.
Defendant was not convicted of
assault, or any other offense. Under the express language
of the statute, only the robbery, not the assault, can be
considered.
3
MCL
769.31(d)
states
that
“‘[o]ffense
characteristics’ means the elements of the crime and the
aggravating and mitigating factors relating to the offense
that
the
legislature
determines
are
appropriate.”
Therefore, I agree with Justice Young that the trial court
can “consider not only the actual elements constituting the
offense, but also any aggravating or mitigating factors
associated with the offense . . . .”
Post at 2 (emphasis
in original). However, in this case, the disputed factors
relate not to the offense—armed robbery—but to another
offense—assault—that occurred after the offense [of armed
robbery] was already completed and that defendant was never
even charged with, let alone convicted of.
As explained
above, MCL 769.31(d) specifically states that only offenses
that have resulted in convictions can be considered.
Because defendant was not convicted of an assault, the
assault cannot be considered in scoring the armed robbery
offense.
To allow the assault to be considered, even
though it was not even charged, would be to circumvent the
guidelines by scoring a defendant on the basis of
(continued…)
7
be considered when scoring OV 1 and OV 3, it cannot be
considered when scoring OV 9.4
(…continued)
circumstances constituting an offense that was never even
charged.
However, I do agree with Justice Young that the
assault may be considered by the court in imposing an
upward departure as long as the standards articulated in
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003), have
been adhered to.
4
Chief Justice Corrigan concludes that “[b]ecause
armed robbery is a transactional offense, and Northington
shot Bish immediately after she stole Sevakis’ purse and
before she reached a place of temporary safety, the trial
court properly considered the shooting when determining
defendant’s score under OV 1[,] OV 3” and OV 9. Post at 5,
10.
Assuming
arguendo
that
armed
robbery
is
a
transactional offense, I still cannot agree that the trial
court properly scored OV 1, OV 3, and OV 9.
Under a
transactional view, a person can be found guilty of armed
robbery if, before reaching a place of temporary safety,
all of the elements of armed robbery are completed.
However, that does not mean that an armed robbery can never
be completed until a person has reached a place of
temporary safety. In other words, although it is possible
that an armed robbery will not be completed until defendant
has reached a place of temporary safety, it is also
possible that the crime will be completed before then.
Here, all the elements of the armed robbery were completed
before defendant reached a place of temporary safety.
There cannot be two endings to a crime. In other words, it
cannot be that the crime of armed robbery was completed
once defendant stole the purse and it was also completed
once she reached a place of temporary safety.
The crime
had to have been completed at either the latter or the
former time.
If all the elements had not been completed,
we could look, under a transactional view, to defendant’s
conduct until she reached a place of temporary safety to
establish all of the elements of the armed robbery. Here,
however, that is not necessary because all the elements
were, in fact, completed before she reached a place of
temporary safety.
Because the assault occurred after the
armed robbery and because defendant was never convicted of
(continued…)
8
OV 1 should only have been scored at fifteen points
because
Northington
robbery;
she
robbery.
OV
did
3
only
not
should
pointed
a
firearm
during
the
discharge
a
firearm
during
the
have
scored
been
at
zero
points
because the robbery victim did not suffer from a lifethreatening injury; only the assault victim suffered from a
life-threatening injury.
Finally, OV 9 should have been
scored at zero points because there was only one robbery
victim;
Bish
was
an
assault
victim,
but
not
a
robbery
victim.
Therefore, I would affirm the judgment of the
Court
Appeals,
of
which
concluded
that
the
trial
court
erred in scoring OV 1, OV 3, and OV 9, albeit on different
grounds.
Stephen J. Markman
Clifford W. Taylor
(…continued)
the assault, it cannot be considered when scoring OV 1, OV
3, and OV 9.
Contrary to the majority opinion’s contention, I do
not determine here whether armed robbery is a transactional
offense.
I simply note that, even if armed robbery is a
transactional offense, the trial court erred in scoring OV
1, OV 3, and OV 9.
9
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. 124083
LATASHA GENISE MORSON,
Defendant-Appellee.
_______________________________
YOUNG, J. (concurring in part and dissenting in part)
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.
James
Bish
was
placed
Because a gun was fired at him,
in
danger
even
if
he
had
not
intervened or been injured.
However, I dissent from that portion of the majority
opinion holding that the trial court erred in assessing
twenty-five points each for
OV
1 and
OV
3. Because I believe
that the guidelines were scored correctly, I would affirm
the trial court’s scoring of those guidelines.
I
disagree
with
the
majority's
conclusion
that
defendant was entitled to have her armed robbery scores
match
Northington's
majority's
position
armed
is
robbery
based
scores.
on
a
I
flawed
regarding the "multiple offender" provision of
believe
the
assumption
OV
1 and
OV
3.
When scoring the guidelines, the court is instructed
by MCL 769.31(e)1 to consider not only the actual elements
constituting
mitigating
the
offense,
factors
but
associated
also
with
any
aggravating
the
offense
or
as
designated in the guidelines:
"Offense characteristics" means the elements
of the crime and the aggravating and mitigating
factors
relating
to
the
offense
that
the
commission
determines
are
appropriate
and
consistent with the criteria described in section
33(1)(e) of this chapter. For the purposes of
this subdivision, an offense described in section
33b of 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.
[Emphasis
[2]
added.]
1
Redesignated as subsection d in a 2002 amendment.
2002 PA 31.
The amendment also designated responsibility
to the "legislature" instead of the "commission."
2
The second sentence of MCL 769.31(e), which is not at
issue in this case, mandates the trial court to consider
certain convictions as aggravating factors when they result
in a conviction and they arose out of the “same
transaction” as the offense being scored.
In instructing
the sentencing court to view the entire "transaction," I do
(continued…)
2
Therefore, an “offense characteristic” clearly encompasses
more than merely the offense itself–it contemplates both
positive
and
negative
factors
“related
to,”
but
not
account
the
constituting, the charged offense.
When
aggravated
scoring
use
of
OV
a
1,
which
weapon,
takes
MCL
into
777.31(2)
specifically
requires a trial court to:
(a) Count each person who was placed
danger of injury or loss of life as a victim.
in
(b) In multiple offender cases, if 1
offender is assessed points for the presence or
use of a weapon, all offenders shall be assessed
the same number of points.
Likewise, when scoring
OV
3, which assesses physical
injury to a victim, MCL 777.33(2)(a) requires that:
(…continued)
not believe that this phrase describes the transactional
approach to robbery as recognized by this Court in People v
Randolph, 466 Mich 532; 648 NW2d 164 (2002). Rather, I
believe that the plain meaning of the phrase "same
transaction" refers to the entire criminal episode or
event, not the term "transactional test," which is unique
to robbery cases and has never received legislative
recognition. In fact, when the Legislature recently amended
the unarmed robbery statute in response to this Court’s
opinion in Randolph, the Legislature did not use the terms
“transaction” or “transactional” in its amendment. See MCL
750.530 as amended by 2004 PA 128. In any event, the
“transactional” analysis offered by Justices CORRIGAN AND
MARKMAN is irrelevant to the first sentence that applies in
this case.
3
In multiple offender cases, if 1 offender is
assessed points for death or physical injury, all
offenders shall be assessed the same number of
points.
The
majority
assumption
that
opinion
the
rests
upon
requirement
of
the
equal
analytical
scores
for
"multiple offenders" means that identical crimes must be
compared
to
identical
crimes.
However,
as
illustrated
above, the plain language of the MCL 777.31(2)(b) and MCL
777.33(2)(a)
offenses
clearly
must
do
be
not
require
identical.
that
contemplate the comparison of identical
convicted
the
Rather,
the
statutes
offense variable
scores. I believe that the correct reading of the statutes
requires
that,
to
the
degree
that
both
defendants
convicted of crimes requiring the scoring of
the second defendant would get the same
OV
OV
1 and
1 and
OV
are
OV
3,
3 scores
as the first defendant.
Here, defendant was scored twenty-five points for her
armed robbery
evidence
James
OV
because
Bish,
and
aggravating
Defendant's
1 score. This score is supported by the
a
the
factor
OV
Northington's
firearm
was
discharge
related
discharged
of
to
the
the
at
or
firearm
armed
toward
was
an
robbery.
1 score for use of a weapon coincides with
OV
1 score for use of a weapon, as shown in
the table below.
4
Additionally, defendant was scored twenty-five points
for her
OV
3 score. This score is supported by the evidence
because of the life-threatening gunshot injury suffered by
James Bish, which was an aggravating factor related to the
armed robbery. Defendant’s
for
physical
Northington’s
injury
OV
OV
to
3 score of twenty-five points
a
victim
is
identical
to
3 score for physical injury to a victim, as
shown in the table below:
DEFENDANT &
OFFENSE
1
Aggravated use of
weapon
3
Physical injury
to victim
Northington
25 points
25 points
15 points
0 points
25 points
25 points
OV
Assault with intent
to murder
Northington
OV
Armed robbery
Morson
Armed robbery
The
majority
errs
in
convictions.
However,
as
contained
in
OV
1
OV
criminal
convictions—they
and
simply
noted
3
do
merely
comparing
above,
not
the
identical
directives
require
equality
of
necessitate
that
the
offense variables be scored identically. Because defendant
received the same
OV
1 and
OV
3 scores as her cohort, I do
5
not believe that defendant is entitled to resentencing.3
As
Chief
opinion,
Justice
there
is
Corrigan
an
notes
arguable
in
her
tension
concurring
between
the
sentencing instructions requiring assessment of the highest
number of points shown by the evidence and the instruction
included in some offense variables directing the court to
assess
equal
OV
points
in
multiple
offender
situations.
However, I believe that enforcing the statute as written,
which
instructs
a
sentencing
court
to
compare
offense
3
Contrary
to
the
majority's
conclusion,
the
analysis I advocate is not inconsistent with MCL 777.21(2).
The trial court is still required to score each convicted
offense, but is permitted, under the clear language of the
statute, to consider aggravating factors “related to” the
convicted charge. In addition, the Legislature specifically
contemplated
different
defendants
being
convicted
of
different offenses, as evidenced by the instruction that
offense variables be scored the same for "multiple
offenders," rather than limiting its instruction to
offenders convicted of identical offenses.
While my approach is considered “illogical” by the
majority, I believe that it best adheres to the plain
language of the statute. When the language is clear, it is
my responsibility to simply apply the facts to the law. The
genesis of the error in this case is the trial court's
decision to disregard the law when it sentenced Iesha
Northington. The trial court failed to consider the facts
of both convictions under the second sentence of MCL
769.31(e) when sentencing Northington, and failed to assess
the highest number of points for OV 1 and OV 3 that the
evidence supported. See MCL 777.31(1) (OV 1); MCL 777.33(1)
(OV 3). When the trial court failed to follow the law, it
injected an error that defendant now seeks to perpetuate.
6
variable to like offense variable, promotes both accuracy
and equality in the scoring of the guidelines.4
For the reasons stated herein, I dissent from that
portion
of
the
majority
opinion
holding
that
the
trial
court erred in scoring offense variables 1 and 3. Because I
believe that the guidelines were scored correctly, I would
reverse the Court of Appeals judgment and reinstate the
sentence imposed by the circuit court.
Robert P. Young, Jr.
4
While my interpretation and application of the
statute does not prevail in this case, I note that, if
factors arising before or after the offense cannot be
calculated in the guidelines, they are certainly relevant
sentencing factors not adequately contemplated by the
guidelines.
If
these
factors
are
substantial
and
compelling, a sentencing court may utilize those factors in
imposing an upwardly departing sentence. People v Babcock,
469 Mich 247; 666 NW2d 231 (2003).
7
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