Michigan v. Calloway (Opinion on Application)Annotate this Case
Points may be assessed for OV 5 even absent proof that a victim’s family member has sought or received, or intends to seek or receive, professional treatment. Tiwaun Calloway was convicted by jury of second-degree murder on an aiding-and-abetting theory for his role in a man’s death. The trial court sentenced Calloway to 20 to 50 years of imprisonment. At sentencing, the court scored Offense Variable 5 (OV 5) at 15 points for the serious psychological injury suffered by two of the victim’s family members as a result of the victim’s death. Calloway sought delayed leave to appeal. While his leave application was pending, Calloway moved in the trial court for reissuance of the judgment of sentence under MCR 6.428. The trial court granted the motion, and Calloway filed a claim of appeal from the reissued judgment. The Court of Appeals granted Calloway’s delayed application for leave. The appeals were consolidated. The Court of Appeals affirmed Calloway’s conviction, but the Court vacated Calloway’s sentence after it determined that OV 5 should have been scored at zero points. Both Calloway and the prosecution appealed: Calloway, to appeal his conviction, and the State, to appeal the Court of Appeals’ decision regarding OV 5. The Michigan Supreme Court found adequate proof of that the victim's family member suffered serious psychological harm requiring professional treatment, the Court determined the appellate court erred in reversing the trial court's 15 point-assessment for OV 5.