PEOPLE OF MI V TOMMY LEE BROWN JRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
January 27, 2005
Genesee Circuit Court
LC No. 02-009938-FH
TOMMY LEE BROWN, JR.,
Official Reported Version
Before: Jansen, P.J., and Murray and Donofrio, JJ.
Defendant appeals as on leave granted his sentence for his plea-based conviction of
driving with a suspended license (DWLS) causing death, MCL 257.904(4).1 The issue before us
today is whether the trial court erred in assessing one hundred points under offense variable
(OV) 3, and, if so, what the proper score is for OV 3 in this case. We find that the trial court
erred in scoring one hundred points under OV 3, and remand this case for resentencing.
I. Material Facts and Proceedings
Defendant was initially charged with DWLS causing death and with failure to stop at the
scene of a personal injury accident, MCL 257.617, in connection with an incident that occurred
on May 19, 2001. On July 12, 2002, defendant pleaded guilty to the DWLS charge, and, in
exchange, the failure-to-stop charge was dismissed. In connection with the plea, defendant
admitted that he was driving with a suspended license while exceeding the speed limit.
According to defendant, a ball came into his path, and he paid "very little attention to the ball.
And I was gonna just hit the ball and keep going." However, the victim, a young boy, was
chasing the ball, and defendant, unable to stop in time, struck the boy, causing fatal injuries.
A panel of this Court initially denied defendant's application for leave to appeal in an
unpublished order of the Court of Appeals, entered February 6, 2003 (Docket No. 245529). In
lieu of granting leave to appeal, the Michigan Supreme Court remanded this case to this Court
for consideration as on leave granted. 469 Mich 860 (2003).
At sentencing, the prior record variables were scored at seven points and the offense
variables were scored at 110 points. The trial court determined that defendant's sentencing score
fell in the B-VI category for the Class C offense of DWLS causing death. Defendant did not
challenge the scoring of the guidelines at sentencing, and the trial court imposed a minimum
sentence of forty-eight months' imprisonment.
II. Preservation and Standard of Review
The interpretation of a statute involves a question of law, which this Court reviews de
novo. People v Kimble, 470 Mich 305, 308-309; 684 NW2d 669 (2004). However, because this
issue was raised for the first time on appeal, defendant must satisfy the plain error standard set
forth in People v Carines, 460 Mich 750; 597 NW2d 130 (1999). Kimble, supra at 312. Thus,
defendant must demonstrate that
"1) error . . . occurred, 2) the error was plain, i.e., clear or obvious, and 3) 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. [Carines, supra at 763.]" [Kimble, supra at 312.]
"In addition, defendant must show that the 'error resulted in the conviction of an actually
innocent defendant' or that the 'error "seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings . . . ."'" Id. (citation deleted), quoting Carines, supra.
III. OV 3
At sentencing, the trial court scored OV 3, physical injury to a victim, at one hundred
points. MCL 777.33. Both defendant and the prosecution agree before this Court that OV 3 was
erroneously scored at one hundred points.2 The discrepancy between the parties rests instead on
whether OV 3 should have been scored at twenty-five points, as argued by the prosecution, or
whether it should have been scored at zero points, as urged by defendant. The answer, of course,
lies within the text of MCL 777.33.
"When construing a statute, this Court's primary goal is to give effect to the intent of the
Legislature." People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). We must begin by
construing the language of the statute itself. Id. Where the language is unambiguous, we must
give the words their plain meaning and apply the statute as written. People v Morey, 461 Mich
325, 330; 603 NW2d 250 (1999). "If reasonable minds can differ concerning the meaning of a
statute, the statute is ambiguous and judicial construction is appropriate." People v Cardenas,
A score of one hundred points under OV 3 is appropriate when "[a] victim was killed," and "if
death results from the commission of a crime and homicide is not the sentencing offense." MCL
777.33(1)(a) and (2)(b). As used in Chapter XVII of the Code of Criminal Procedure, which is
the chapter relevant to the offense variables, "homicide" is defined as "any crime in which the
death of a human being is an element of that crime." MCL 777.1(c). As the death of a human
being is an element of DWLS causing death, MCL 257.904(4), the sentencing offense was a
homicide as defined by the statute and OV 3 was erroneously scored at one hundred points.
263 Mich App 511, 517; 688 NW2d 544 (2004), citing People v Warren, 462 Mich 415, 427;
615 NW2d 691 (2000). "If a statute is ambiguous, '[t]he court must access [sic, assess] the
object of the statute and the harm it was designed to remedy and apply a reasonable construction
that best accomplishes the purpose of the statute.'" Cardenas, supra, citing People v Lawrence,
246 Mich App 260, 265; 632 NW2d 156 (2001).
MCL 777.33(1) instructs that "[o]ffense 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 . . . ."3 A score of twenty-five
points is proper if a "[l]ife threatening or permanent[ly] incapacitating injury occurred to a
victim." MCL 777.33(1)(c). A score of zero points is proper when "[n]o physical injury
occurred to a victim." MCL 777.33(1)(f).
Although several unpublished opinions have been released by this Court addressing this
same issue, there has not been, to date, a definitive answer regarding the issue. While some
panels of this Court have determined that a score of twenty-five points is appropriate,4 several
other panels of this Court have found that the proper score is zero points.5
We hold that in cases in which one hundred points cannot be awarded because the
sentencing offense is a homicide as defined by the statute, the appropriate sentencing score for
OV 3 is zero points. We find persuasive this Court's analysis in People v Hauser, unpublished
opinion per curiam of the Court of Appeals, issued October 29, 2002, slip op p 2 (Docket No.
MCL 777.33 was first amended by 2000 PA 279, effective July 10, 2000, which provided a
score of thirty-five points in instances in which death results from the commission of a crime and
the elements of the crime or attempted offense involve the operation of a vehicle, vessel, etc.,
under the influence or while impaired, thereby causing death. MCL 777.33 was later amended
by 2003 PA 134, effective August 1, 2003, relative to a death in this circumstance, increasing the
points from thirty-five to fifty. Here, although death resulted from the commission of the crime
and the offense involved the operation of a vehicle, defendant was not charged with, and there is
no evidence to indicate that he was, operating the vehicle under the influence or while impaired.
Thus, a score of thirty-five points is not proper in accordance with the statute.
See People v Smith, unpublished opinion per curiam of the Court of Appeals, issued May 20,
2003 (Docket No, 234830); People v Williams, unpublished opinion per curiam of the Court of
Appeals, issued August 11, 2002 (Docket No. 224727). See also People v Hauser, 468 Mich
861, 861-862 (2003) (Markman, J., dissenting from an order denying leave to appeal).
See People v Stanko, unpublished opinion per curiam of the Court of Appeals, issued January
27, 2004 (Docket No. 242876); People v Edelen, unpublished opinion per curiam of the Court of
Appeals, issued December 23, 2003 (Docket No. 242167); People v Martin, unpublished opinion
per curiam of the Court of Appeals, issued December 13, 2002 (Docket No. 231696); People v
Hauser, unpublished opinion per curiam of the Court of Appeals, issued October 29, 2002
(Docket No. 239688).
The statute in effect offered the following scoring options for OV 3: (a)
100 points if a victim was killed, (b) 25 points if a victim sustained a lifethreatening or permanent incapacitating injury, (c) 10 points if a victim sustained
bodily injury requiring medical treatment, (d) 5 points if a victim sustained bodily
injury not requiring medical treatment, or (e) 0 points if a victim was not injured.
MCL 777.33(1). The statute reflects a graduated scale for assessing the harm to
the victim. Given that death is assessed the highest number of points and no
injury at all is assessed no points, the plain and most reasonable meaning of the
intervening sections is that they are meant to apply where there is some harm
short of death. Otherwise, a death for which points cannot be assessed under
subsection 33(2)(b) could be assessed points under subsections 33(1)(b), (c), or
(d) if the victim dies after sustaining some injury. If that were the intent of the
Legislature, it would not have limited the assessment of points for a victim's death
to those crimes in which death of a person is not an element, but would have
eliminated subsection 33(2)(b) altogether.
This interpretation is supported by the October 2000 amendment of the
statute. The amendment provides for additional points for causing death while
operating under the influence, which offense would otherwise not be assessed any
points. Because the victim did not survive the offense with serious injuries but
died, the trial court erred in scoring OV 3.
Such an interpretation clearly represents the intent of the Legislature. Again, because
death to a victim is assessed the highest number of points, whereas no physical injury to the
victim is assessed zero points, the plain meaning of the intervening sections is that they apply to
instances in which there is injury or some harm short of death and not to those instances in which
there is some survival just before death. Further, it remains evident from the October 2000
amendment that the Legislature was aware that there was a class of offenses involving death for
which one hundred points cannot be scored. Although the Legislature provided that thirty-five
points are to be scored when a victim is killed in situations involving the operation of a vehicle
by a driver under the influence or while impaired, there remain certain other offenses, such as
second-degree murder, manslaughter, negligent homicide, and DWLS causing death, where
neither option applies. Thus, in accordance with the language utilized by the Legislature, the
proper score for OV 3 in cases where a victim is killed, but the sentencing offense is homicide
not falling under MCL 777.33(2)(c), is zero points.
Given the prosecution's concession that the trial court erroneously scored OV 3 at one
hundred points, defendant has demonstrated that a plain error occurred. As defendant's OV
sentencing score is significantly reduced when OV 3 is properly scored at zero points,6 defendant
has further demonstrated that the plain error has affected his substantial rights. As stated in
Kimble, "It is difficult to imagine what could affect the fairness, integrity and public reputation
With the reduction of the OV score, the OV level is reduced from VI to II. MCL 777.64.
Under the OV II level, the proper range for the minimum sentence is five to seventeen months,
which the forty-eight month minimum sentence exceeds.
of judicial proceedings more than sending an individual to prison and depriving him of his
liberty for a period longer than [that] authorized by law." Kimble, supra at 313. Further, the trial
court did not state on the record a substantial and compelling reason for departing from the
guidelines. Accordingly, because the trial court erred in scoring the guidelines and,
consequently, did not impose a sentence within the applicable guidelines range, we remand this
case for resentencing in accordance with the principles set forth in this opinion.
Remanded for resentencing. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ Christopher M. Murray
/s/ Pat M. Donofrio