PEOPLE OF MI V BRIAN CHRISTOPHER MANN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
February 2, 2010
9:10 a.m.
Plaintiff-Appellant,
V
No. 288314
Barry Circuit Court
LC No. 07-100137-FC
BRIAN CHRISTOPHER MANN,
Defendant-Appellee.
Advance Sheets Version
Before: BECKERING, P.J., and MARKEY and BORRELLO, JJ.
MARKEY, J.
The prosecution appeals by leave granted the trial court’s decision to rescore a sentencing
variable and adjust downward defendant’s sentence for a conviction of armed robbery, MCL
750.529. We vacate and remand for reinstatement of the original sentences. This appeal has
been decided without oral argument pursuant to MCR 7.214(E).
Defendant pleaded guilty to charges of armed robbery and unlawful imprisonment, MCL
750.349b. At the plea proceeding, defendant admitted that while armed with a knife he entered a
store in Nashville and demanded money from an employee. Defendant further admitted that
upon obtaining the money, he left the store, stopped a woman driving a car, and forced her to
drive him to Battle Creek. In exchange for the plea, the prosecutor agreed to drop charges of
carjacking, MCL 750.529a, and kidnapping, MCL 750.349, and to waive habitual offender
enhancement of defendant’s sentences. Additionally, the trial court agreed to impose minimum
sentences at the low end of the guidelines range.
The trial court initially sentenced defendant to serve concurrent terms of imprisonment of
171 months to 40 years for the robbery conviction and 10 to 15 years for the unlawful
imprisonment conviction. The trial court denied a motion for resentencing. In response to
defendant’s delayed application for leave to appeal, this Court in lieu of granting the delayed
application, entered an order vacating the judgment of sentence and remanding this case to the
trial court with instructions to recalculate Offense Variable (OV) 9 in light of People v Melton,
271 Mich App 590, 596; 722 NW2d 698 (2006), and MCL 777.39. Unpublished order, entered
May 21, 2008 (Docket No. 284628). On remand, the trial court changed the score of OV 9 from
10 to zero points, and resentenced defendant to 135 months to 40 years for the robbery
conviction and 10 to 15 years for the unlawful imprisonment conviction. The prosecutor now
appeals by leave granted.
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Offense Variable 9 addresses the number of victims. The trial court originally assessed
10 points for that variable, which is the total prescribed where “[t]here were 2 to 9 victims who
were placed in danger of physical injury or death . . . .” MCL 777.39(1)(c).
In the conflict resolution case of Melton, this Court held that OV 9 was to be scored
solely according to the number of victims placed only in physical danger. Under Melton, no
points are to be scored under OV 9 for victims placed in danger of financial injury. Melton, 271
Mich App at 592 (DAVIS, P.J.), 597 (NEFF, J., concurring). Melton was decided on July 20,
2006. In apparent response to that decision, the Legislature amended MCL 777.39, effective
March 30, 2007 (approximately one month before the crimes here at issue), to add persons
placed in danger of property loss to those placed in danger of physical injury or death as victims
for purpose of scoring OV 9. 2006 PA 548.
In this case, however, the prosecutor seeks to return defendant’s score for OV 9 from
zero to 10 points solely on the basis that two victims were threatened with injury or death.
Because the prosecutor has never relied on financial or other property-related criteria in
maintaining that a score of 10 points is proper, neither Melton nor the legislative response to it
presents a reason for adjusting the original scoring of OV 9. Consequently, neither Melton nor
the legislative response to it now bar the reinstatement of that original score.
Other caselaw does come to bear, however. In People v McGraw, 484 Mich 120; 771
NW2d 655 (2009), our Supreme Court held that for purposes of scoring OV 9, “a defendant's
conduct after an offense is completed does not relate back to the sentencing offense for purposes
of scoring offense variables unless a variable specifically instructs otherwise.” Id. at 122.
Defendant protests that his armed robbery was completed with there being only one
victim for purposes of OV 9 before he began the separate crime stemming from his
commandeering a car and driver for his getaway. The applicable statutes, however, prevail over
this empirical reasoning. MCL 750.530(1) sets forth robbery in general terms as a felony
punishable by imprisonment for not more than 15 years. MCL 750.530(2) in turn adds that for
purposes of that statute, the course of committing a larceny includes “flight or attempted flight
after the commission of the larceny . . . .” MCL 750.529 incorporates MCL 750.530 by
reference and enhances the penalty if the robbery is accomplished with the use of a dangerous
weapon. Accordingly, the course of an armed robbery includes the robber’s conduct in fleeing
the scene of the crime. Thus, in the instant case, defendant’s commandeering of a car
immediately after taking money from the first victim and forcing the driver of the car to drive
him to another community, created a second victim of the armed robbery. In other words, the
carjacking incident constituted not only the commission of separate offenses, but was also a
continuation of the armed robbery.
At the beginning of the resentencing proceeding, the trial court stated, “As I understand
it, the Court of Appeals has indicated that OV 9 should have been scored zero. Is that correct?”
Defense counsel agreed, but the prosecuting attorney protested, arguing that the variable was to
be recalculated, not necessarily adjusted to zero. The trial court heard arguments, announced its
decision to rescore OV 9 at zero, and invited the prosecuting attorney to appeal.
Defendant argues that the trial court correctly interpreted this Court’s remand order in
this regard and that the result demands respect now as the law of the case. We disagree.
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We conclude that the trial court inaccurately inferred from this Court’s remand order that
this Court demanded that it score zero for OV 9. This Court instead expected only that the
question would be considered anew, applying Melton, to the extent that it was relevant. Upon
further review, we now conclude that the trial court correctly scored OV 9 at 10 points in the first
instance.
Because the original sentences of 171 months to 40 years for the armed robbery
conviction and 10 to 15 years for the unlawful imprisonment conviction were within the
appropriate guidelines sentence range of properly scored guidelines, resentencing is neither
required nor permitted. MCL 769.34(10). Instead, we vacate the sentences imposed after this
Court’s initial remand and again remand with instructions to reinstate the original sentences.1
We vacate defendant’s new sentences and remand for reinstatement of his original
sentences. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Jane M. Beckering
/s/ Stephen L. Borrello
1
The trial court should take this opportunity to correct an irregularity that the parties have not
discussed. Although at resentencing the trial court stated from the bench its intention to retain
the 10- to 15-year sentence for the unlawful imprisonment conviction, which was not at issue,
the judgment of sentence that followed listed for that conviction the same 135 months to 40 years
sentence listed for the armed robbery conviction. Because there was no legal reason or
justification for increasing both the minimum and maximum sentences for that conviction, we
regard this irregularity as simple inadvertence but ask the trial court to correct it on remand.
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