PEOPLE OF MI V HAROLD E EDWARDS III
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 20, 2002
Plaintiff-Appellee,
v
No. 233750
Wayne Circuit Court
LC No. 00-009945-02
HAROLD E. EDWARDS, III,
Defendant-Appellant.
Before: O’Connell, P.J., and White and B.B. MacKenzie*, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of larceny from a person, MCL
750.357, and escape from lawful custody, MCL 750.197a. The trial court sentenced defendant to
five to ten years’ imprisonment for the larceny from a person conviction, concurrent to one year
for the escape from custody conviction. We affirm.
I
Defendant argues that the trial court erred in refusing to instruct the jury on receiving and
concealing stolen property (RCSP) and unlawfully driving away an automobile (UDAA).1
Defendant asserts that RCSP and UDAA are cognate lesser offenses of carjacking, and that the
court must instruct on cognate lesser offenses when the evidence would support a verdict of guilt
of the lesser cognate offense. However, in People v Cornell, 466 Mich 335, 357, 359; 646
NW2d 127 (2002), decided during the pendency of this case, the Court concluded that MCL
768.32(1) only provides for instructions on necessarily included lesser offenses, not cognate
lesser offenses. Thus, under Cornell, supra, defendant’s claim must fail because Cornell
abolished the requirement that instructions be given on cognate offenses.
1
Defendant was charged with carjacking, MCL 750.529a, and escape from lawful custody, MCL
750.197a.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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II
Defendant next argues that he is entitled to resentencing because the trial court exceeded
the sentencing guidelines for reasons that were not substantial and compelling, and were already
taken into account in calculating the guidelines.
Because the offenses with which defendant was charged occurred after January 1, 1999,
the legislative sentencing guidelines apply. MCL 769.34(2); People v Reynolds, 240 Mich App
250, 253; 611 NW2d 316 (2000). A court may depart from the legislative guidelines if it has
substantial and compelling reasons to do so, and states those reasons on the record. MCL
769.34(3). A court may not depart from the legislative sentencing guidelines based on certain
specified factors, including gender, race, ethnicity, national origin, and lack of employment,
MCL 769.34(3)(a), nor may it base a departure on an offense characteristic or offender
characteristic already considered in determining the guidelines range unless the court finds,
based on facts in the court record, that the characteristic was given inadequate or
disproportionate weight, MCL 769.34(3)(b).
In reviewing a departure from the legislative guidelines range, the existence of a
particular factor is a factual determination this Court reviews for clear error, the determination
that the factor is objective and verifiable is reviewed as a matter of law, and the determination
that the factors constituted substantial and compelling reasons for departure is reviewed for
abuse of discretion. People v Babcock, 244 Mich App 64, 75-78; 624 NW2d 479 (2000).
A
At the time of the offense, defendant, his wife, and co-defendant were in route to the
Clare County jail. Defendant had been arraigned on a misdemeanor insurance fraud charge and
had been unable to post the required bond. The three escaped from the van, confronted the
victim in the parking lot of a Jehovah’s Witness Kingdom Hall, where she was sitting in her car,
and took the victim’s car and drove away. Apparently co-defendant confronted the victim and
ordered her out of the car, and defendant and his wife joined him. Defendant’s sentencing
guidelines range was ten to twenty-three months. That he was a fourth habitual offender raised
the range to ten to forty-six months. The trial court departed upward, sentencing defendant to
five to ten years for the larceny from a person conviction:
***
. . . but the fact remains is that you continue to break the law and I can only
imagine how if it was your sister or your grandmother or your brother who were
sitting in the parking lot at the Jehovah’s Witness, the Kingdom Hall and had
three people who had just escaped from custody involved in a carjacking, one
your co-defendant, Mr. Davis, threatening her in the manner that he did, I’m sure
you would be appalled and would want that person punished.
DEFENDANT EDWARDS: Right.
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THE COURT: Perhaps that relative was simply trying to go to church, so having
said that, your guidelines are ten to forty-six months. I’m going to go slightly
above the guidelines
***
I think the guidelines don’t take into account at all what the full impact of what
happened here is. I think the guidelines at the very best attempt to force all these
crimes in a certain kind of category, but this was done during an escape and I
don’t think that’s effectively dealt with, even though there is some assessment in
offense variable nineteen and offense variable six and previous record variable
six to some extent, but I think they wholly don’t speak to the – the guidelines
don’t, to what happened in this case.
The top of your guidelines would be forty-six months. That would be just under
four years. It’s the sentence of this Court that you be committed to the Michigan
Department of Corrections on Count I for no less than five years and no more
than ten years. On Count II, it’s the sentence of this Court that you serve – it says
a one year – two year maximum. It’s just a one year, isn’t it?
MR. TALON: It’s a one year misdemeanor, Judge.
THE COURT: I’ll make that correction. You do a year in jail. The times on
Count I and II will be concurrent, but consecutive to the sentence you are
currently serving. I understand that you were not on parole. You had just been
released from parole some months earlier, but certainly consecutive to whatever
the offense was that you were being transported for. [Emphasis added.]
B
Prior record variable six is “relationship to the criminal justice system,” and provides:
Score prior record variable 6 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) The offender is a prisoner of the department of corrections or serving a
sentence in jail ……………………………………………………………20 points
(b) The offender is incarcerated in jail awaiting adjudication or sentencing on a
conviction or probation violation…………………………………………15 points
(c) The offender is on parole, probation, or delayed sentence status or on bond
awaiting adjudication or sentencing for a felony ………………………...10 points
(d) The offender is on probation or delayed sentence status or on bond awaiting
adjudication or sentencing for a misdemeanor ………………………….....5 points
(e) The offender has no relationship to the criminal justice system ………0 points
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***
(3) As used in this section:
***
(b) “Prisoner of the department of corrections or serving a sentence in jail”
includes an individual who is an escapee. [MCL 777.56.]
At sentencing, defendant challenged the scoring of fifteen points under PRV 6, arguing that five
points was appropriate because defendant was on bond awaiting adjudication for a misdemeanor
at the time of the escape. The trial court disagreed and left the score at fifteen points.
Offense variable nineteen is “threat to the security of a penal institution or court or
interference with the administration of justice . . .” MCL 777.49. It provides:
Score offense variable 19 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) The offender by his or her conduct threatened the security of a penal
institution or court ……………………………………………………….25 points
(b) The offender used force or the threat of force against another person or the
property of another person to interfere with, attempt to interfere with, or that
results in the interference with the administration of justice or the rendering of
emergency services ………………………………………………………15 points
(c) The offender otherwise interfered with or attempted to interfere with the
administration of justice ………………………………………………….10 points
(d) The offender did not threaten the security of a penal institution or court or
interfere with or attempt to interfere with the administration of justice or the
rendering of emergency services by force or threat of force …………….. 0 points
At sentencing, defendant objected to this variable being scored at ten points, but the court denied
his request and that scoring remained.
C
A court may not base an upward departure on an offense characteristic or offender
characteristic already considered in determining the guidelines range unless the court finds,
based on facts in the court record, that the characteristic was given inadequate or
disproportionate weight. MCL 769.34(3)(b). While the fact that defendant was an escapee was
considered to some extent in the guidelines by prior record variable six and offense variable
nineteen, the trial court determined that the guidelines accorded that fact inadequate weight,
stating that the guidelines did not effectively deal with the fact that “this was done during an
escape.” While defendant’s status as an escapee was a factor in assessing fifteen points under
prior record variable six in that he was not regarded as being on bond, because he had not posted
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bond, and was, rather, regarded as being incarcerated, the factor did not account for the fact that
the offense was committed during the course of an escape. In other words, the variable did not
distinguish between the circumstances of a person committing the offense while in the course of
escaping, and a person who has previously successfully escaped committing the offense at a later
time. The court correctly determined that the fact that defendant was in the course of escaping
and the victim was confronted by co-defendant in handcuffs, made the offense more egregious.
Offense variable nineteen also reflected to some extent that defendant was in the course
of escaping. However, that variable focused on the effect on the administration of justice, not
the aggravation of the larceny inherent in the victim being confronted by persons who appeared
to be subject to a heightened level of desperation. Under the circumstances, we are unable to
conclude that the trial court’s departure violated the statute.
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Barbara B. MacKenzie
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