PEOPLE OF MI V ROBERT DANIEL CLARAMUNT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 11, 2011
Plaintiff-Appellee,
v
No. 294279
Oakland Circuit Court
LC No. 2008-221122-FH
ROBERT DANIEL CLARAMUNT,
Defendant-Appellant.
Before: CAVANAGH, P.J., and HOEKSTRA and GLEICHER, JJ.
GLEICHER, J. (dissenting).
I respectfully disagree with the majority’s conclusion that defendant Robert Daniel
Claramunt’s challenge to his sentence qualifies as moot, and would instead decide two of the
issues presented in Claramunt’s favor.
Claramunt pleaded no contest to resisting or obstructing a police officer, MCL
750.81d(1), domestic violence, MCL 750.81(2), disturbing the peace, MCL 750.170, and
malicious destruction of personal property, MCL 750.377a(1)(d). In November 2008, the trial
court sentenced Claramunt as a third habitual offender, MCL 769.11, to 27 months’ to 15 years’
imprisonment for the resisting or obstructing conviction, together with concurrent sentences of
93 days for the domestic violence and malicious destruction of property convictions, and 90 days
for the disturbing the peace conviction. Claramunt appeals by delayed leave granted his sentence
for the resisting or obstructing conviction.
The majority concludes that because Claramunt has served his minimum sentence, this
Court lacks the ability to fashion a remedy, making his appellate claims moot. Ante at 1-2. In
my view, a remedy exists:
correction of the sentencing information report (SIR).
Notwithstanding that Claramunt has served his 27-month minimum sentence, correction of the
SIR may influence Claramunt’s eligibility for parole. Stated differently, this Court’s failure to
correct Claramunt’s sentence may negatively affect his ability to achieve parole, rendering his
sentencing claims justiciable. “[A]n issue is not moot if the action complained of will continue
to adversely affect the party in some collateral way.” Lenart v Ragsdale, 148 Mich App 571,
575; 385 NW2d 282 (1986). In People v Melton, 271 Mich App 590, 593 (opinion by DAVIS,
P.J.); 722 NW2d 698 (2006), a conflict panel of this Court observed that “a scoring error may
still affect a defendant through such things as its effect on the calculation of parole eligibility.”
“The parole board may consider” “[t]he nature and seriousness of the offenses for which the
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prisoner is currently serving.” 1996 MR 1, R 791.7715(2)(a)(i). Consequently, a judicial finding
used to enhance a defendant’s sentence likely merits parole board attention. Because the
information contained in Claramunt’s SIR could collaterally influence his parole eligibility, I
respectfully disagree with the majority’s decision to decline review of the factors providing the
foundation for his minimum sentence.
The presentence investigation report (PSIR) describes as follows the events surrounding
Claramunt’s plea-based convictions:
On 04/28/08, Oakland County Sheriff Deputy was on patrol in the parking
lot of Kroger’s when the store managers waived [sic] him down. The managers
told the deputy that a female employee had just been assaulted by her exboyfriend, the defendant, when he threw a knife at her and then fled the store.
The deputy was told that the defendant entered the K-Mart. The deputy along
with the two Kroger managers entered K-Mart to look for the defendant. One of
the managers pointed the defendant out to the deputy. The deputy activated his
taser when the defendant ran into the aisle with the deputy. The deputy walked
towards the defendant and ordered him to stop. The defendant began to turn so
the deputy ordered him to stop or be tasered. The defendant yelled for the deputy
to go ahead and began sprinting away from the deputy. The deputy deployed the
taser and both darts impacted the defendant, but had no affect [sic] on the
defendant. The defendant continued running and snapped both leads. The deputy
reloaded the taser and continued to pursue the defendant on foot through the store.
The defendant exited the store and the deputy followed on foot. The deputy
requested backup and got his vehicle and began to pursue the defendant. He
observed the defendant walking behind a gas station, now coatless and shirtless.
The deputy again pursued him on foot when the defendant came from behind a
dumpster riding a bike. The deputy followed in his patrol car and pulled up in
front of the defendant when the defendant ran into the front tire of the patrol car.
The defendant fell to the ground, but was uninjured. The defendant was ordered
to turn to his stomach. He began to turn over, but then was going to get up when
another deputy arrived. The defendant now complied and was secured. The
defendant was placed inside the patrol car. The defendant’s coat and shirt were
recovered with one of the taser darts still attached to the coat.
Claramunt complains that the trial court erred by scoring any points under offense
variable (OV) 1 or OV 2, which concern, respectively, the “aggravated use of a weapon,” MCL
777.31(1), and the “lethal potential” of a weapon possessed or used. MCL 777.32(1).1
1
The trial court scored five points for OV 1, which permits a court to assess five points when
“[a] weapon was displayed or implied.” MCL 777.31(1)(c). The trial court also scored five
points under OV 2, which allows this score when “[t]he offender possessed or used a pistol, rifle,
shotgun, or knife or other cutting or stabbing weapon.” MCL 777.32(1)(d).
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Claramunt contends that because he did not possess a weapon when he committed the sentencing
offense, resisting or obstructing a police officer, these OVs should not have been scored.
In People v McGraw, 484 Mich 120, 129; 771 NW2d 655 (2009), our Supreme Court
held that “the offense variables are scored by reference only to the sentencing offense, except
where specifically provided otherwise.” Alternatively phrased, “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. No evidence of
record supported the trial court’s finding that Claramunt used a weapon when he resisted the
police officers who tried to subdue him. Rather, the information available to the trial court
established that Claramunt had divested himself of the knife before resisting arrest. Subtracting
10 points from Claramunt’s OV scores would have placed him in a different sentencing grid,
resulting in a lower minimum sentence. MCL 777.68. Because the parole board may consider
all information pertinent to Claramunt’s sentence, I would remand for correction of the SIR.2
/s/ Elizabeth L. Gleicher
2
In my view, Claramunt’s unpreserved challenge to the scoring of OV 19 lacks merit. Given
Claramunt’s aggressive behavior, the trial court could properly have found that his actions
amounted to a use of force in an attempt to interfere with the administration of justice. People v
Barbee, 470 Mich 283, 286-288; 681 NW2d 348 (2004).
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