People v. Smith

                                                                            Michigan Supreme Court
                                                                                  Lansing, Michigan
                                                        Chief Justice:        Justices:



Opinion                                                 Marilyn Kelly         Michael F. Cavanagh
                                                                              Maura D. Corrigan
                                                                              Robert P. Young, Jr.
                                                                              Stephen J. Markman
                                                                              Diane M. Hathaway
                                                                              Alton Thomas Davis

                                                             FILED DECEMBER 29, 2010

                              STATE OF MICHIGAN

                                      SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

                Plaintiff-Appellant

 v                                                             No. 140371

 DAVID RAY SMITH,

                Defendant-Appellee.


 BEFORE THE ENTIRE BENCH

 YOUNG, J.


         The issue presented in this case is whether offense variable (OV) 19, MCL 777.49,

 may be scored for aggravating conduct that occurred after the sentencing offense was

 completed. In People v McGraw, this Court held that “[o]ffense variables must be scored

 giving consideration to the sentencing offense alone, unless otherwise provided in the

 particular variable.”1 Here, we hold that because the circumstances described in OV 19



 1
     People v McGraw, 

484 Mich 120, 133

; 

771 NW2d 655

 (2009).
expressly include events occurring after the completion of the sentencing offense, scoring

OV 19 necessarily is not limited to consideration of the sentencing offense. Thus, under

the exception to the general rule set forth in McGraw, the offense variable may be scored

for conduct that occurred after the sentencing offense was completed. We reverse the

judgment of the Court of Appeals in part and reinstate defendant’s sentence for

manslaughter.

                         FACTS AND PROCEDURAL HISTORY

       This case stems from an automobile collision in Jackson County in June 2007.

Defendant was driving his 1993 Cadillac with three passengers, including Nicole Wolfe,

who sat in the front passenger seat. Wolfe testified that defendant drove recklessly and at

a high rate of speed when he pulled into a lane of oncoming traffic as a green truck

approached. When Wolfe screamed in fear, defendant indicated that the truck would pull

off the road. Thomas Lantz, the driver of the green truck, observed defendant driving

toward his truck at a high rate of speed. Lantz testified that he pulled over as far as he

could, but was unable to move completely off of the road because road construction

precluded it. At the last moment, defendant swerved back into the proper lane, avoiding

the collision with the truck.

       After the near collision with Lantz’s truck, defendant accelerated through the

construction zone and crested a hill. A short distance away, the victim, Diane Sigers, sat

in her compact automobile, attempting to make a left turn from a cross street. Wolfe

testified that she could see the side of the victim’s car and her head as defendant’s car

approached. Wolfe again screamed, telling defendant that the victim’s car would not

clear the road in time. Defendant assured her that the car would get out of his way, and


                                            2
further increased his speed. Wolfe remembered that defendant applied the brakes just

before impact, but was too late to avoid colliding with Sigers at a high rate of speed. The

forensic pathologist testified that the victim died within a few seconds after the collision

because of the massive injuries she sustained.

        Wolfe spent two days in the hospital, having suffered six fractured ribs, a ruptured

spleen, and a bruised heart in the collision. After she was discharged from the hospital,

defendant began contacting her via telephone. Defendant told Wolfe that she “shouldn’t

talk to anybody” because “there was no proof of anything” and that defendant “was

innocent” as long as Wolfe remained quiet. Defendant told Wolfe that if he could not

“take care of the problem,” then he would “have somebody else do it for” him. As a

result of such statements, Wolfe was initially reluctant to speak with the police.

Eventually, Wolfe did speak with the police, relaying what she recalled from before the

collision, as well as defendant’s statements to Wolfe after she was released from the

hospital.

        A jury convicted defendant of manslaughter,2 reckless driving,3 and witness

intimidation.4 At sentencing, defense counsel made two objections to the scoring of the

sentencing guidelines, including arguing that defendant’s witness intimidation conviction

precluded the scoring of OV 19 for the manslaughter conviction. The trial court rejected

the argument, ruling that defendant’s attempt to interfere with the administration of

2
    MCL 750.321.
3
    MCL 257.626.
4
    MCL 750.122(7)(b).



                                             3
justice         was   a   “separately   cognizable       consideration[]   within   the   sentencing

guidelines . . . .”        The recommended minimum sentence range for defendant’s

manslaughter conviction was 50 to 125 months’ imprisonment. Defendant was sentenced

within the sentencing guidelines as a second-offense habitual offender5 to 10 to 22 years

for manslaughter, along with a concurrent sentence of 5 to 15 years for witness

intimidation.6

          In his appeal of right, defendant argued that scoring OV 19 in addition to his

conviction for witness intimidation amounted to “doubly penalizing” defendant. In an

unpublished opinion per curiam, 7 the Court of Appeals affirmed defendant’s convictions

but remanded for resentencing, relying on this Court’s recently decided opinion in

McGraw. After noting the rule of McGraw that offense variables may not be scored for

conduct that occurred after the completion of the sentencing offense unless provided for

in the particular variable, the Court of Appeals ruled that OV 19 “does not expressly or

specifically provide” for the consideration of conduct that occurred after the completion

of the sentencing offense.8 Because defendant’s threatening statements to Wolfe were

committed after the manslaughter was completed, the Court of Appeals held that

defendant should have received zero points for OV 19. The Court of Appeals affirmed

5
    MCL 769.10.
6
  The sentence for witness intimidation was an upward departure. Defendant received
time served for the reckless driving conviction.
7
 People v Smith, unpublished opinion per curiam of the Court of Appeals, issued
November 19, 2009 (Docket No. 286479).
8
    Id. at 5.



                                                     4
defendant’s convictions but remanded for resentencing on the manslaughter conviction

because defendant’s minimum sentence fell outside the corrected guidelines range of 43

to 107 months’ imprisonment.9

         Both defendant and the prosecution sought leave to appeal in this Court. We

denied defendant’s application10 and granted the prosecution leave to appeal, “limited to

the issue whether points may be assessed pursuant to MCL 777.49 (OV 19) for conduct

that occurs after the sentencing offense is completed.”11

                                         STANDARD OF REVIEW

         The interpretation and application of the legislative sentencing guidelines, MCL

777.1 et seq., involve legal questions that are reviewed de novo.12

                                                   ANALYSIS

         The statutory provision for OV 19 can be found at MCL 777.49, which provides:

                Offense variable 19 is threat to the security of a penal institution or
         court or interference with the administration of justice or the rendering of
         emergency services. 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



9
    People v Francisco, 

474 Mich 82, 89-91

; 

711 NW2d 44

 (2006).r
10
     People v Smith, 

485 Mich 1134

 (2010).
11
     People v Smith, 

485 Mich 1133

 (2010).
12
     People v Morson, 

471 Mich 248, 255

; 

685 NW2d 203

 (2004).



                                                           5
                 (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

         In McGraw, this Court held that “[o]ffense variables must be scored giving

consideration to the sentencing offense alone, unless otherwise provided in the particular

variable.”13 Therefore, we must consider whether OV 19 provides for the “consideration

of conduct after completion of the sentencing offense.”14

          As an initial matter, we note that the sentencing guidelines categorize all felonies

into one of six distinct offense categories: crimes against a person, crimes against

property, crimes involving a controlled substance, crimes against public order, crimes

against public trust, and crimes against public safety.15 These six offense categories

encompass a broad variety of crimes, ranging from kidnapping16 to removing a shrub




13
     McGraw, 

484 Mich at 133

.
14
     

Id. at 133-134

.
15
     MCL 777.5.
16
     MCL 750.349. Kidnapping is categorized as a crime against a person. MCL 777.16q.



                                                                6
within a highway right of way without a permit in order to make a sign more visible.17

The Legislature has also directed, without exception, that OV 19 be scored for each and

every one of these offense categories.18

        The aggravating factors considered in OV 19 contemplate events that almost

always occur after the charged offense has been completed. For example, pursuant to

MCL 777.49(a), 25 points are assessed under OV 19 for conduct that threatens “the

security of a penal institution or court . . . .” It is axiomatic that every defendant charged

with a felony must, at a minimum, enter a court in order to have his criminal charges

resolved.19 And while not every criminal defendant is required to confront a penal

institution in consequence of his felonious activity, by the time a defendant encounters

either a courthouse or a penal institution, the sentencing offense has long been

completed. The express consideration of these events explicitly indicates that postoffense

conduct may be considered when scoring OV 19.

        The Criminal Defense Attorneys of Michigan argues as amicus curiae that a

defendant may be properly assessed 25 points under OV 19, but only if the underlying

sentencing offense itself threatened the security of a courthouse or penal institution, such

as when the sentencing offense was committed while the defendant was in prison.

However, nothing in the language of MCL 777.49(a) is limited to those instances in
17
   MCL 252.311. Unauthorized shrubbery removal in a highway right of way is
categorized as a crime against property. MCL 777.12b.
18
     MCL 777.22.
19
     MCL 767.1.



                                              7
which the sentencing offense itself occurred within a court or penal institution.

Moreover, as noted earlier, the Legislature has specifically commanded that OV 19 be

scored for every category of felony. If the scoring of OV 19 were limited to felonies that

threatened the security of a court or penal institution, it would be unclear how the full

force of OV 19 could ever be applied to crimes that do not, in and of themselves, threaten

the security of a court or penal institution, such as operating a locomotive under the

influence of alcohol and causing death,20 arson of woods and prairies,21 or entering a

horse in a race under a false name.22

         Additionally, OV 19 requires the assessment of 15 points if a defendant used force

or the threat of force against another person or another person’s property to interfere with

“the administration of justice or the rendering of emergency services . . . .”23 Ten points

are assessed under OV 19 if the defendant interfered with the administration of justice,

but did so without the use of force or a threat of force.24 In People v Barbee,25 this Court

addressed the meaning of interference with the administration of justice within OV 19.

In Barbee, the defendant gave a police officer a false name during a traffic stop. The


20
     MCL 462.353(6); MCL 777.14m.
21
     MCL 750.78; MCL 777.16c.
22
     MCL 750.332; MCL 777.16q.
23
     MCL 777.49(b).
24
     MCL 777.49(c).
25
     People v Barbee, 

470 Mich 283

; 

681 NW2d 348

 (2004).



                                             8
defendant pleaded guilty of operating a motor vehicle while intoxicated, third offense.26

Because the defendant gave the police a false name, the trial court assessed 10 points for

OV 19. This Court upheld the scoring, rejecting the defendant’s argument that OV 19

could only be scored when the defendant’s conduct interfered with the judicial process.

Rather, we concluded that interference with the administration of justice “encompasse[d]

more than just the actual judicial process” and that the scoring of OV 19 was proper

because the police “are an integral component in the administration of justice, regardless

of whether they are operating directly pursuant to a court order.”27 The “administration

of justice” process, including the “actual judicial process,” is not commenced until an

underlying crime has occurred, which invokes the process. Because OV 19 specifically

provides for the “consideration of conduct after completion of the sentencing offense,”28

conduct that occurred after an offense was completed may be considered when scoring

the offense variable.

                                       CONCLUSION

           Because the circumstances described in OV 19 expressly include events occurring

after a felony has been completed, the offense variable provides for the “consideration of

conduct after completion of the sentencing offense.”29 Under the exception to the general


26
     MCL 257.625.
27
     Barbee, 

470 Mich at 288

.
28
     McGraw, 

484 Mich at 133-134

.
29
     

Id.

                                              9
rule set forth by this Court in McGraw, OV 19 may be scored for conduct that occurred

after the sentencing offense was completed. We reverse the judgment of the Court of

Appeals in part and reinstate defendant’s sentence for manslaughter.


                                                       Robert P. Young, Jr.
                                                       Maura D. Corrigan
                                                       Stephen J. Markman
                                                       Diane M. Hathaway
                                                       Alton Thomas Davis




                                           10
                             STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

             Plaintiff-Appellant,

V                                                           No. 140371

DAVID RAY SMITH,

             Defendant-Appellee.


CAVANAGH, J. (dissenting).
      I respectfully dissent because I disagree with the majority’s conclusion that a

sentencing court may employ a transactional approach to scoring offense variable (OV)

19, MCL 777.49, in the sentencing guidelines. Rather, I think that the general rule that

“the appropriate offense variables are generally to be scored on the basis of the

sentencing offense” applies to OV 19. People v McGraw, 

484 Mich 120, 124

; 

771 NW2d 655

 (2009) (quotation marks omitted). Accordingly, I would affirm the judgment

of the Court of Appeals.

      As the majority correctly recites, in McGraw this Court held that “[o]ffense

variables must be scored giving consideration to the sentencing offense alone, unless

otherwise provided in the particular variable.” 

Id. at 133

. The majority also correctly

notes that we recognized a limited exception to this general rule. Specifically, we held

that offense variables may be scored on the basis of conduct not related to the sentencing

offense when an offense variable “specifically provide[s] otherwise.” 

Id. at 125, 129, 135

(emphasis added; quotation marks omitted).
       In McGraw, this Court considered a list of OVs that permit a transactional scoring

approach. 

Id. at 125-126

, quoting People v Sargent, 

481 Mich 346, 349-350

; 

750 NW2d 161

 (2008). For example, MCL 777.44(2)(a) states that “[t]he entire criminal transaction

should be considered” when scoring OV 14, MCL 777.42(2)(a) provides that OV 12

applies to acts that occurred within 24 hours of the sentencing offense and have not

resulted and will not result in separate convictions, MCL 777.43(2)(a) allows scoring of

OV 13 using “all crimes within a 5-year period,” MCL 777.46(2)(a) permits a court to

add the “aggregate value of the property involved” when scoring OV 16, and MCL

777.38(1)(a) focuses on conduct “beyond the time necessary to commit the offense”

when scoring OV 8. These examples illuminate the clarity with which the Legislature

made its intent known in the sentencing guidelines. As this Court stated in McGraw,

conduct not related to the sentencing offense may only be considered when the

Legislature has explicitly stated that such conduct may be considered. McGraw, 

484 Mich at 126

.

       Call me a strict constructionist if you must, but contrary to the majority’s

conclusion, nothing in OV 19 “specifically” or “explicitly” permits a transactional

approach to scoring that OV. The Legislature has established that it is capable of clearly

and specifically expressing its intent regarding when a sentencing court may consider

transactional conduct, and it would have done so in drafting OV 19 if that was truly its

intent. The lack of specificity regarding the application of a transactional approach to

OV 19, combined with the fact that the conduct described in OV 19 could occur during

the commission of a charged offense, indicates a legislative intent to only score OV 19 on

the basis of offense-specific conduct.


                                            2
      The majority’s reliance on MCL 777.22 to support its conclusion is equally

unpersuasive. Although the majority is correct that, under MCL 777.22, OV 19 is

generally applicable to all six offense categories, this does not discount the fact that a

court may only score OV 19 when it is appropriate for the facts of a particular case. The

Legislature provided a detailed and unambiguous explanation of when such scoring is

appropriate, and a sentencing court is not permitted to ignore the statutory language of a

specific OV statute and rely solely on the fact that a sentencing court is generally

permitted to score a particular OV for a particular offense category under MCL 777.22.

As summarized earlier, the Legislature has demonstrated that it is capable of expressly

stating when a sentencing court may apply a transactional approach to scoring OVs.

Because the Legislature did not do so in MCL 777.49, I believe the general rule of

applying an offense-specific approach to scoring OVs applies to OV 19.

      Moreover, the majority erroneously extends People v Barbee, 

470 Mich 283

; 

681 NW2d 348

 (2004), beyond its holding to support its reasoning. Barbee did not directly

consider whether OV 19 should be scored using conduct committed after the sentencing

offense is complete.     Rather, Barbee only addressed the meaning of the phrase

“interference with the administration of justice” as it is used in OV 19.1 Although I

remain committed to the holding in Barbee that the phrase “‘administration of justice’”

“encompasses more than just the actual judicial process,” 

id. at 287-288

, I disagree with


1
  Furthermore, Barbee is distinguishable from this case on its facts because the defendant
in Barbee gave a false name during the traffic stop associated with the sentencing offense
whereas here defendant did not threaten the witness until days after the criminal conduct
that was the focus of the sentencing offense.



                                            3
the majority that the administration of justice “is not commenced until an underlying

crime has occurred,” ante at ___, to the extent that the majority means that a crime must

be complete before the “administration of justice” can begin. Rather, I think that the

“administration of justice” may begin simultaneously with the commission of a crime in

some circumstances. For example, if the police arrive on the scene of an ongoing crime

and the defendant begins shooting at the officers or otherwise prevents the officers from

“administering justice” while still in the process of committing the underlying crime, the

defendant is simultaneously committing the sentencing offense and interfering with the

administration of justice. Similarly, a defendant interferes with the administration of

justice anytime he or she threatens a witness, even if the defendant makes the threat

before law enforcement is actively “administering justice” because the defendant’s act of

threatening the witness has the potential to impede the administration of justice. Under

this approach, a defendant who threatens a witness while committing a crime could have

points assessed under OV 19 because the defendant interfered with the administration of

justice while committing the sentencing offense. Thus, applying the offense-specific

approach to scoring OV 19 would not result in as narrow an application as the majority

implies because the conduct considered by OV 19 does not necessarily include conduct

occurring after an offense has been completed.

      Finally, applying an offense-specific approach to OV 19 would not leave

defendant’s crime of witness intimidation unpunished. As discussed in McGraw, a

sentencing court may consider transactional conduct “when deciding what sentence to

impose within the appropriate guidelines range and whether to depart from the guidelines

recommendation.” McGraw, 

484 Mich at 129

. Moreover, “the prosecution is always


                                            4
free to charge a defendant with multiple offenses if they exist, rather than a single

offense.” 

Id. at 130

. Indeed, it is clear that the trial court and the prosecution made use

of these valid alternatives in this case. First, while explaining its decision to sentence

defendant at the top of the guidelines minimum sentence range for his manslaughter

conviction, the trial court seemed to take defendant’s crime of witness intimidation into

consideration. The trial court noted that defendant had failed to take responsibility for his

conduct and had threatened a witness in an attempt to avoid responsibility. Second,

defendant was convicted of and sentenced for witness intimidation on the basis of the

conduct that was the foundation for the trial court’s decision to assess 15 points under

OV 19.

       Although defendant’s conduct was deplorable, I believe the majority’s holding

erroneously permits a sentencing court to consider transactional conduct when scoring

OV 19, contrary to the general rule explained in McGraw. Accordingly, I respectfully

dissent.


                                                         Michael F. Cavanagh
                                                         Marilyn Kelly




                                             5