People of Michigan v. Michael James Scandalito ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 22, 2022
Plaintiff-Appellee,
v No. 359491
St. Clair Circuit Court
MICHAEL JAMES SCANDALITO, LC No. 21-000079-FC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and MURRAY and RIORDAN, JJ.
PER CURIAM.
Defendant, Michael Scandalito, pleaded guilty to first-degree home invasion, MCL
750.110a(2), assault with intent to rob while armed, MCL 750.89, assault with a dangerous
weapon, MCL 750.82, and two counts of resisting or obstructing a police officer, MCL 750.81d(1).
The trial court sentenced him as third-offense habitual offender, MCL 769.11, to serve 15 to 40
years’ imprisonment for the first-degree home invasion conviction, 15 to 40 years’ imprisonment
for the assault with intent to rob while armed conviction, two to eight years’ imprisonment for the
assault with a dangerous weapon conviction, and one to four years’ imprisonment for the resisting
or obstructing a police officer convictions. We affirm for the reasons stated in this opinion.
I. BASIC FACTS
Scandalito pleaded guilty to the above charges. As the basis for his plea, he testified that
in October 2020, he entered his grandmother’s home without permission and demanded that she
give him the keys to her vehicle so that he could take it. When she refused, he held a pair of
scissors to her neck and demanded the keys. Two other people were in the home at the time:
Scandalito’s great uncle, who ran from the home and called the police, and Scandalito’s cousin,
who tackled Scandalito and fought him. Scandalito had a knife or a box-cutter in his hand during
the fight with his cousin, and, although he was not cut, Scandalito’s cousin lost some teeth during
the altercation. When the police arrived, they attempted to separate Scandalito and his cousin.
Scandalito was forcibly restrained by the police; Scandalito testified that he resisted and obstructed
the officers’ ability to do their jobs.
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In exchange for Scandalito’s guilty pleas, the prosecution agreed to (1) send a
memorandum to the probation department of the Michigan Department of Corrections (MDOC)
with the parties’ calculated sentencing guidelines range, which reflected a range of 126 to 315
months’ imprisonment; (2) not seek consecutive sentencing; and (3) reduce Scandalito from a
fourth-offense habitual offender to a third-offense habitual offender. Before accepting
Scandalito’s pleas, the trial court inquired whether Scandalito understood that the trial court was
not bound by the parties’ calculated guidelines range and that it had the ultimate authority to score
the guidelines and sentence Scandalito accordingly. Scandalito stated he understood. He also
affirmed his understanding that he would not be able to withdraw his plea if the court did not
adhere to the guidelines range calculated by the parties.
After accepting Scandalito’s plea, the trial court referred the matter to the probation
department to create a presentence investigation report (PSIR). The probation department received
the prosecution’s memorandum concerning the parties’ calculated guidelines range. However, it
calculated that the sentencing guidelines range was 171 to 427 months, not 126 to 315 months.
The difference in the guidelines range was because the probation department discovered that
Scandalito had four additional felony convictions that had not been accounted for when the parties
calculated the guidelines. In a sentencing memorandum, Scandalito noted that there was no
sentencing agreement, but argued that the court should apply the guidelines range that had been
calculated in good faith by the parties. In response, the prosecution asserted that it had adhered to
the sentencing agreement by providing the probation department with a memorandum indicating
the parties’ calculated guidelines range and detailing the other agreements. The prosecution
objected to Scandalito’s request that the court apply the parties’ calculated guidelines range, noting
that the court had warned Scandalito before he pleaded guilty that it was not bound by the parties’
calculation of the guidelines.
At the sentencing hearing, the trial court determined it would make some changes to the
assessed variables in the guidelines calculated by the MDOC, but noted the MDOC was “in the
second best position to have an understanding as to what the prior record variables should look
like.” The trial court scored Scandalito’s guidelines sentence range at 135 to 337 months’
imprisonment and sentenced him accordingly. Thereafter, Scandalito moved to correct his
sentence, for specific performance, and for resentencing, arguing his guilty pleas “were induced
in part by the prosecution’s commitment ‘to memo the probation department the guidelines
scoring, which is 126 months to 315 months.’ ” He alleged that the prosecution violated this
agreement “when it specifically disclaimed that the agreed upon score was the correct [score] in
its memo to the MDOC and its argument to the Court.” Scandalito noted: “The 70-point [prior
record variable (PRV)] Score included the caveat: ‘Dependent upon plea; assuming no other
convictions.’ ” Scandalito contended: “The purpose served by the prosecutor’s agreement ‘to
memo the probation department the [126 to 315-month] guidelines scoring,’ was that the
Prosecutor’s Office would stand behind that score, defend its accuracy, and urge the MDOC, and
by extension, the Court, to adopt that guideline range[.]” He argued that he was entitled to have
the prosecution “specifically perform its obligation under the plea agreement by not just providing
the MDOC a document listing the 126- to 315-month guideline range it agreed to, but by advancing
that as the correct guideline range” that should be used by the MDOC and the trial court.
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Further, Scandalito argued he was also entitled to resentencing because the guidelines were
incorrectly scored. PRV 2 should have been assessed at 20 points because the attempted felonious
assault conviction considered by the MDOC was a misdemeanor, not a felony, under the Michigan
Penal Code, MCL 750.1 et seq., and offense variable (OV) 9 was improperly assessed at 10 points
because only his grandmother was in immediate danger of physical injury or loss of life during the
sentencing offense. Scandalito argued that correction of the improperly assessed variables
required resentencing because it reduced his guidelines range to 108 to 270 months’ imprisonment.
In response, the prosecution asserted that the agreement between the parties was fulfilled.
That agreement was not a “sentencing agreement” because it did not mandate that the trial court
adhere to the parties’ calculated guidelines range. Consequently, Scandalito was not entitled to a
specific sentence in exchange for his pleas. The prosecution also contended that PRV 2 and OV
9 were properly scored.
At the hearing on Scandalito’s motion, the trial court stated that Scandalito’s argument for
specific performance was misplaced, because the parties could not bind the trial court to a specific
guidelines score. The trial court determined there was “no type of agreement[,]” because
Scandalito knew when he entered his pleas the calculated range was a good-faith effort, and the
prosecution never affirmatively changed its position by arguing for a higher sentence. It was
common for the prosecution to engage in good-faith negotiations with defendants, which would
be placed on the record when the plea is made, and then put into a memorandum and sent to the
MDOC for consideration when drafting the PSIR. This is exactly what happened in this case. The
trial court concluded the prosecution “held up its end of the bargain[,]” and made no promises for
specific performance.
Moreover, the trial court was not persuaded by Scandalito’s argument regarding PRV 2,
noting Scandalito pleaded guilty to attempted felonious assault as a second-offense habitual
offender, which was a class “H” felony, MCL 777.52(2)(a); MCL 777.19; MCL 777.16d. Nor
was the trial court persuaded by Scandalito’s argument regarding OV 9, because, when considering
the number of victims under OV 9, the entire transaction is considered. The court reasoned that
the fight with his cousin occurred very shortly after his assault of his grandmother, and the two
assaults were part of the same transaction or occurrence.
II. SENTENCING
A. STANDARD OF REVIEW
Scandalito argues the trial court erred by refusing to order specific performance from the
prosecution regarding the plea agreement. He also argues that the court erred by refusing to
resentence him despite the fact that PRV 2 and OV 9 were improperly scored. A plea agreement
“must be reviewed in the context of its function to serve the administration of justice.” People v
Swirles, 218 Mich App 133, 135; 553 NW2d 357 (1996). “Contractual analogies may be applied
in the context of a plea agreement . . . .” Id. Factual issues are reviewed for clear error. Id. at 136.
“A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is
left with a definite and firm conviction that a mistake has been made.” Id. Questions of law are
reviewed de novo. People v Steele, 283 Mich App 472, 486; 769 NW2d 256 (2009). “This Court
reviews a trial court’s scoring decision under the sentencing guidelines to determine whether the
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trial court properly exercised its discretion and whether the record evidence adequately supports a
particular score.” People v Crews, 299 Mich App 381, 387; 829 NW2d 898 (2013) (quotation
marks and citation omitted).
B. ANALYSIS
1. SPECIFIC PERFORMANCE
A “defendant may withdraw his plea when a sentence agreement or recommendation will
not be satisfied in order to protect the defendant’s right to make a knowing and intelligent waiver
of his right to trial and its companion rights.” People v Siebert, 450 Mich 500, 510; 537 NW2d
891 (1995) (quotation marks and citation omitted). “[W]hen a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Id. at 517 (quotation marks, citation, and emphasis
omitted).
Although there is no formal written plea agreement in this case, the parties put the terms
of the plea agreement on the record in open court. The agreement required: (1) the prosecution
agreeing to send a memorandum to the probation department containing the parties’ good-faith
guidelines range calculations; (2) Scandalito being reduced from a fourth-offense habitual offender
to a third-offense habitual offender; and (3) the prosecution agreeing not to seek consecutive
sentencing. The prosecution fulfilled its obligations under the plea agreement: it lowered
Scandalito from a fourth-offense habitual offender to a third-offense habitual offender, sent a
memorandum to the probation department with the parties’ calculated guidelines range, and did
not recommend consecutive sentencing. As such, there is nothing for the prosecution to
specifically perform.
Contrary to Scandalito’s argument on appeal, nothing in the record exists suggesting the
plea agreement was a “sentencing agreement,” such that the prosecution and the trial court, in
accepting the pleas, were required to adhere to the pleas’ terms or permit Scandalito to withdraw
his pleas. Nor is there any indication that, in addition to sending the memorandum to the probation
department, the prosecution agreed to argue that the guidelines as calculated by the parties were
accurate notwithstanding additional information that showed that they did not account for
Scandalito’s entire criminal history. Thus, the prosecution did not breach its agreement when it
deferred to the probation department’s scoring of the sentencing guidelines, which included
additional criminal convictions. Indeed, the PRV score calculated by the parties contained a caveat
that it assumed there were no other convictions. Interpreting the plea agreement as requiring the
prosecution to stand behind the calculations, regardless of what the probation department found,
would render the caveat to the PRV score surplusage. See Klapp v United Ins Group Agency, Inc,
468 Mich 459, 468; 663 NW2d 447 (2003) (“[C]ourts must also give effect to every word, phrase,
and clause in a contract and avoid an interpretation that would render any part of the contract
surplusage or nugatory.”).
2. VARIABLE ASSESSMENTS
Scandalito next asserts that PRV 2 and OV 9 were incorrectly scored. We disagree.
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PRV 2 addresses “prior low severity convictions.” MCL 777.52. The trial court must
score PRV 2 at 30 points if “[t]he offender has 4 or more prior low severity felony convictions.”
MCL 777.52(1)(a). On appeal, Scandalito contends he is not subject to 30 points under PRV 2,
because, under the Michigan Penal Code, attempted felonious assault is categorized as a high court
misdemeanor. Specifically, felonious assault is “punishable by imprisonment for not more than 4
years or a fine of not more than $2,000.00, or both,” MCL 750.82(1), which means that, under
MCL 750.92(3), attempted felonious assault is classified as a misdemeanor. See MCL 750.92(3)
(“If the offense so attempted to be committed is punishable by imprisonment in the state prison for
a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of
such attempt shall be guilty of a misdemeanor”).
However, “[a]n offense labeled a two-year misdemeanor under the Penal Code falls within
the definition of ‘felony’ under the Code of Criminal Procedure.” People v Smith, 423 Mich 427,
439; 378 NW2d 384 (1985). “In concluding that they could be treated as felonies, we made it
abundantly clear that definitions and labels in one code apply only to that particular code; they are
not to be transferred and applied to other codes.” People v Washington, 501 Mich 342, 357; 916
NW2d 477 (2018).
In other words, an offense expressly labeled a misdemeanor in one code does not
necessarily mean the same offense is a misdemeanor for purposes of interpreting
and applying a different code. Rather, whether a misdemeanor offense in one code
is a misdemeanor or a felony in another code may depend on the latter code’s
definitions. Although two-year misdemeanors in the Penal Code might be
considered misdemeanors for purposes of the Penal Code, when it comes to
interpreting and applying provisions in the Code of Criminal Procedure, we held
that those same two-year misdemeanors must be considered felonies because they
are punishable by more than one year’s imprisonment under the latter code’s
definition of “felony,” regardless of those offenses’ ”misdemeanor” labels. [Id.]
In this case, PRV 2 falls under Michigan’s Code of Criminal Procedure, not the Michigan Penal
Code, and, therefore, the Michigan Code of Criminal Procedure’s definitions are what dictate what
qualifies as a low severity felony conviction.
Under Michigan’s Code of Criminal Procedure, felonious assault is a class “F” felony.
MCL 750.82; MCL 777.16d. Attempts to commit a class “F” felony qualify as class “H” offenses.
MCL 777.19. Class “H” crimes qualify as prior low severity felony convictions. MCL
777.52(2)(a). Accordingly, the trial court did not err by assessing PRV 2 at 30 points, because
attempted felonious assault, under the Michigan Code of Criminal Procedure, is a low severity
felony conviction.
The court also did not err by scoring OV 9 at ten points. OV 9 addresses the number of
victims of a crime. MCL 777.39. A ten-point score is warranted if “[t]here were 2 to 9 victims
who were placed in danger of physical injury or death . . . .” MCL 777.39(1)(c). OV 9 counts
“each person who was placed in danger of physical injury or loss of life or property as a victim.”
MCL 777.39(2)(a). “[O]ffense variables are generally offense specific. The sentencing offense
determines which offense variables are to be scored in the first place, and then the appropriate
offense variables are generally to be scored on the basis of the sentencing offense.” People v
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Sargent, 481 Mich 346, 348; 750 NW2d 161 (2008). “[W]hen [assessing] OV 9, only people
placed in danger of injury or loss of life when the sentencing offense was committed (or, at the
most, during the same criminal transaction) should be considered.” Id. at 350. While “OV 9 does
not provide for consideration of conduct after completion of the sentencing offense[,]” People v
McGraw, 484 Mich 120, 133-134; 771 NW2d 655 (2009), “[a] close proximity to a physically
threatening situation may suffice to count the person as a victim,” People v Rodriguez, 327 Mich
App 573, 582; 935 NW2d 51 (2019) (quotation marks and citation omitted).
Scandalito argues his cousin was only placed in danger of immediate harm after Scandalito
completed his attempt to rob his grandmother. However, Scandalito’s testimony indicates his
cousin was in the room with him and his grandmother while he was committing the sentencing
offense. Indeed, his cousin tackled Scandalito to the ground during the sentencing offense.
Accordingly, Scandalito’s testimony supports the finding he was in the middle of committing the
sentencing offense when his cousin tackled him. As a result, Scandalito’s cousin was placed at
immediate risk of being injured during the sentencing offense, so he must be counted as a victim
under OV 9.
Nevertheless, Scandalito argues the sentencing offense ended when his cousin offered him
his keys, because, once he was offered the keys, his intent to rob his grandmother of her keys was
extinguished, meaning the crime was complete. While this information was not part of
Scandalito’s testimony, it was included in the PSIR. The PSIR indicated that Scandalito’s cousin
“tried to negotiate with the defendant and told him that he could take his own vehicle so he ran
upstairs, got the keys, came back and told [Scandalito] he could take that car and then charged at
him trying to get the scissors away from [Scandalito’s grandmother’s] neck.” Thus, the PSIR
version of events indicates that Scandalito continued to hold a pair of scissors to his grandmother’s
neck after being offered his cousin’s keys. Under those circumstances, it is not apparent that
Scandalito’s intent to rob his grandmother ended when his cousin offered him the keys to his
vehicle. Consequently, the trial court did not clearly err by finding that both Scandalito’s
grandmother and his cousin were placed in danger of physical injury or death during the
commission of the sentencing offense. The court, therefore, did not err by scoring OV 9 at ten
points.
Affirmed.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Michael J. Riordan
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