People of Michigan v. Christopher Bryan Haney ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED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 15, 2022
Plaintiff-Appellee,
v No. 357116
Ionia Circuit Court
CHRISTOPHER BRYAN HANEY, LC No. 2020-018040-FC
Defendant-Appellant.
Before: GLEICHER, C.J., and MARKEY and RICK, JJ.
PER CURIAM.
Defendant pleaded guilty to receiving and concealing stolen property with a value of
$1,000 or more but less than $20,000, MCL 750.535(3)(a). The trial court sentenced defendant to
29 months to 5 years’ imprisonment. Defendant filed an application for leave to appeal, raising a
sentencing scoring argument that would alter the minimum sentence guidelines range. This Court
denied leave to appeal. People v Haney, unpublished order of the Court of Appeals, entered June
16, 2021 (Docket No. 357116). Our Supreme Court, in lieu of granting leave to appeal, remanded
the case to this Court for consideration as on leave granted. People v Haney, 968 NW2d 815(2022). We reverse and remand for resentencing.
The Ionia County Sheriff’s Department received a call from a resident who believed,
correctly so, that a stolen camper was in her backyard. The resident had allowed defendant and a
codefendant to live in a tent in her backyard but subsequently noticed that the couple had parked
a camper on her property to live in. Defendant and codefendant were in a dating relationship and
were friends of the resident. The resident’s significant other observed defendant towing the stolen
camper into the backyard using defendant’s van. After a dispute, the resident asked defendant and
codefendant to leave her property. They did so but without the camper.
Defendant entered a plea of guilty to receiving and concealing stolen property with a value
of $1,000 or more but less than $20,000. As the factual basis for his plea, defendant admitted to
knowingly receiving and concealing the stolen camper. Pursuant to the terms of defendant’s guilty
plea, the prosecution dismissed defendant’s fourth-offense habitual offender notice as well as
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charges in another case involving the receipt and concealment of stolen property, possession of a
firearm, and possession of ammunition by a felon.
At the sentencing hearing, defendant objected to the assessment of 10 points for Offense
Variable (OV) 14, MCL 777.44, which is the appropriate score when “[t]he offender was a leader
in a multiple offender situation[.]” MCL 777.44(1)(a). “The entire criminal transaction should be
considered when scoring this variable.” MCL 777.44(2)(a). Defendant argued that there was no
evidence and no indication in the police report that defendant organized the crime or was otherwise
the leader in the commission of the offense. Defendant disagreed with the following comments
the probation agent made in the presentence investigation report (PSIR) regarding why 10 points
were assessed for OV 14:
In the instant offense, the defendant and his significant other [codefendant]
were both charged in relation to the theft of the trailer. The co-defendant was
convicted of a lesser offense. Due to the defendant’s extensive history of property
crimes, as well as the co-defendant’s reduced charge, it is believed the defendant
would be appropriately scored as the leader of the instant offense.
Defendant reasoned that just because he had a more extensive criminal history and pleaded guilty
to a felony in comparison to his codefendant’s plea to a misdemeanor did not necessarily mean
that defendant was the leader in committing this particular crime. Defendant contended that zero
points should be assessed for OV 14.
The trial court found by a preponderance of the evidence that defendant was the leader in
committing the crime. The court explained:
His record, criminal history, I think, speaks volumes, in terms of almost
every one of his prior fifteen adult felony convictions were theft related.
So given the significant disparity between his criminal record and the
criminal record of his co-defendant, I think I’m very comfortable making a finding
by a preponderance of the evidence that he was the leader in the situation, but I will,
of course, preserve your objection for appellate purposes.
Therefore, the trial court assessed 10 points for OV 14. This gave defendant a total OV score of
25 points, and he had a total prior-record-variable score of 205 points. Accordingly, the minimum
sentence guidelines range was 14 to 29 months’ imprisonment. See MCL 777.16z; MCL 777.66.
The trial court imposed a minimum sentence at the very top end of the guidelines range. Had OV
14 been assessed zero points as defendant urged, the guidelines range would have been lowered to
12 to 24 months’ imprisonment. This appeal ensued.
Under the sentencing guidelines, the trial court’s findings of fact are reviewed for clear
error and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430,
438; 835 NW2d 340 (2013); People v Rhodes (On Remand), 305 Mich App 85, 88; 849 NW2d
417 (2014). Clear error is present when the appellate court is left with a firm and definite
conviction that an error occurred. People v Fawaz, 299 Mich App 55, 60; 829 NW2d 259 (2012).
This Court reviews de novo “[w]hether the facts, as found, are adequate to satisfy the scoring
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conditions prescribed by statute . . . .” Hardy, 494 Mich at 438; see also Rhodes, 305 Mich App
at 88. In scoring OVs, a court may consider all record evidence, including the contents of a PSIR,
plea admissions, and testimony presented at a preliminary examination. People v Johnson, 298
Mich App 128, 131; 826 NW2d 170 (2012). “The trial court may rely on reasonable inferences
arising from the record evidence to sustain the scoring of an offense variable.” People v Earl, 297
Mich App 104, 109; 822 NW2d 271 (2012), overruled in part on other grounds by People v White,
501 Mich 160, 164 n 2; 905 NW2d 228 (2017). “[D]ue process bars sentencing courts from finding
by a preponderance of the evidence that a defendant engaged in conduct of which he was
acquitted.” People v Beck, 504 Mich 605, 629; 939 NW2d 213 (2019). When a preserved scoring
error alters the appropriate guidelines range, resentencing is generally required. People v
Francisco, 474 Mich 82, 89-92; 711 NW2d 44 (2006). This Court reviews de novo issues
involving the interpretation of the sentencing guidelines. People v Sours, 315 Mich App 346, 348;
890 NW2d 401 (2016).
For purposes of OV 14, to “lead” means to guide, to show the way, or to direct, and the
sentencing court should take into consideration whether the defendant acted first or gave directions
or whether he or she was a primary causal or coordinating agent of the crime. People v Dickinson,
321 Mich App 1, 22; 909 NW2d 24 (2017). As noted earlier, “[t]he entire criminal transaction
should be considered when scoring” OV 14. MCL 777.44(2)(a). In this case, the reasons given
by the trial court in assessing 10 points for OV 14 had nothing to do with evidence or information
concerning the “criminal transaction.” Instead, the court focused on defendant’s and
codefendant’s criminal histories and the significant disparity in their records, and the probation
agent had noted the felony-versus-misdemeanor nature of the two plea bargains. These reasons,
however, do not demonstrate, nor can one reasonably infer from them, that in this particular
instance defendant was the leader in receiving and concealing the stolen camper. To assess 10
points for OV 14 there needed to be evidence about the criminal transaction itself showing that
defendant guided or directed the crime, that he acted first or gave directions, or that he was the
primary causal agent. Relying on past criminal records to determine who was the leader in
receiving and concealing the stolen camper ultimately constituted mere conjecture and speculation.
In short, we hold that the trial court erred by assessing 10 points for OV 14 and that the proper
score was zero points. Because the error alters the minimum sentence guidelines range,
resentencing is required. See Francisco, 474 Mich at 89-92.1
We reverse and remand for resentencing. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Jane E. Markey
/s/ Michelle M. Rick
1
We note that the prosecutor cites the evidence that defendant was observed towing the camper
into the resident’s backyard. But the trial court made no mention of this evidence in rendering its
scoring decision. Moreover, this evidence, in and of itself, does not suffice to demonstrate that
defendant was the leader in committing the offense.
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