DocketNumber: Docket No. 293746
Citation Numbers: 290 Mich. App. 717
Judges: Hood, Owens, Whitbeck
Filed Date: 11/23/2010
Status: Precedential
Modified Date: 9/9/2022
Defendant, Michael Light, appeals by leave granted his prison sentence imposed after plead
I. BASIC FACTS
A. OVERVIEW
On December 28, 2007, Light approached the Cherry Bend grocery store and stood outside for approximately 20 minutes. After waiting outside, Light entered the store and took a six-pack of beer from the cooler. Light proceeded to the check-out counter and handed the beer to Daniel Plamondon, the store’s owner. Then, Light pulled out a four- or five-inch knife and held it in a stabbing position. While wielding the knife, Light yelled, “[G]ive me your f— ing money.” Plamondon handed Light approximately $300, and Light fled.
Chief Moore responded to the scene and followed Light’s footprints in the fresh snow south to a residence. As Chief Moore approached the residence, he
B. LIGHT’S PLEA AGREEMENT AND SENTENCING
As previously stated, the prosecutor charged Light with armed robbery.
During sentencing, Light’s attorney objected to the scoring of 5 points for sentencing OV 12. The trial court overruled the objection, finding thát Light had committed two or more contemporaneous felonious acts. The trial court used the carrying of a concealed weapon as one of the two contemporaneous felonious criminal acts because of the knife that Light carried and then used to commit the robbery. For the second contemporaneous act, the trial court considered both larceny from a person and larceny in a building. The trial court may have determined that larceny in a building was an appropriate contemporaneous act because it is a cognate lesser offense of robbery. However, the trial court’s statements on the record were unclear regarding which form of larceny it ultimately chose to use for its scoring decision.
A. STANDARD OF REVIEW
When a defendant appeals his or her sentence, we review the trial court’s scoring decision “to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.”
B. THE PLAIN LANGUAGE OF OV 12
Under MCL 777.42, OV 12 establishes the scoring guidelines for the trial court to use “to determine whether [a] defendant engaged in any ‘contemporaneous felonious criminal acts.’ ”
C. INTERPRETING THE LANGUAGE OF OV 12
This Court interprets sentencing guidelines in accordance with the rules of statutory construction.
The primary goal of statutory construction is to give effect to the intent of the Legislature. If the language of the statute is unambiguous, judicial construction is not permitted because the Legislature is presumed to have intended the meaning it plainly expressed. Judicial construction is appropriate, however, if reasonable minds can differ concerning the meaning of a statute. Where ambiguity exists, this Court seeks to effectuate the Legislature’s intent by applying a reasonable construction based on the purpose of the statute and the object sought to be accomplished. “The court must look to the object of the statute, the harm it is designed to remedy, and apply a reasonable construction that best accomplishes the purpose of the statute.” In construing a statute, the statutory provisions must be read in the context of the entire statute in order to produce a harmonious whole; courts must avoid a construction that would render statutory language nugatory.[13 ]
As stated, MCL 777.42 establishes the scoring guidelines to determine a defendant’s OV 12 sentencing score for any “contemporaneous felonious criminal acts.”
D. APPLYING THE LANGUAGE OF OV 12 TO LIGHT’S UNABMED-ROBBERY CONVICTION
In this case, Light pleaded guilty to a charge of “unarmed robbery” under MCL 750.530. The Legislature defined “unarmed robbery” as follows:
*724 el) A person who, in the course of committing a larceny of any money or other property that may be the subject of larceny, uses force or violence against any person who is present, or who assaults or puts the person in fear, is guilty of a felony punishable by imprisonment for not more than 15 years.
(2) As used in this section, “in the course of committing a larceny” includes acts that occur in an attempt to commit the larceny, or during commission of the larceny, or in flight or attempted flight after the commission of the larceny, or in an attempt to retain possession of the property.[21 ]
Neither party disputes that the trial court scored OV 12 on the basis of the sentencing offense of unarmed robbery. Further, neither party disagrees that carrying a concealed weapon constituted one of the two contemporaneous felonious acts needed to score 5 points for OV 12. However, the parties differ in their views about which form of larceny the trial court properly used as the second contemporaneous felonious act, which allowed the trial court to allocate 5 points for OV 12.
Light argues that the trial court erred by allocating 5 points for his OV 12 score because the trial court incorrectly identified larceny from a person as the second separate contemporaneous felonious act. Light further argues that larceny from a person is a necessarily included lesser offense of robbery
In contrast, the prosecution argues that the trial court correctly scored 5 points for OV 12 because larceny in a building is not a necessarily included lesser offense of robbeiy, but rather a cognate offense.
Light is correct that larceny from a person is a necessarily included lesser offense of robbery.
III. CONCLUSION
The trial court erred when it determined that larceny from a person or larceny in a building was a contemporaneous felonious act under MCL 777.42. Because both forms of larceny served as the basis of Light’s sentencing offense, the trial court should not have scored 5 points for Light’s unarmed-robbery conviction under OV 12. However, the parties do not dispute that Light’s act of carrying a concealed weapon provides a proper basis for a contemporaneous felonious criminal act for purposes of scoring OV 12. The act of carrying a concealed weapon occurred contemporaneous with the robbery. Accordingly, the trial court should have assessed only 1 point under MCL 777.42(l)(f) for carrying a concealed weapon. This correction reduces Light’s total OV score from level IV to level III (from 35 points to 31 points), which will change the recommended minimum
Reversed and remanded. We do not retain jurisdiction.
MCL 750.530. The prosecution originally charged Light with armed robbery , MCL 750.529, and notified him that he could be sentenced as a second-offense habitual offender, MCL 769.10, but agreed to dismiss the habitual-offender sentence enhancement notice pursuant to a June 23, 2008 plea agreement.
MCL 777.42.
The prosecutor’s presentence investigation report indicated that two young children were present in the store at the time, although subsequent questioning by the police showed that the children had been oblivious to the events that took place.
See MCL 750.529.
See MCL 769.10.
People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).
People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003); People v Berner, 286 Mich App 26, 31; 777 NW2d 464 (2009).
Bemer, 286 Mich App at 32, quoting MCL 777.42(1).
Id., citing MCL 777.42(l)(g).
Id. (some alteration by Bemer).
MCL 777.42(l)(e).
People v Lyons (After Remand), 222 Mich App 319, 322; 564 NW2d 114 (1997).
McLaughlin, 258 Mich App at 672-673 (citations omitted).
See MCL 777.42(1); Bemer, 286 Mich App at 32.
Bemer, 286 Mich App at 32-33, citing MCL 777.42(2)(a) (emphasis added).
People v McGraw, 484 Mich 120, 125; 771 NW2d 655 (2009), quoting People v Sargent, 481 Mich 346, 349; 750 NW2d 161 (2008) (emphasis added).
MCL 777.42(2)(a)(i).
See United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 14; 795 NW2d 101 (2009) (noting that “[w]hen the Legislature uses different words, the words are generally intended to connote different meanings”).
MCL 777.41(2)(b) (emphasis added).
MCL 777.43(l)(a) through (f) (emphasis added).
MCL 750.530.
People v Adams, 128 Mich App 25, 31; 339 NW2d 687 (1983) (noting that “the larceny which is an element of robbery is a larceny from a person”).
See MCL 777.64.
See also People v Ramsey, 218 Mich App 191, 195; 553 NW2d 360 (1996).
People v Cornell, 466 Mich 335, 356; 646 NW2d 127 (2002) (noting that it is impossible to commit the greater offense without first having committed the included lesser offense).
See People v Stein, 90 Mich App 159, 167; 282 NW2d 269 (1979).
MCL 750.530(2).
See People v Smith, 478 Mich 292, 296, 300-301; 733 NW2d 351 (2007).
See MCL 777.64.
People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).