DocketNumber: Docket No. 302293
Citation Numbers: 295 Mich. App. 529
Judges: Beckering, Owens, Shapiro
Filed Date: 2/28/2012
Status: Precedential
Modified Date: 9/9/2022
We granted defendant’s delayed application for leave to appeal the sentences of imprisonment for 18 to 30 years and 18 to 48 months imposed following his plea-based convictions of armed robbery, MCL 750.529, and felonious assault, MCL 750.82, respectively. The only question is whether the trial court properly assessed 50
Defendant’s conduct was reprehensible, and his actions were undoubtedly designed to cause fear and anxiety in his victims, as is the conduct in all armed robberies. However, because OV 7, by its own terms, is to be scored at 50 points only for conduct “designed to substantially increase the fear and anxiety” of a victim, we conclude that zero points should have been assessed for OV 7. We therefore vacate defendant’s sentences and remand for resentencing.
I. FACTS
Defendant robbed a gas station/party store. He entered the gas station carrying an airsoft
II. ANALYSIS
This Court reviews a trial court’s scoring of the sentencing guidelines to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score. People v Lechleitner, 291 Mich App 56, 62; 804 NW2d 345 (2010). To the extent that a scoring issue calls for statutory interpretation, review is de novo. Id.
MCL 777.37(1)(a) provides that 50 points must be assessed for OV 7 if “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” Defendant argues that the trial court erred by assessing 50 points for OV 7 because his conduct did not fall within the statute.
“Sadism” is defined by the statute as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL 777.37(3). Defendant’s conduct does not meet the definition of “sadism”
Similarly, there is no evidence that defendant used excessive brutality. “Excessive” and “brutality” are not defined in MCL 777.37. Random House Webster’s College Dictionary (2d ed, 1997) defines “excessive” as “going beyond the usual, necessary, or proper limit or degree[.]” “Brutality” is defined as “the quality of being brutal[.]” Id. “Brutal,” in turn, is defined as “savage; cruel; inhuman” or “harsh; severe[.]” Id. Thus, excessive brutality means savagery or cruelty beyond even the “usual” brutality of a crime. Defendant struck each victim once in the head, but there is no evidence that either clerk was injured. This behavior, while certainly illegal and reprehensible, was not savage or inhuman in comparison with behavior that has occurred during other armed robberies or felonious assaults.
The prosecution argues, however, that defendant’s conduct was “designed to substantially increase the fear and anxiety a victim suffered during the offense.” “Substantial” means “of ample or considerable amount, quantity, size, etc.” Id. “Ample,” in turn, is defined as “plentiful^] . . . liberal; copious[.]” Id. Therefore, defendant’s conduct would have substantially increased the victims’ fear only if the conduct was designed to
Cases upholding scores of 50 points for OV 7 are distinguishable because they involve specific acts of sadism, torture, or excessively brutal acts by the defendant. In People v Wilson, 265 Mich App 386, 396-398; 695 NW2d 351 (2005), the defendant was convicted of assault with intent to commit great bodily harm less than murder after inflicting a prolonged and severe beating that left lasting*535 and serious effects. The defendant in that case choked the victim a number of times, cut her, dragged her, and kicked her in the head. After her hospital stay, the victim was in a wheelchair for three weeks and used a cane for another three weeks. In another case in which 50 points were assessed for OV 7, the defendant was convicted of kidnapping, felonious assault, and felony-firearm after he held the victim at gunpoint for nine hours, made her look down the barrel of a gun, repeatedly threatened to kill her and himself, and asked her what her son would feel like when he saw yellow crime tape around his mother’s house. People v Mattoon, 271 Mich App 275, 276; 721 NW2d 269 (2006), and People v Mattoon, unpublished opinion per curiam of the Court of Appeals, issued October 18, 2007 (Docket No. 272549) (after remand). Similarly, in People v Hornsby, 251 Mich App 462, 468-469; 650 NW2d 700 (2002), the defendant pointed a gun at the victim, cocked it, and repeatedly threatened the victim and others in a store. In People v Kegler, 268 Mich App 187, 189-190; 706 NW2d 744 (2005), the defendant removed the victim’s clothes, assisted with carrying him naked outside, and admitted that she wanted to humiliate him by leaving him outside naked. In People v James, 267 Mich App 675, 680; 705 NW2d 724 (2005), the defendant repeatedly stomped on the victim’s face and chest and deprived the victim of oxygen for several minutes, causing him to sustain brain damage and become comatose. And in People v Horn, 279 Mich App 31, 46-48; 755 NW2d 212 (2008), the defendant terrorized and abused his wife with recurring and escalating acts of violence, including threatening to kill her. [Emphasis omitted.]
Further, circumstances inherently present in the crime must be discounted for purposes of scoring an OV Id. at 326. For example, “[transportation to a place of greater danger is appropriately scored under OV 8 [MCL 777.38], but must be given a score of zero points when . . . the sentencing offense is kidnapping.” Id. Armed robbery requires the use of a dangerous weapon during a robbery. MCL 750.529. A robbery occurs when, in the course of a larceny, the defendant “uses force or
While defendant may have used more violence than would be strictly necessary to complete an armed robbery, it cannot be said that his conduct was “designed to substantially increase the fear and anxiety” beyond the fear and anxiety that occurs in most armed robberies. The plain language of OV 7 reveals that it was meant to be scored in particularly egregious cases involving torture, brutality, or similar conduct designed to substantially increase the victim’s fear, not in every case in which some fear-producing action beyond the bare minimum necessary to commit the crime was undertaken.
The trial court erred by assessing 50 points for OV 7. Defendant is entitled to resentencing because the proper guidelines score results in a different recommended minimum-sentence range. People v Francisco, 474 Mich 82, 89-90; 711 NW2d 44 (2006).
Vacated and remanded for resentencing. We do not retain jurisdiction.
An airsoft gun fires small plastic BBs using compressed air as the propellant and is used as a weapon in recreational mock-combat games. See Yao v State, 953 NE2d 1236, 1238-1239 (Ind App, 2011).
The charge of felonious assault resulted from an incident that occurred while defendant and a codefendant fled from the gas station and the codefendant pointed the shotgun at the occupant of a vehicle.
On the count of felonious assault, a score of zero points for OV 7 would result in a recommended minimum-sentence range of 2 to 17 months instead of 5 to 23 months.
This rule is derived from the principle of noscitur a sociis, which holds that “ ‘the meaning of statutory language, plain or not, depends on context.’ ” Griffith, 472 Mich at 533, quoting King v St Vincent’s Hosp, 502 US 215, 221; 112 S Ct 570; 116 L Ed 2d 578 (1991).