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People v. McGraw
Citations: 771 N.W.2d 655; 484 Mich. 120Docket: Docket 132876
Court: Michigan Supreme Court; July 28, 2009; Michigan; State Supreme Court
Original Court Document: View Document
The Michigan Supreme Court addressed the scoring of offense variables in the case of People of the State of Michigan v. Matthew Lloyd McGraw, focusing on whether a defendant's conduct after the commission of an offense can be considered for scoring purposes. The Court clarified that, unless explicitly stated otherwise, conduct occurring post-offense does not relate back to the sentencing offense when scoring offense variables. In this case, McGraw's flight from police after a break-in was deemed an improper basis for scoring offense variable 9 (OV 9), which led to a reversal of the Court of Appeals’ judgment and a remand for resentencing. The facts revealed that McGraw committed multiple break-ins and fled from police after the last offense. He was sentenced based on an improper assessment of OV 9, which assigned points for endangering victims based on his flight from the scene. The sentencing court imposed concurrent terms based on this assessment. McGraw's appeals for resentencing were initially denied, but after further review by the Supreme Court, the decision was overturned. The Court emphasized that offense variables should be scored using an offense-specific approach, considering only conduct directly related to the offense for which the defendant was convicted. The prosecution advocates for a transactional approach to scoring sentencing guidelines, suggesting that the examination of a defendant's conduct should encompass actions beyond those constituting the sentencing offense. This approach aims to interpret the statutory provision for OV 9 harmoniously within the broader statute, focusing on the statute's overall intent. Previous rulings, notably in People v Sargent, established that offense variables are primarily offense-specific, dictated by the sentencing offense itself. The scoring process involves identifying the offense category and its corresponding variables as mandated by MCL 777.21, which details scoring for multiple offenses and addresses habitual offenders. The scoring framework indicates that generally, only conduct directly related to the sentencing offense is relevant unless specified otherwise. Specific statutes, such as MCL 777.44(2)(a) for OV 14 and MCL 777.12 for OV 12 and OV 13, provide exceptions allowing for broader conduct consideration in certain contexts. However, outside of these exceptions, the presumption remains that only conduct related to the offense being scored is considered. While the ruling in Sargent reinforced an offense-specific approach, it left open the question of whether transactional conduct could be included in scoring. The court determined that it was unnecessary to address whether the defendant's actions constituted a single criminal transaction, as it was evident that the defendant's conduct occurred outside the parameters of the sentencing offense. The court emphasized that the Legislature intentionally included language in some offense variables to direct sentencing courts to consider conduct beyond the sentencing offense, but omitted such language in others, notably OV 9. This omission suggests a default position for scoring offense variables based solely on the sentencing offense, thereby avoiding any interpretation that would render parts of the statute redundant or meaningless. The court highlighted that the sentencing guidelines are designed to be offense-specific, as indicated by the detailed structure provided in part 2 of the guidelines (MCL 777.11 to 777.19). The Legislature's meticulous approach implies that if conduct beyond the sentencing offense were to be routinely included in scoring, it would have clearly outlined the scope of that conduct, similar to certain offense variables. The dissenting opinion's reliance on res gestae and prior Court of Appeals decisions is criticized for deviating from the statutory framework established by the Legislature, which explicitly limited the scoring of offense variables to the sentencing offense. In addressing the prosecution's claims regarding the case of People v Morson, the court clarified that its previous ruling did not support the notion that conduct beyond the sentencing offense could influence the scoring of OV 9. The decision in Morson involved the assessment of points for two victims endangered during an armed robbery but did not establish a precedent for considering broader criminal conduct in scoring offense variables. The sentencing court's decision to score OV 9 was upheld, confirming that multiple victims can be counted even if only one was directly robbed, provided others were present and at risk. This principle aligns with the interpretation of MCL 777.1 et seq., which states that offense variables generally pertain to the sentencing offense but can consider transactional conduct to ensure uniformity in sentencing. A trial court may depart from sentencing guidelines if substantial reasons indicate that a sentence within the guidelines is disproportionate to the defendant's actions and criminal history. The prosecution retains the option to charge multiple offenses. In the case at hand, the court assessed 10 points under OV 9 for the defendant's breaking and entering conviction, indicating the presence of two to nine victims. The Court of Appeals affirmed this assessment based on the defendant's flight from the scene, which endangered others when he was pursued by police and crashed his vehicle. The court interpreted that at least two individuals were placed at risk during the incident. Although a 2006 amendment expanded OV 9 to include property loss, it did not apply to this case. The record did not clarify whether the defendant was driving or a passenger, but the assumption was made that he was the driver and that accomplices can be considered victims under OV 9. Conduct beyond the sentencing offense cannot be used to score offense variables, specifically referencing the overruled precedents of People v Cook and Chesebro. These cases, which dealt with judicial rather than statutory sentencing guidelines, are no longer applicable in this context. The Court of Appeals incorrectly considered the entirety of the criminal transaction, including the defendant’s actions after the crime, in scoring OV 9. Offense variables should be assessed based solely on the sentencing offense unless the statute explicitly allows for additional conduct to be included. In this case, OV 9, which concerns the number of victims, must be scored solely on the breaking and entering incident, as no one was endangered during this act, and the defendant's flight from law enforcement occurred after the offense was complete. The prosecution, having dismissed the fleeing and eluding charge, could not resurrect it for sentencing purposes. Thus, the sentencing court should have assigned zero points for OV 9. The Supreme Court reverses the Court of Appeals' judgment and remands for resentencing. A dissenting opinion argues that the defendant waived his challenge to OV 9 and that the sentencing court did not err in its original scoring. The court upheld the finding that two individuals were endangered when the defendant's getaway vehicle crashed into a fence. The majority's introduction of an "elements-only" test for scoring offense variables limits the duration of an offense to its definitional elements, neglecting the res gestae principle, which considers the entire criminal transaction. This new rule restricts sentencing courts from factoring in aggravating circumstances that occur after the offense's elements are satisfied, undermining the assessment of an offense's seriousness. For instance, a defendant convicted of first-degree criminal sexual conduct could not receive additional points for actions occurring post-rape, such as using a knife or inflicting further injuries, which would otherwise reflect the severity of the crime. Similarly, in a murder case, the defendant could not be scored for the psychological harm inflicted on the victim's parents after the murder, as those actions occurred after the crime's elements were completed. Additionally, the concept of waiver is clarified—waiver entails the intentional relinquishment of a known right, while forfeiture involves failing to assert a right timely. In this case, the defense counsel expressed satisfaction with the sentencing guidelines at the hearing, which led to the conclusion that the defendant waived any challenge related to the scoring of OV 9, thus precluding appellate review. The majority's reference to a motion for resentencing as a vehicle for error review misinterprets the waiver-forfeiture distinction, as the alleged error was already waived and could not be revived by subsequent motions. The majority's assertion that the prosecution's failure to raise the issue of the defendant's waiver precludes consideration of it is incorrect. An appellee is not obligated to file a cross-appeal to contest waiver or forfeiture; instead, it is the appellant's duty to include the relevant standard of review in their arguments. Waiver or forfeiture is critical as it impacts both the reviewability and the standard applied to issues on appeal. The majority's stance that an appellee must initiate a cross-appeal to challenge preservation is unsupported by court rules or precedents and could lead to an increase in criminal appeals. Furthermore, this position raises the absurdity of creating an unending cycle of waiver arguments, where both parties may be compelled to contest each other's waivers. The majority's arbitrary assignment of responsibility distorts the conventional appellate burden. Additionally, it is illogical for the majority to reverse a judgment based on an alleged error while neglecting to determine if that error was, in fact, waived. The majority's citation of Mitcham v Detroit to support the notion that an appellee's failure to address an issue constitutes abandonment is misplaced, as that case pertained to appellants in civil matters, and the court has previously ruled that an appellee's lack of a responsive brief does not indicate a confession of error. Lastly, reliance on Gross v Gen Motors Corp and Dwelley v Tom McDonnell to assert that an appellee is bound to their trial theory is erroneous because these cases do not preclude appellate courts from addressing unresponded issues by an appellee. Thus, an appellee's failure to fully address an issue in their brief does not equate to a confession of error. The majority opinion effectively overrules the precedent set in Smith without explicit acknowledgment, introducing a new "appellee waiver" rule that distorts existing case law and could have significant negative effects on the state's criminal justice system, especially given current budget constraints that lead to the prosecution not filing briefs in 19% of criminal appeals. This new rule results in automatic reversals for a substantial number of cases, risking the reversal of valid convictions and wasting law enforcement and judicial resources. A dissenting opinion in Smith highlighted this concern, noting that such reversals would be counterproductive. The appellate court has a duty to apply legal principles correctly, even if lower courts have not, and can affirm a lower court's decision if the correct outcome is reached, despite incorrect reasoning. The majority fails to apply established waiver principles correctly and neglects to analyze the ineffective assistance of counsel claim under the Strickland standard, which requires defendants to demonstrate that their counsel’s performance was deficient and prejudicial. The majority neither explains its reasoning on this issue nor addresses whether the defendant has met the burden to establish ineffective assistance. Furthermore, the defendant's counsel's agreement with the scoring of Offense Variable 9 (OV 9) was not an error, as the law allows consideration of a defendant’s conduct surrounding the offense when determining sentencing guidelines. Counsel at sentencing could not foresee the change in law that would restrict the scoring of offense variables to the definitional elements of the sentencing offense. The inability to predict such a legal shift does not equate to ineffective assistance of counsel, as established in prior cases (Mullican v United States, Brunson v Higgins, and Lucas v O’Dea). Courts rarely find ineffective assistance based solely on an attorney's failure to make objections that would likely be overruled according to then-existing law. Consequently, counsel's adherence to established South Carolina criminal law, even when it faced scrutiny at the Supreme Court level, does not demonstrate constitutionally deficient performance. The majority’s ruling asserts that a defendant’s conduct after the completion of an offense cannot be factored into scoring offense variables unless explicitly stated by statute. However, this analysis neglects to define when an offense is considered complete and imposes an arbitrary limitation on sentencing courts. The majority does not provide justification for this new elements-only rule, which lacks support from Michigan caselaw. Previous rulings, such as Chesebro, clarified that offense variables should be scored based solely on the specific criminal transaction underlying the conviction unless otherwise directed by statute. This principle was further examined in cases like People v Morson and People v Sargent, illustrating the distinction between actions taken during and after the commission of an offense. The Court determined that the sentencing court correctly assessed ten points for Offense Variable (OV) 9 based on two victims, Deborah Sevakis and James Bish. The Court of Appeals had previously reversed this decision, asserting that only Sevakis was the victim of the armed robbery. However, the current ruling disagrees with that conclusion, emphasizing that the statute requires counting “each person who was placed in danger of injury or loss of life” as a victim. Although Sevakis was the only person robbed, Bish was deemed a victim as he was nearby and responded to Sevakis's call for help, thus placed in danger during the incident. The Court referenced Justice Young’s concurrence in a related case, Morson, supporting the interpretation that any person endangered during the commission of a crime qualifies as a victim under OV 9. Additionally, the Court distinguished this case from Sargent, where it remanded for resentencing because the abuse of a complainant's sister was not part of the sentencing offense transaction, emphasizing that only conduct relating to the offense should be considered in scoring offense variables. The ruling reaffirms that for scoring OV 9, only individuals endangered at the time of the crime (or during the same transaction) should be included as victims. The jury did not convict the defendant of abusing the complainant’s sister, which was related to the same incident as the abuse of the 13-year-old complainant. Consequently, zero points were assessed for Offense Variable 9 (OV 9). Court of Appeals case law indicates that the entire criminal transaction can be considered when scoring offense variables. In the case of Cook, the defendant contested the assessment of 10 points under Offense Variable 19 (OV 19) for interference with justice, arguing his flight from the police occurred separate from the assault. The court rejected this argument, stating that the legislature did not prohibit considering conduct across different offenses when they form a single continuum of events. Thus, the trial court correctly scored 10 points under OV 19 for the assault conviction. Additionally, past rulings support that sentencing courts may assess the broader criminal transaction when scoring offense variables. The res gestae principle is integral to this reasoning, as illustrated in People v. Gillis, where actions beyond the core elements of a crime, but still part of the event's continuum, were deemed relevant. In Gillis, it was determined that a defendant remains in the act of committing the underlying felony until the escape is completed. Thus, escape is considered a crucial part of the execution of the felony, indicating that the felony is not fully completed until the perpetrator has successfully evaded law enforcement. A murder occurring during an escape from a felony is classified as committed “in the perpetration of” that felony, as the felonious act remains incomplete during the attempted escape. The term “perpetration” encompasses not only the definitional elements of the underlying felony but also acts necessary to complete it, including actions taken after the felony's commission during escape attempts. For instance, a burglar continues to commit burglary while removing stolen goods and securing them. In robbery cases, a homicide may still fall under first-degree murder even if it occurs after the immediate act of theft, as long as the robber is in the process of escaping with the stolen items. The concept of res gestae establishes that a murder taking place within the “unbroken chain of events” surrounding the felony is considered part of that felony. Factors such as time, place, causation, and continuity of actions are crucial in determining if the murder occurred in connection with the underlying felony. The res gestae principle is not restricted to felony murder cases but is fundamental in the legal framework to describe the elements and pertinent facts of any offense. This principle allows for the inclusion of facts and circumstances that illustrate the main crime, although the prosecutor must avoid using evidence to create prejudicial inferences. The determination of what constitutes res gestae should be case-specific, and there is no rigid timeframe for its applicability. The author argues against creating a new standard for defining the completion of an offense in the context of sentencing variables, emphasizing the importance of established caselaw on res gestae. A sentencing court should consider the entirety of a defendant’s conduct during an ongoing felony when scoring offense variables, rather than limiting its analysis to the elements of the crime. The court has already reviewed the complete context of the crime during the trial, which includes both aggravating and mitigating factors relevant to sentencing. The majority's approach incorrectly suggests that the criminal offense begins and ends at the completion of its elements, thus disregarding any additional conduct related to the offense, such as flight from the scene. This interpretation misapplies MCL 769.31(d), which defines "offense characteristics" to include both the elements of the crime and relevant aggravating or mitigating factors. The majority fails to justify ignoring factors like a defendant's escape attempt, even if not separately charged, and incorrectly implies that only convictions can be considered aggravating. However, the law allows for the consideration of other contemporaneous offenses as aggravating factors. While some offense variable provisions require consideration of non-offense-specific facts, this should not prevent the overall criminal transaction from being evaluated in scoring offense variables. The language regarding the "entire criminal transaction" in OV 14 highlights the need for broader consideration, particularly in multiple offender cases, rather than restricting the analysis of the entire criminal context. The majority's elements-only test undermines the sentencing guidelines' objective of fostering uniformity and consistency in sentencing, where deviation from the recommended minimum sentence range is intended to be exceptional. The majority suggests that trial courts can consider factors outside the offense's elements when departing from the guidelines, a position not supported by state law. Prior decisions, such as People v Smith and People v Babcock, emphasize that harsher penalties correspond with more severe offenses and repeat offenders. The majority's current stance contradicts its previous rulings in Smith without providing justification, potentially leading to increased sentencing appeals. In the case at hand, the defendant was correctly assessed 10 points for OV 9. He argued that his accomplices should not be considered victims for scoring purposes, but MCL 777.39(2)(a) includes anyone placed in danger, which applies to the accomplices involved in a car crash during a police chase. The defendant’s claim of not being the driver is countered by the officer's observation of a person with light hair in the vehicle, which could correspond to the defendant's red hair. His involvement in the escape attempt cannot exempt him from responsibility for the resulting crash. Ultimately, the judgment of the Court of Appeals should be affirmed, as the defendant waived his claim regarding OV 9 scoring by conceding its correctness at sentencing. There was no ineffective assistance of counsel in this concession, given the relevant case law at that time. Furthermore, the majority’s new rule for scoring offense variables lacks foundation in existing case law, as the Court of Appeals appropriately considered the full context of the offense in its scoring decision.