People v. McGraw

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 28, 2009

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 132876

MATTHEW LLOYD McGRAW,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

KELLY, C.J.

This case involves further analysis of the issue presented in People v

Sargent.1 There we held that offense variable (OV) 9 in the sentencing guidelines2

cannot be scored using uncharged acts that did not occur during the same criminal

transaction as the sentencing offense. Today we decide whether the offense

variables should be scored solely on the basis of conduct occurring during the

sentencing offense3 or also using conduct occurring afterward.

1
People v Sargent, 481 Mich 346; 750 NW2d 161 (2008).
2
MCL 777.1 et seq.
3
The sentencing offense is the crime of which the defendant has been
convicted and for which he or she is being sentenced.
 We hold that a defendant’s conduct after an offense is completed does not

relate back to the sentencing offense for purposes of scoring offense variables

unless a variable specifically instructs otherwise. Therefore, in this case,

defendant’s flight from the police after breaking and entering a building was not a

permissible basis for scoring OV 9. Accordingly, we reverse the judgment of the

Court of Appeals and remand this case to the circuit court for resentencing.

FACTS AND PROCEDURE

Defendant broke into a general store in Marion Township on June 28, 2002,

broke into an audio store on July 20, 2002, and then broke into the same general

store again on January 5, 2003. No one was in the stores during the break-ins.

During the January 5 incident, a witness called the police after seeing defendant

and two accomplices loading stolen goods into a car. After defendant and his

accomplices left the scene of the crime, a police officer saw the getaway car

traveling on the road and pursued it. The chase ended when the vehicle entered a

yard and crashed into a chain-link fence. The occupants fled on foot, but

defendant was captured.

Defendant pleaded guilty to three counts of breaking and entering a

building with intent to commit larceny4 in exchange for the dismissal of other

charges, including fleeing and eluding the police.5 In scoring the offense

4
MCL 750.110.
5
MCL 750.479a(3).

2
variables, the sentencing court assessed 10 points under OV 9 because it found

that defendant had placed at least two victims in danger. The court stated that it

would sentence defendant within the guidelines recommendation and imposed

concurrent prison terms of 9 to 30 years, 6 to 30 years, and 6 to 30 years. The

nine-year sentence resulted from the assessment of 10 points under OV 9 for

fleeing from the police after the January 5 break-in.6

Defendant’s timely request for the appointment of appellate counsel was

denied, as was his timely pro se motion for resentencing challenging the scoring of

OV 9. The Court of Appeals denied defendant’s pro se application for leave to

appeal for lack of merit, but this Court remanded the case to the Court of Appeals

for consideration as on leave granted.7

The Court of Appeals affirmed defendant’s conviction, concluding that the

record supported the assessment of 10 points under OV 9 because there were two

to nine victims.8 We granted defendant’s application for leave to appeal.9

6
Had no points been assessed under OV 9, the guidelines minimum
sentence range would have been 19 to 76 months, and defendant’s 9-year sentence
would have exceeded the recommended sentencing range.
7
People v McGraw, 473 Mich 877 (2005).
8
People v McGraw, unpublished opinion per curiam, issued November 16,
2006 (Docket No. 264052); 2006 WL 3334585.
9
People v McGraw, 483 Mich 876 (2009).

3
 THE PROPER APPROACH TO SCORING OFFENSE VARIABLES

The interpretation and application of the legislative sentencing guidelines,

MCL 777.1 et seq. involve legal questions that this Court reviews de novo.10

We are called on to provide further detail delineating the scope of conduct

that sentencing courts should consider when scoring the offense variables of the

statutory sentencing guidelines. Defendant argues that the variables are to be

scored using an offense-specific approach. Under this approach, only conduct

occurring during the offense of which the defendant was convicted may be

considered. The prosecution, on the other hand, argues that the guidelines must be

scored using a transactional approach. Under this approach, a continuum of the

defendant’s conduct is examined, which can extend far beyond the acts that satisfy

the elements of the sentencing offense.

In analyzing this scoring issue, we read the statutory provision for OV 9 in

the context of the entire statute “so as to produce, if possible, a harmonious and

consistent enactment as a whole.”11 The fair and natural import of the provision

governs, considering the subject matter of the entire statute.12

10
People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
11
Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922).
12
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).

4
 We addressed what conduct the sentencing court should consider in People

v Sargent.13 We explained that “the offense 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.”14 We stated that usually “only

conduct ‘relating to the offense’ may be taken into consideration when scoring the

offense variables.”15

Our determination about how offense variables should be scored was based

on a reading of the sentencing guidelines statutes as a whole. We relied on the

Legislature’s use of the terms “the offense” and “each offense” in MCL 777.21:

MCL 777.21 instructs us on how to score the sentencing
guidelines. MCL 777.21(1)(a) instructs us to “[f]ind the offense
category for the offense . . . [and] determine the offense variables to
be scored for that offense category . . . .” (Emphasis added.) MCL
777.21(2) instructs us to “score each offense” if “the defendant was
convicted of multiple offenses . . . .” (Emphasis added.) MCL
777.21(3), which pertains to habitual offenders, instructs us to
“determine the . . . offense variable level . . . based on the underlying
offense,” and then to increase the upper limit of the recommended
minimum sentence range as indicated. (Emphasis added.) This
language indicates that the offense variables are generally offense
specific.[16]

13
People v Sargent, 481 Mich 346; 750 NW2d 161 (2008).
14
Id. at 348.
15
Id. at 349.
16
Id. at 348.

5
 We found it telling in Sargent that the individual offense variables presume

that the sentencing offense is the reference point for scoring purposes. This is

because only when conduct occurring after commission of the sentencing offense

is to be considered in scoring do the variables spell out the scope of that conduct:

That the general rule is that the relevant factors are those
relating to the offense being scored is further supported by the fact
that the statutes for some offense variables specifically provide
otherwise. For instance, MCL 777.44(2)(a) provides that when
scoring OV 14 (whether the offender was a leader in a multiple-
offender situation), “the entire criminal transaction should be
considered . . . .” For other offense variables, the Legislature
unambiguously made it known when behavior outside the offense
being scored is to be taken into account. OV 12 (contemporaneous
felonious acts), for example, applies to acts that occurred within 24
hours of the sentencing offense and have not resulted in separate
convictions. MCL 777.42(2)(a). OV 13 (continuing pattern of
criminal behavior) explicitly permits scoring for “all crimes within a
5-year period, including the sentencing offense,” regardless of
whether they resulted in convictions. MCL 777.43(2)(a). OV 16
(property obtained, damaged, lost, or destroyed) provides that in
“multiple offender or victim cases, the appropriate points may be
determined by adding together the aggregate value of the property
involved, including property involved in uncharged offenses or
charges dismissed under a plea agreement.” MCL 777.46(2)(a).
Finally, OV 8 (asportation or captivity of victim) specifically
focuses on conduct “beyond the time necessary to commit the
offense.” MCL 777.38(1)(a). That the Legislature has explicitly
stated that conduct not related to the offense being scored can be
considered when scoring some offense variables strengthens our
conclusion that, unless stated otherwise, only conduct that relates to
the offense being scored may be considered.[17]

17
Id. at 349-350. Although Sargent held that the Legislature intended an
offense-specific view to scoring the offense variables, we did not definitively
answer the question whether transactional conduct may be considered. It was not
necessary to reach that question to resolve the case because it was clear that the
defendant’s conduct did not occur during the same criminal transaction. The
conduct in question was remote from the sentencing offense. Id. at 350-351.

6
 As we explained in Sargent, it is telling that the Legislature included

language in particular variables explicitly instructing the sentencing court to

consider factors or conduct beyond the sentencing offense itself; however, it

included no such language in other variables, such as OV 9. If the Legislature had

intended a court scoring the sentencing guidelines to use a transactional approach,

much of the language in some of the offense variables would have been

surplusage. In interpreting a statute, we avoid a construction that would render

part of the statute surplusage or nugatory.18

If we read the sentencing guidelines as offense-specific by default, the

language defining the scope of conduct for particular offense variables is not

surplusage. For example, points are assessed under OV 14 if the offender was a

leader in a multiple-offender situation. The statute provides that the “entire

criminal transaction should be considered” when scoring this offense variable.19

When we acknowledge that the default procedure is to score the offense variables

using an offense-specific approach, the instruction for OV 14 takes on

significance. It requires OV 14 to be scored differently from most. Points must be

assessed for conduct extending beyond the sentencing offense. The Legislature’s

wording of the offense variable statutes implies a default rule that the variables are

to be scored considering the sentencing offense alone. It is only when conduct

18
Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
19
MCL 777.44(2)(a).

7
beyond the sentencing offense is to be considered that the variables address the

scope of that conduct.

Furthermore, the sentencing guidelines set forth a comprehensive, detailed

scheme for scoring. Every offense to which the guidelines apply is listed in a

rather voluminous part 2, comprising MCL 777.11 through 777.19.20 When

providing rules for guidelines scoring, the Legislature took pains to set forth step-

by-step instructions, pointing with particularity to where one must look to make

the necessary calculations. Given the Legislature’s attention to detail, we do not

believe that it intended to deviate from what otherwise appears to be an offense-

specific orientation. If assessing points for conduct beyond the sentencing offense

were to be the norm, the Legislature would have delineated the scope of that

conduct, as it did with several specific offense variables.21

20
See MCL 777.21(1).
21
The dissent claims that we fail to explain on what authority we limit the
scoring for offense variables to the sentencing offense. It was the Legislature, not
we, that drafted and enacted the detailed and complex sentencing scheme. It was
the Legislature that chose to limit the scoring for offense variables to the
sentencing offense. The dissent loses sight of the most important piece of the
puzzle: the statute. Instead, it turns to res gestae and Court of Appeals decisions to
support its position, one of which did not even involve the statutory sentencing
guidelines, but instead involved the old judicial sentencing guidelines. See People
v Chesebro, 206 Mich App 468; 522 NW2d 677 (1994). Furthermore, the dissent
rests its res gestae argument on People v Gillis, 474 Mich 105; 712 NW2d 419
(2006), which interpreted the felony-murder statute, quite a different statute from
the sentencing guidelines statute. When the smoke from the dissent clears, one
can see that its arguments are far from the mark.

8
 The prosecution argues that our decision in People v Morson22 reflected our

belief that the Legislature intended sentencing courts to consider a defendant’s

entire criminal transaction when scoring the variables. We disagree. We never

held in Morson that conduct beyond the sentencing offense can be a basis for

scoring OV 9. There, 10 points were assessed under OV 9 because the defendant

endangered two victims; the sentencing offense was armed robbery.23 The

defendant’s accomplice robbed a woman of her purse at gunpoint.24 The

sentencing court concluded that there were two “victims” for purposes of OV 9:

the woman who was robbed and another man standing nearby who was shot by the

perpetrator.25

We concluded that the sentencing court did not err by finding that the

person near the woman when the perpetrator stole her purse was “placed in danger

of injury or loss of life” by the armed robbery.26 Therefore, he was a victim under

OV 9.27

22
People v Morson, 471 Mich 248; 685 NW2d 203 (2004).
23
Id. at 254.
24
Id. at 253.
25
Id. at 253, 261.
26
See MCL 777.39(2)(a), as added by 1998 PA 317, which is also the
version of the statute applicable in this case.
27
Id. at 262.

9
 Our decision in Morson did not delineate the scope of conduct to be

considered in scoring offense variables.28 It simply held that the sentencing court

did not err in scoring OV 9 under the particular facts of that case. As we

explained in Sargent, “in a robbery, the defendant may have robbed only one

victim, but scoring OV 9 for multiple victims may nevertheless be appropriate if

there were other individuals present at the scene of the robbery who were placed in

danger of injury or loss of life.”29 That is precisely what this Court held had

happened in Morson.

Reading the provisions of MCL 777.1 et seq. in harmony suggests that the

offense variables are scored by reference only to the sentencing offense, except

where specifically provided otherwise.

This does not mean that transactional conduct may never influence a

defendant’s sentence. Such a result would frustrate the Legislature’s intention of

having the guidelines promote uniformity in sentencing. Nothing precludes the

sentencing court from considering transactional conduct when deciding what

sentence to impose within the appropriate guidelines range and whether to depart

from the guidelines recommendation. As this Court explained in People v

Babcock,

28
Morson explicitly avoided this question because there were three
competing views advocated by three concurring and dissenting justices.
29
Sargent, 481 Mich at 351 n 2.

10
 in considering whether to depart from the guidelines, the trial court
must ascertain whether taking into account an allegedly substantial
and compelling reason would contribute to a more proportionate
criminal sentence than is available within the guidelines range. In
other words, if there are substantial and compelling reasons that lead
the trial court to believe that a sentence within the guidelines range
is not proportionate to the seriousness of the defendant’s conduct
and to the seriousness of his criminal history, the trial court should
depart from the guidelines. [30]

In addition, of course, the prosecution is always free to charge a defendant

with multiple offenses if they exist, rather than a single offense. The defendant

then would be sentenced for all offenses for which a conviction was obtained.31

30
People v Babcock, 469 Mich 247, 264; 666 NW2d 231 (2003). This
Court has further recognized that conduct beyond the sentencing offense can be
considered for purposes of departing from the guidelines. See, for example,
People v Price, 477 Mich 1; 723 NW2d 201 (2006). Price observed that, although
foreign convictions cannot be considered under prior record variable 1, and prior
offenses not occurring within five years of the sentencing offense cannot be
considered under OV 13, “they can, under appropriate circumstances, give rise to
a substantial and compelling reason to justify a departure from the guidelines
range . . . .” Id. at 5 & n 3 The dissent’s “sky is falling” prophecy for the
sentencing scheme is unfounded; contrary to the dissent’s contention, post at 20,
our reasoning is, in fact, supported “by the law of this state.” Also contrary to the
dissent’s contention, post at 21, we are not suggesting that “sentencing courts
should depart freely from the guidelines . . . .” To the contrary, we are suggesting
that a subsequent criminal offense may rise to the level of a substantial and
compelling reason that justifies a departure from the sentencing guidelines. To the
extent that it does, consistently with Babcock and People v Smith, 482 Mich 292;
754 NW2d 284 (2008), it can certainly be taken into consideration by the
sentencing court.
31
Therefore, with regard to the dissent’s hypothetical examples, post at 2-3,
the prosecution could charge the defendant with the subsequently committed
offenses. The defendant could be charged for felonious assault, MCL 750.82, in
the first hypothetical and mutilation of a dead body, MCL 750.160, in the second.
Alternatively, the sentencing court could consider the subsequently committed
offenses and the aggravating circumstances at sentencing. For example, it could
consider the defendant’s sending the photographs to the victim’s family in

11
Our decision today “not only respects the defendant’s right to be sentenced on the

basis of law, but it also respects the trial court’s interest in having defendant serve

the sentence that it truly intends.”32

THE PROPER SCORING OF OV 9 IN THIS CASE

A defendant is entitled to be sentenced according to accurately scored

guidelines and on the basis of accurate information.33 A sentence is invalid when

a sentencing court relies on an inappropriate guidelines range.34 “[A] sentence that

is outside the appropriate guidelines sentence range, for whatever reason, is

appealable regardless of whether the issue was raised at sentencing, in a motion

for resentencing, or in a motion to remand.”35 However, in this case, the issue was

raised in a motion for resentencing. 36

determining what sentence within the guidelines range to impose or whether to
depart from the guidelines recommendation.
32
People v Francisco, 474 Mich 82, 92; 711 NW2d 44 (2006).
33
Id. at 88-89.
34
Id. at 89.
35
People v Kimble, 470 Mich 305, 310; 684 NW2d 669 (2004).
36
The dissent contends that the defendant waived any sentencing error.
However, this theory was never raised by the prosecution. Failure to brief an issue
on appeal constitutes abandonment. Mitcham v Detroit, 355 Mich 182, 203; 94
NW2d 388 (1959). “[A] party is bound to the theory on which the cause was
prosecuted or defended in the court below.” Gross v Gen Motors Corp, 448 Mich
147, 162 n 8; 528 NW2d 707 (1995); see also Dwelley v Tom McDonnell, Inc, 334
Mich 229, 233; 54 NW2d 217 (1952). Because the prosecution failed to raise the
issue of defendant’s waiver, we need not consider it. Because we simply do not
consider the prosecution’s waiver argument, contrary to the dissent’s contention,
post at 4, we do not “creat[e] a new ‘revival of waived errors’ rule . . . .” That is,

12
 The sentencing court assessed 10 points under OV 9 for defendant’s

breaking and entering conviction resulting from the January 5, 2003, offense. This

means that it determined there were two to nine victims.37 At the time of

we do not conclude that defendant’s filing of a motion for resentencing would
“revive” an issue that the defendant had, indeed, already expressly waived. We
are also not suggesting that the prosecution’s failure to raise an issue constitutes a
“confession of substantive error,” post at 6-7. Thus, we are not by any stretch of
the imagination overruling People v Smith, 439 Mich 954 (1992), and we are not
creating any “automatic rule of reversal,” post at 7. In addition, contrary to the
dissent’s assertion, post at 4-5, we do not contend that an appellee is required to
file a cross-appeal to raise a waiver argument. We simply conclude that an
appellee should at some point actually raise the waiver argument. And if he or she
does not do so, this Court may, although it is not required to, choose not to raise
and address the argument on its own. This is hardly a “novel view.” See, e.g.,
People v Hamacher, 432 Mich 157, 168; 438 NW2d 43 (1989), which refused to
address the prosecution’s waiver argument because the “prosecutor did not raise
the waiver issue . . . until he filed his brief in this Court,” and People v Oliver, 417
Mich 366, 386 n 17; 338 NW2d 167 (1983), which refused to address the
prosecution’s harmless error argument because the prosecution failed to raise this
issue below. Indeed, the dissent’s view that whether a defendant has waived an
issue “must be” considered by an appellate court, even if the prosecution has not
raised waiver, is subject to question. Notably, the dissent cites only a short order
of this Court in support of this proposition. Smith, 439 Mich at 954. But in Smith,
this Court took issue with the Court of Appeals holding that failure to file a
responsive brief “constitutes a confession of error.” See People v Smith, 190 Mich
App 352, 356; 475 NW2d 875 (1991), vacated in part 439 Mich 954 (1992). In
the present case, the waiver issue was not only never raised below, it was never
raised before us. Finally, to answer the dissent’s question, see post at 5, defendant
had no reason to make the argument that the prosecution failed to raise the waiver
issue. The prosecution never raised the waiver issue in the first place; it is only
this Court in a dissent that has raised it. Because the prosecution failed to raise the
waiver issue, there is no need for us to address whether defendant’s counsel was
ineffective.
37
MCL 777.39(1)(c).

13
defendant’s offense, OV 9 instructed the court to “[c]ount each person who was

placed in danger of injury or loss of life as a victim.”38

The Court of Appeals concluded that assessing 10 points under OV 9 was

proper because of defendant’s conduct after the breaking and entering had been

completed. Specifically, the Court of Appeals upheld the OV 9 score because “in

leaving the scene of the crime, defendant was pursued by a police officer for

whom he had failed to stop.[39] He ultimately crashed his car,[40] and he and the

two other occupants ran off.”41 The Court decided that defendant’s postoffense

conduct supported the scoring of OV 9 because “two or more persons were placed

in danger of injury during the criminal transaction.”42

38
MCL 777.39(2)(a). The statute was amended in 2006 to include property
loss as well. However, this amendment has no effect on this case.
39
The record indicated that defendant was not pursued from the scene of
the crime. The police officer spotted the getaway vehicle on the road away from
the crime site.
40
From the record, it is unclear if defendant was the driver or merely a
passenger.
41
McGraw, unpublished opinion at 2-3; 2006 WL 3334585, at *2.
42
Id. at 3; 2006 WL 3334585, at *2 (emphasis added). The Court of
Appeals opinion assumed that defendant was the driver of the vehicle and that an
accomplice to a crime is a “victim” under OV 9. It relied on People v Cook, 254
Mich App 635; 658 NW2d 184 (2003), and Chesebro for the proposition that
conduct beyond the sentencing offense can be used to score the offense variables.
Chesebro involved the judicial sentencing guidelines, not the statutory sentencing
guidelines that we interpret today. Furthermore, both of those cases were decided
without the benefit of our decisions in Sargent and Morson. They are overruled
insofar as they stand for the proposition that offense variables can be scored using
conduct beyond the sentencing offense.

14
 We conclude that the Court of Appeals erred by considering the entire

criminal transaction and using defendant’s conduct after the crime was completed

as the basis for scoring OV 9. Offense variables must be scored giving

consideration to the sentencing offense alone, unless otherwise provided in the

particular variable.43 OV 9 does not provide for consideration of conduct after

43
MCL 769.31 provides a set of definitions for use “in this section and
[MCL 769.34],” which deals with sentencing departures. MCL 769.31(d)
provides:

“Offense characteristics” means the elements of the crime and
the aggravating and mitigating factors relating to the offense that the
legislature determines are appropriate. For purposes of this
subdivision, an offense described in section 33b of the corrections
code of 1953, 1953 PA 232, MCL 791.233b, that resulted in a
conviction and that arose out of the same transaction as the offense
for which the sentencing guidelines are being scored shall be
considered as an aggravating factor.

The dissent argues that MCL 769.31(d) permits a sentencing court to
consider offenses that are not listed in MCL 791.233b or that did not result in a
conviction. This is inconsistent with the well-established legal doctrine expressio
unius est exclusio alterius (“the expression of one thing is the exclusion of
another”). Miller v Allstate Ins Co, 481 Mich 601, 611; 751 NW2d 463 (2008).

Th[is] maxim is a rule of construction that is a product of
logic and common sense. Feld v Robert & Charles Beauty Salon,
435 Mich 352, 362; 459 NW2d 279 (1990), quoting 2A Sands,
Sutherland Statutory Construction (4th ed), § 47.24, at 203. This
Court long ago stated that no maxim is more uniformly used to
properly construe statutes. [Hoerstman Gen Contracting, Inc v
Hahn, 474 Mich 66, 74-75; 711 NW2d 340 (2006).]

Even assuming that MCL 769.31(d) applies to scoring offense variables because it
states that offenses listed in MCL 791.233b that resulted in a conviction can be
considered, the dissent’s argument fails. This is because the natural implication of
that assumption is that offenses not listed or that did not result in a conviction
cannot be considered. In any event, we need not decide whether a sentencing

15
completion of the sentencing offense. Therefore, it must be scored in this case

solely on the basis of defendant’s conduct during the breaking and entering. If the

prosecution had wanted defendant to be punished for fleeing and eluding, it should

not have dismissed the fleeing and eluding charge. It would be fundamentally

unfair to allow the prosecution to drop the fleeing and eluding charge while

brokering a plea bargain, then resurrect it at sentencing in another form.

When we consider only the breaking and entering, it is apparent that no one

was placed in danger of injury or loss of life. No one was present in the general

store or anywhere near the defendant when he broke into the building.44 Even

under the current version of OV 9, which allows consideration of property loss,

the owner of the general store would be the only victim. Defendant’s flight from

the police occurred after the offense was completed for purposes of scoring the

sentencing guidelines; hence, it cannot be considered in scoring OV 9.45

court can consider listed offenses resulting in conviction that arose out of the same
transaction as the sentencing offense. This is because fleeing and eluding is not a
listed offense, and defendant was never convicted of fleeing and eluding.
Consequently, contrary to what the dissent asserts, post at 18-19, there is no need
for us to decide whether defendant’s fleeing and eluding constituted an
“aggravating . . . factor[] relating to the offense” under MCL 769.31(d).
44
Cf. Morson, 471 Mich at 262-263, which held that there were two
“victims” under OV 9 when two people were present at the scene of the sentencing
offense and were placed in danger.
45
There is no need for us to determine precisely when the breaking and
entering offense was completed for purposes of scoring the sentencing guidelines
in this case; it is clear that defendant’s flight from the police and the subsequent
events involved here were far beyond and removed from the sentencing offense.

16
Defendant did not place two to nine victims in danger of injury or loss of life.

Therefore, no points should have been assessed for OV 9.46

CONCLUSION

Offense variables are properly scored by reference only to the sentencing

offense except when the language of a particular offense variable statute

specifically provides otherwise. The language of the statute for OV 9 does not so

provide.

In this case, the sentencing court scored OV 9 by including defendant’s

conduct in fleeing from the police after his offense of breaking into and entering

an unoccupied building was completed. His flight from the police should not have

been used in scoring OV 9. The sentencing court should have assessed zero points

for OV 9 because no one was placed in danger during the breaking and entering.

Accordingly, we reverse the judgment of the Court of Appeals and remand

the case to the circuit court for resentencing.

Marilyn Kelly
Michael F. Cavanagh
Stephen J. Markman
Diane M. Hathaway

46
Defendant also argues that OV 9 was improperly scored at 10 points
because (1) accomplices to the sentencing crime are not “victims” for purposes of
scoring OV 9 and (2) there was insufficient evidence that he was the driver of the
vehicle that fled the police and crashed into the chain-link fence. We need not
address these issues because they pertain to conduct committed after the breaking
and entering was completed and for which defendant cannot have points assessed
under OV 9.

17
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 132876

MATTHEW LLOYD McGRAW,

Defendant-Appellant.

CORRIGAN, J. (dissenting).

The majority holds that the sentencing court erred by scoring 10 points for

offense variable (OV) 9 (number of victims), MCL 777.39, because the collision

of defendant’s getaway vehicle into a fence during a police chase occurred after

the definitional elements of his offense, breaking and entering a building with

intent to commit larceny, MCL 750.110, were completed. The majority thus

reverses the judgment of the Court of Appeals and remands the case for

resentencing.

I respectfully dissent for three reasons:

(1) Defendant waived his challenge to the scoring of OV 9 when his

attorney stated at sentencing that the guidelines minimum sentence ranges for his

offenses “appear to be correct.”
 (2) Defense counsel was not ineffective in agreeing with the guidelines

calculations because the caselaw in effect at the time of sentencing supported the

OV 9 score.

(3) In any event, the sentencing court did not err in scoring OV 9. The

record supported the court’s finding that two persons were placed in danger of

injury when defendant’s getaway vehicle crashed into a fence. In prohibiting

consideration of defendant’s escape attempt, the majority invents a new

“elements-only” test for scoring the offense variables. This new rule artificially

confines the duration of an offense to its definitional elements for the purpose of

sentencing. This unprecedented approach to scoring the sentencing guidelines

disregards the well-established res gestae principle that looks to the entire

transaction or uninterrupted chain of events surrounding the commission of an

offense.

The practical consequences of this new rule should not be underestimated.

The majority today severely impairs the ability of sentencing courts to assess the

seriousness of an offense when scoring the offense variables. No longer will a

court ever be able to consider aggravating facts and circumstances that occur after

the elements of the offense have been met.

Consider, for example, a defendant who breaks into a woman’s home, rapes

her, and then, immediately after the rape, severely beats her and threatens her with

a knife he found in her home. The defendant is convicted of first-degree criminal

sexual conduct. Under today’s decision, the defendant cannot be assessed any

2
points under OV 1, MCL 777.31, for his use of the knife, under OV 3, MCL

777.33, for the injuries that the victim suffered during the beating, or under OV 7,

MCL 777.37, for the aggravated physical abuse of the victim because all these

actions, while part of the same criminal event as the rape, occurred after the rape

was completed.

Or to take another example, suppose a defendant kills a young woman,

dismembers her body, and then, three days later, sends photographs of the

dismembered body parts to the victim’s parents, which requires them to undergo

psychological counseling as a result of seeing the photographs. The defendant is

convicted of first-degree murder. Under the majority’s new elements-only rule,

the court cannot assess any points under OV 5, MCL 777.35, for the parents’

serious psychological injuries because the elements of first-degree murder were

completed before the defendant dismembered the body and sent the photographs

to the parents. The majority’s new rule will thus prevent courts from assessing the

true seriousness of an offense when scoring the guidelines to determine the

appropriate minimum sentence.

I. Waiver

Waiver is the intentional relinquishment or abandonment of a known right.

People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000). It differs from

forfeiture, which is the failure to timely assert a right. Id. A waiver extinguishes

the alleged error, thus foreclosing appellate review. Id. at 215, 219. In Carter, we

held that no reviewable error existed because defense counsel had “clearly

3
expressed satisfaction with the trial court’s decision to refuse the jury’s request [to

rehear testimony] and its subsequent instruction.” Id. at 219.

Here, the court asked defense counsel at sentencing if he had received the

sentencing information report indicating a guidelines minimum sentence range of

29 to 114 months. Defense counsel responded, “Yes, Judge, and they appear to be

correct.” Defendant did not take issue with counsel’s statement. Thus, the record

reflects that the defense expressed satisfaction with the guidelines range, the

calculation of which included the scoring of OV 9 that defendant now challenges

on appeal. Because the issue has been waived, the alleged error is extinguished,

foreclosing appellate review. Id. at 215, 219.

The majority’s reliance on defendant’s motion for resentencing as a basis to

review the alleged error reflects a misunderstanding of the distinction between

waiver and forfeiture. Although a motion for resentencing may preserve a claim

and thus avoid forfeiture, defendant here had already waived the alleged error at

sentencing, thus extinguishing it before the motion for resentencing was filed. We

have never held that an extinguished error could be revived in the manner

suggested by the majority; indeed, creating a new “revival of waived errors” rule

would significantly erode the distinction between waiver and forfeiture explained

in Carter.

The majority also errs by stating that “[b]ecause the prosecution failed to

raise the issue of defendant’s waiver, we need not consider it.” Ante at 12 n 36.

An appellee is not required to file a cross-appeal raising the issue of forfeiture or

4
waiver. On the contrary, an appellant’s argument on each issue must include a

statement of the applicable standard or standards of review. MCR 7.212(C)(7);

MCR 7.306(A). A defendant’s waiver or forfeiture of an issue will affect the

availability of or the standard of review for that issue. Thus, preservation,

including forfeiture and waiver, is a threshold question that inheres in every issue

raised on appeal and must be considered by an appellate court. The majority’s

novel view that an appellee must file a cross-appeal to challenge the preservation

of an issue thus lacks any basis in our court rules or caselaw, and it would increase

dramatically the number of criminal appeals filed in our court system.

Moreover, if, under today’s decision, an appellee is now required to raise

the argument that the appellant waived a substantive issue, then is the appellant

required to raise the argument that the appellee waived the waiver issue? The

majority’s decision essentially creates a potentially infinite spiral of waivers with

no logical stopping point. What principle guides the majority in choosing to end

this spiral at the point where the appellee but not the appellant is responsible for

raising the issue? It is, after all, by definition the appellant who generally

advances issues on appeal. The majority’s arbitrary and unexplained assignment

of responsibility to the appellee distorts the usual appellate burden and is most

troubling.

Nor is it clear how the majority can avoid addressing whether the

substantive issue was waived if, as we held in Carter, a waived error is

extinguished. The truly illogical nature of the majority’s action should not go

5
unmentioned: the majority reverses the judgment of sentence on the basis of an

“error” while refusing even to consider whether that “error” was extinguished.

How can the majority reverse because of an error while dodging the question

whether that very error even exists?

Further, the majority cites Mitcham v Detroit, 355 Mich 182, 203; 94

NW2d 388 (1959), for the proposition that the “[f]ailure to brief an issue on appeal

constitutes abandonment.” Ante at 12 n 36. But in Mitcham, this Court was

referring to an appellant’s failure to brief an issue in a civil case, not to an

appellee’s failure to discuss an issue in response.1

Indeed, this Court expressly declined to apply the Mitcham abandonment

rule to an appellee in a criminal case. In People v Smith, 439 Mich 954 (1992),

this Court vacated the portion of a Court of Appeals judgment that reversed a

defendant’s convictions on the ground that the prosecution had confessed error by

failing to file a brief. This Court explained:

A party who seeks to raise an issue on appeal but who fails to
brief it may properly be considered to have abandoned the issue.
Mitcham v Detroit, 355 Mich 182, 203 (1959). However, the failure
of an appellee to file a responsive brief may not properly be
considered to be a confession of substantive error. [Id. (emphasis
added).]

1
Similarly, the majority’s citation of Gross v Gen Motors Corp, 448 Mich
147, 162 n 8; 528 NW2d 707 (1995), and Dwelley v Tom McDonnell, Inc, 334
Mich 229, 233; 54 NW2d 217 (1952), for the proposition that “a party is bound to
the theory on which the cause was prosecuted or defended in the court below” is
erroneous because neither Gross nor Dwelley suggested that an appellee’s failure
to address an issue correctly in a responsive brief precludes an appellate court
from addressing the issue.

6
 If, as this Court held in Smith, an appellee’s failure to file a brief altogether

does not constitute a confession of error, then it follows that an appellee’s filing of

a brief that does not address a particular issue also is not a confession of error.

The majority essentially overrules Smith by indirection without acknowledging

that it is doing so.

The majority’s new “appellee waiver” rule not only distorts our caselaw,

but may also have very serious real-world consequences for our state’s criminal

justice system in these difficult economic times. Apparently because of budget

constraints, the prosecution does not file appellee briefs in 19 percent of the

criminal appeals in the Court of Appeals. Yet the majority now punishes the

people of this state for failing to file a brief by creating what amounts to an

automatic rule of reversal in one-fifth of the criminal appeals in our state.

Indeed, the dissenting judge in the Court of Appeals in Smith noted this

very concern by explaining that reversing a conviction on the ground that the

prosecution had not filed a brief “would result in the unnecessary reversal of

validly obtained convictions” and “would constitute an even greater waste of this

state’s already taxed law enforcement, prosecutorial, and judicial resources than

that occasioned by this Court’s review of both sides of an issue on appeal.”

People v Smith, 190 Mich App 352, 359; 475 NW2d 857 (1991) (Danhof, C.J.,

dissenting).

An appellate court is obligated to articulate and apply the governing legal

principles correctly regardless of whether the parties or lower courts have done so.

7
That is why an appellate court will affirm a lower court’s judgment if it reached

the correct result albeit for the wrong reason. See, e.g., American Alternative Ins

Co, Inc v York, 470 Mich 28, 33; 679 NW2d 306 (2004) (“The trial court and the

Court of Appeals applied the wrong legal standards. However, because the Court

of Appeals reached the correct result, we affirm the Court of Appeals decision for

the reasons stated herein.”).

The majority’s decision subverts this fundamental duty by declining to

apply the waiver principles explicated in Carter. We should not pretend that no

waiver occurred merely because the prosecution’s responsive brief did not

correctly articulate the appropriate manner to resolve the issues raised on appeal.

II. Ineffective assistance of counsel

Defendant argues that his trial counsel rendered ineffective assistance, but

the majority does not analyze this issue under the two-part test for ineffective

assistance of counsel set forth in Strickland v Washington, 466 US 668; 104 S Ct

2052; 80 L Ed 2d 674 (1984). To satisfy the Strickland standard, a defendant

bears a heavy burden to show that counsel made errors so serious that he was not

performing as the counsel guaranteed by the Sixth Amendment, and the defendant

must overcome a strong presumption that counsel’s performance constituted sound

trial strategy. Moreover, the defendant must establish prejudice, i.e., a reasonable

probability that but for counsel’s error, the result of the proceeding would have

been different. See People v Dendel, 481 Mich 114, 124-125; 748 NW2d 859

(2008); People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).

8
 The majority does not explain whether, and if so, why, it believes defendant

has met the heavy burden required to establish ineffective assistance of counsel.

In any event, counsel’s acquiescence in the scoring of OV 9 was not an error at all,

let alone an error so serious as to deprive defendant of the counsel guaranteed by

the Sixth Amendment. At the time of sentencing, the existing caselaw provided

that a defendant’s conduct during the continuum of events surrounding the offense

could be considered in scoring the offense variables. See People v Cook, 254

Mich App 635, 641; 658 NW2d 184 (2003) (“[W]here the Legislature has not

precluded it, we find that where the crimes involved constitute one continuum of

conduct, as here, it is logical and reasonable to consider the entirety of defendant’s

conduct in calculating the sentencing guideline range with respect to each

offense.”); People v Chesebro, 206 Mich App 468, 471; 522 NW2d 677 (1994)

(stating that when scoring OV 6 of the former judicial guidelines, which

corresponded with current OV 9, victims involved in the transaction giving rise to

the conviction may be considered).

At the time of sentencing, counsel could not have known that the then-

controlling caselaw would be swept aside by the majority’s new rule confining the

scoring of offense variables to the definitional elements of the sentencing offense.

The failure to anticipate a change in the law generally does not constitute

ineffective assistance of counsel. Mullican v United States, 469 F Supp 2d 498,

504 (ED Tenn, 2007), citing Brunson v Higgins, 708 F2d 1353, 1356 (CA 8,

1983); see also Lucas v O’Dea, 179 F3d 412, 420 (CA 6, 1999) (“Only in a rare

9
case will a court find ineffective assistance of counsel based upon a trial attorney’s

failure to make an objection that would have been overruled under the then-

prevailing law.”) (quotation marks omitted); Kornahrens v Evatt, 66 F3d 1350,

1360 (CA 4, 1995) (“Based on this clear precedent, we cannot say that, under the

facts of this case, [counsel’s] trial performance was constitutionally deficient

because he followed a long-standing and well-settled rule of South Carolina

criminal law—even when that rule was under attack in the United States Supreme

Court at the time of trial.”) (emphasis added).

Thus, counsel’s acquiescence in the scoring of OV 9 does not satisfy the

deficient performance prong of Strickland. The failure to anticipate that this Court

would one day invent an elements-only test for scoring offense variables in

contravention of caselaw in effect at the time of sentencing does not constitute

ineffective assistance of counsel.

III. When is the sentencing offense completed?

The majority’s central holding is that a defendant’s conduct occurring after

an offense is completed may not be considered in scoring the offense variables

unless the statutory provision for a particular variable instructs otherwise. The

central flaw in the majority’s analysis is that it completely begs the question of

when an offense is completed. Indeed, the majority expressly avoids this question

in this case, providing only an amorphous analysis regarding whether the

challenged conduct was “far beyond and removed” from the underlying offense.

Ante at 16 n 45. Rather than permitting sentencing courts to analyze the res gestae

10
of a sentencing offense as we do in other contexts, the majority artificially limits

consideration of the offense to its definitional elements. Not once does the

majority even attempt to explain why or on what authority it has imposed this

limitation.

The majority’s new elements-only rule has no basis in Michigan caselaw.

In Chesebro, the Court of Appeals held that only victims involved in the

transaction underling the sentencing offense could be considered in scoring OV 6

of the former judicial guidelines:

We think the rule that more accurately applies the sentencing
guidelines is that the offense variables are to be scored only with
respect to the specific criminal transaction that gives rise to the
conviction for which the defendant is being sentenced unless the
instructions for a variable specifically and explicitly direct the trial
court to do otherwise. [Chesebro, supra at 471 (emphasis added).]

We analyzed scoring decisions under OV 9 of the current legislative

sentencing guidelines in People v Morson, 471 Mich 248; 685 NW2d 203 (2004),

and People v Sargent, 481 Mich 346; 750 NW2d 161 (2008). In Morson, the

defendant’s accomplice committed an armed robbery against Deborah Sevakis. A

bystander, James Bish, was shot while chasing the accomplice after the elements

of armed robbery were completed. This Court held:

Defendant was assessed ten points by the sentencing court for
two victims: Deborah Sevakis and James Bish. The Court of
Appeals reversed that determination by the sentencing court,
concluding that Sevakis was the only victim of the armed robbery.
We disagree with the Court of Appeals and therefore reverse its
conclusion regarding OV 9.

Pursuant to the plain language of the statute, the sentencing
court is to count “each person who was placed in danger of injury or

11
 loss of life” as a victim. Though Sevakis was the only person
actually robbed, Bish, who was standing nearby and responded to
Sevakis’s call for help, was also “placed in danger of injury or loss
of life” by the armed robbery of Sevakis. Consequently, the
sentencing court properly counted Bish as a victim and properly
scored defendant under OV 9. [Morson, supra at 261-262.]

Although Justice Young dissented on other issues in Morson, he agreed

with the majority’s analysis of OV 9:

I agree with the majority that the trial court did not err when it
assessed ten points for offense variable (OV) 9. The language of
MCL 777.39(2)(a) clearly states that each person “placed in danger
of injury or loss of life” is to be counted as a victim. Because a gun
was fired at him, James Bish was placed in danger even if he had not
intervened or been injured. [Id. at 277 (Young, J., concurring in part
and dissenting in part) (second emphasis added).]

Thus, all persons placed in danger during the course of a crime are properly

counted as victims for the purposes of OV 9.

Nothing in Morson suggests that only the definitional elements may be

used in scoring the offense variables. On the contrary, conduct that occurred after

the elements were satisfied supported the OV 9 scoring decision. Thus, Morson

supports the conclusion that every person placed in danger during the criminal

event may count as a victim under OV 9.2

In Sargent, a criminal sexual conduct case, the sentencing court assessed 10

points for OV 9 on the basis that there were two victims: the complainant and her

sister, whom the defendant had sexually abused previously. In a unanimous

2
Then-Justice Kelly and Justice Cavanagh were in the majority in Morson,
yet they make no attempt to explain their sudden change of opinion here.

12
decision, this Court remanded for resentencing because the abuse of the

complainant’s sister was not part of the sentencing offense transaction and only

conduct relating to the offense could be considered when scoring the offense

variables.

We explained in Sargent that the offense variables are generally offense

specific because their primary focus is the nature of the offense. We quoted

several provisions that focused on “the offense” for purposes of scoring the

guidelines. Sargent, supra at 348. We also noted that MCL 769.31(d) defines

“offense characteristics” as “the elements of the crime and the aggravating and

mitigating factors relating to the offense that the legislature determines are

appropriate.” Id. Thus, we held, only conduct “relating to the offense” may be

considered when scoring the offense variables. Id. at 349. This conclusion was

reinforced by the fact that the statutes for some offense variables specifically

provide for considering factors unrelated to the offense being scored. Id. at 349-

350. We thus concluded that “only conduct that relates to the offense being scored

may be considered.” Id. at 350.

We then stated that “when scoring 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. Noting that the

jury did not convict the defendant of abusing the complainant’s sister and that the

abuse of the sister did arise out of the same transaction as the abuse of the

13
complainant, we concluded that zero points should have been assessed for OV 9.

Id. at 351.

And as discussed, Court of Appeals caselaw applying the legislative

guidelines also suggests that the entire criminal transaction may be considered in

scoring the offense variables. In Cook, the defendant challenged the use of his

conduct in fleeing the police to assess 10 points for OV 19 (interference with the

administration of justice) when calculating his minimum sentence for assault with

intent to do great bodily harm less than murder. The defendant argued that his

flight from the police did not occur during the assault. The Court of Appeals

found no basis for the defendant’s argument in the plain language of the statute.

In drafting the sentencing guidelines scoring instructions, the
Legislature could have expressly prohibited sentencing courts from
considering facts pertinent to the calculation of the sentencing
guidelines range for one offense from being also used to calculate
the sentence guidelines range for another offense, but it did not do
so. Moreover, where the Legislature has not precluded it, we find
that where the crimes involved constitute one continuum of conduct,
as here, it is logical and reasonable to consider the entirety of
defendant’s conduct in calculating the sentencing guideline range
with respect to each offense. Thus, the trial court did not err in
scoring ten points under OV 19 for defendant’s assault conviction.
[Cook, supra at 641 (emphasis added).]

See also People v Gullet, 277 Mich App 214, 218; 744 NW2d 200 (2007) (holding

that the sentencing court had improperly “looked beyond the criminal transaction

that supported the conviction when it scored 10 points for OV 9”).

In short, all these cases support the conclusion that a court may consider the

criminal transaction when scoring the offense variables. Until today’s decision, a

14
sentencing court was never required to confine its analysis only to the definitional

elements of the sentencing offense.

More broadly, the res gestae concept is deeply embedded in our caselaw.

For example, in People v Gillis, 474 Mich 105, 109; 712 NW2d 419 (2006), we

held that in felony murder, a defendant’s “perpetration” of the predicate felony

includes acts that occur outside the definitional elements but during “the unbroken

chain of events surrounding that felony.” “Because defendant at the time of the

collision was attempting to escape detection after having been identified during

the home invasion, a reasonable juror could conclude that he was still ‘in the

perpetration of’ the home invasion.” Id.

Although the analysis in Gillis hinged in part on the definition of

“perpetration” in the first-degree murder statute, a term that is not used in the

offense variable provisions, it is nonetheless useful in demonstrating that an

offense may remain ongoing after the completion of the definitional elements. We

noted in Gillis that the “commission of the felony itself does not render the

defendant’s criminal plan complete. When a defendant plans to commit a

felonious act, it is ‘a legitimate assumption that . . . [the defendant] also planned to

escape from the scene of his crime.’” Id. at 115-116 (citation omitted). We noted

that “escape is ‘as important to the execution of the [felony]’ as the elements of

the crime itself.” Id. at 116 (citation omitted).

In other words, a felon has not “carried out” or “completed”
the felony for felony-murder purposes until the felon has escaped. A
murder committed during the attempt to escape is committed “in the
perpetration of” that felony, because the felonious transaction has

15
 not yet been completed. Accordingly, “perpetration” includes not
only the definitional elements of the predicate felony, but also
includes those acts that are required to complete the felony—such as
those that occur after the commission of the predicate felony while
the felon is attempting to escape . . . .

* * *

“A burglar may be said to be engaged in the commission of
the crime of burglary while making away with the plunder, and
while engaged in securing it. So, a robbery within the meaning of a
rule that a homicide committed in the perpetration of a robbery is
murder in the first degree is not necessarily concluded by the
removal of the goods from the presence of the owner; and it is not
necessary that the homicide should be committed at the precise time
and place of the robbery. As in the case of burglary, the robber may
be said to be engaged in the commission of the crime while he is
endeavoring to escape and make away with the goods taken.” [Id. at
116-117, 120, quoting Wharton, Law of Homicide (3d ed), § 126, p
186) (emphasis added).]

In short, under the res gestae rule, a murder that occurs during the

“unbroken chain of events surrounding the predicate felony” is committed in the

perpetration of that felony. Gillis, supra at 121. Time, place, causation, and

continuity of action determine whether the murder occurred in perpetration of the

predicate felony. Id. at 127.

Moreover, this Court’s use of the res gestae principle is not limited to the

felony murder context. It is firmly rooted in our caselaw and used to describe not

only the elements of the offense, but also the body of facts necessary to prove and

support those elements. See, e.g., People v Kayne, 268 Mich 186; 255 NW 758

(1934); People v Sholl, 453 Mich 730; 556 NW2d 851 (1996). A leading treatise

concisely explains the res gestae principle:

16
 The res gestae includes circumstances, facts and declarations
which grow out of the main fact, contemporaneous with it, and serve
to illustrate its character. Normally facts and circumstances
surrounding the commission of a crime are properly admissible as
part of res gestae; however, use of testimony by the prosecutor to
create prejudicial inferences unsupported by evidence is improper.

No inflexible rule has ever been, and probably one can never
be adopted as to what is a part of the res gestae. It must be
determined largely in each case by the peculiar facts and
circumstances of the case, but it may be stated as a fixed rule that
included in the res gestae are the facts which so illustrate and
characterize the principal fact as to constitute the whole of one
transaction. So long as a transaction continues, so long do acts and
deeds emanating from it became [sic] a part of it, they may be
described in a court of justice. There is no limit of time within
which the res gestae can be arbitrarily confined. [1A Gillespie,
Michigan Criminal Law and Procedure, § 18:72, pp 445-446.]

In light of our well-established caselaw addressing res gestae, I cannot

discern why this Court should now invent a wholly different rule for determining

when an offense is complete for purposes of applying the offense variables. Even

accepting, as we stated in Sargent, that the offense variables are offense specific

and that the focus must be on the nature of the sentencing offense, the majority

fails to explain why only the definitional elements may be considered. If, as we

stated in the felony murder context, a felony is ongoing and not yet complete

while the felonious transaction continues, then why cannot a sentencing court

consider the full continuum of a defendant’s conduct during that transaction for

the purpose of scoring the offense variables? Further, in relation to any offense,

the court will have already heard the entire res gestae of the crime during the trial

or other proceedings and should be allowed to consider those aggravating and

17
mitigating factors affecting the seriousness of the offense when relevant to scoring

particular variables.

The elements are traditionally used to determine whether the prosecution

has presented sufficient evidence to support a charge or a conviction, not to define

the res gestae of the offense. Indeed, the majority’s new rule collapses the

duration of a criminal offense so that it begins and ends at precisely the same

instant. A prosecutor cannot charge a crime until the last element has been

completed. At the most, a prosecutor could charge only for an attempt if all the

elements have not been completed. Yet under the majority’s opinion, the crime

also stops immediately upon the completion of the elements. That is, at the

precise moment the crime can be charged, the majority would stop the clock for

the purpose of scoring the sentencing guidelines. Why?

As we explained in Sargent, MCL 769.31(d) defines “offense

characteristics” as “the elements of the crime and the aggravating and mitigating

factors relating to the offense that the legislature determines are appropriate.”

(Emphasis added.) In contravention of the statute and our analysis in Sargent, the

majority now limits consideration to the elements and requires courts to ignore any

other facts and circumstances “relating to the offense” that occur during the res

gestae of the crime.

Not once does the majority even attempt to explain why or how it has

reached the remarkable conclusion that a defendant’s flight from the scene of the

crime is not an “aggravating . . . factor[] relating to the offense . . . .” Instead, the

18
majority simply gives no effect to the portion of the statute that does not support

its new standard, focusing only on the reference to “the elements of the crime”

while disregarding the phrase “and the aggravating and mitigating factors relating

to the offense that the legislature determines are appropriate.” MCL 769.31(d).

The majority’s suggestion that it can ignore defendant’s escape attempt

because defendant was not convicted of fleeing and eluding reflects a mistaken

understanding of MCL 769.31(d). Again, that statute defines “offense

characteristics” as

the elements of the crime and the aggravating and mitigating factors
relating to the offense that the legislature determines are appropriate.
For purposes of this subdivision, an offense described in . . . MCL
791.233b, that resulted in a conviction and that arose out of the same
transaction as the offense for which the sentencing guidelines are
being scored shall be considered as an aggravating factor.

This provision requires that certain offenses that result in a conviction must be

considered as aggravating factors. But contrary to the majority’s suggestion, it

does not say that other contemporaneous offenses that do not result in a conviction

or that are not listed in MCL 791.233b cannot be considered as aggravating

factors.

Next, it is true, as we stated in Sargent, that some of the offense variable

provisions expressly require consideration of facts that are not offense specific.

But most of the examples cited contemplate consideration of events falling not

only outside the definitional elements of the sentencing offense, but outside the

criminal transaction itself. Thus, the statutory provisions for those offense

variables would not be nullified by considering the criminal transaction in scoring

19
all offense variables. And although OV 14 (leader in a multiple offender situation)

does expressly refer to the “entire criminal transaction,” MCL 777.44(2)(a), this

language merely emphasizes the broader focus when the defendant is a leader of

other offenders. In other words, the reference to the “entire criminal transaction”

in this provision merely reflects that OV 14 uniquely pertains to multiple offender

situations.

Moreover, the majority’s elements-only test violates the very purpose of the

sentencing guidelines: to promote uniformity and consistency in sentencing.3 To

that end, we have held that departure from the guidelines recommended minimum

sentence range is meant to be the exception, not the rule.4 Despite this well-

established standard and without acknowledging the inconsistency created, the

majority states that the trial court may consider factors within the criminal

transaction but outside the elements when departing from the guidelines range.

This reasoning is simply unsupported by the law of this state.

3
See People v Smith, 482 Mich 292, 311-312 & n 46; 754 NW2d 284
(2008); former MCL 769.33(1)(e)(iv), as added by 1994 PA 45 (providing that one
of the Sentencing Commission’s tasks was to develop sentencing guidelines that
“[r]educe sentencing disparities based on factors other than offense characteristics
and offender characteristics and ensure that offenders with similar offense and
offender characteristics receive substantially similar sentences”); People v
Babcock, 469 Mich 247, 263; 666 NW2d 231 (2003) (“The premise of our system
of criminal justice is that, everything else being equal, the more egregious the
offense, and the more recidivist the criminal, the greater the punishment.”).
4
Smith, supra at 299, citing Babcock, supra at 257-258, citing People v
Fields, 448 Mich 58, 62, 67-68; 528 NW2d 176 (1995).

20
 Indeed, those justices in the majority in this case who were also in the

majority in People v Smith, 482 Mich 292; 754 NW2d 284 (2008), have failed to

explain their inconsistent positions. Contrary to the analysis in Smith, the majority

today suggests that sentencing courts should depart freely from the guidelines

recommended range by considering factors outside the elements of the offense that

may not be considered when scoring the offense variables. This invitation to

depart more readily from the guidelines will likely cause a dramatic increase in the

number of sentencing appeals, which our appellate courts will have to review

under the rigid framework demanded by Smith.

In this case, I would hold that defendant was properly assessed 10 points

for OV 9. Defendant argues that even if his escape attempt were to be considered,

his accomplices could not be considered victims for the purpose of scoring OV 9.

But the version of MCL 777.39(2)(a) applicable in this case stated: “Count each

person who was placed in danger of injury or loss of life as a victim.” (Emphasis

added.) Defendant’s accomplices occupied the car that crashed into a fence during

a police chase, obviously putting them in danger of physical injury. “Each

person” is not a difficult phrase to understand, and it does not exclude

accomplices. A person’s guilt or innocence does not affect whether that person

was placed in danger.

Defendant further contends that no evidence existed that he was driving the

getaway vehicle when it crashed into the fence. The police officer, however, saw

a person with light hair inside the fleeing vehicle, and defendant had red hair,

21
which could be viewed as light.5 In any event, defendant at the very least aided

and abetted the escape attempt, and he cannot now avoid responsibility for

participating in the flight from the police that led to the crash into a fence.

IV. Conclusion

Accordingly, I would affirm the judgment of the Court of Appeals.

Defendant waived his claim that OV 9 was incorrectly scored when his attorney

conceded at sentencing that the guidelines minimum sentence ranges for his

offenses “appear to be correct.” Counsel was not ineffective in making this

concession, given that the caselaw in effect at the time of sentencing supported the

OV 9 score. Finally, the majority’s new elements-only rule for scoring offense

variables has no basis in our caselaw. The Court of Appeals properly considered

the entire res gestae of the sentencing offense in concluding that the evidence

supported the scoring decision.

Maura D. Corrigan
Elizabeth A. Weaver
Robert P. Young, Jr.

5
The presentence investigation report states that the officer “could observe
a male subject with light hair, who then put a black hood over his head. There
were no other occupants visible in the car.” (Emphasis added.) Contrary to the
implication of the majority, it is a reasonable inference that the only person the
officer saw in the vehicle was the driver of that vehicle.

22