People v. Houston

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

JULY 26, 2005

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 126025

DUANE HOUSTON

Defendant-Appellant.
_____________________________________

YOUNG, J.

This appeal concerns the proper method of scoring

offense variable 3 (OV 3), which addresses “physical injury

to a victim.” MCL 777.33. The defendant in this case was

convicted of second-degree murder on the basis of the

shooting death of John Strong. Offense variable 3 requires

the sentencing judge to select one from among the several

listed scoring elements and assign points that range from a

high of one hundred for a death to zero when no injury

occurred. The sentencing guidelines require that the

sentencing judge assess the highest number of points

applicable. Generally speaking, the higher the number of

points assessed, the longer the resulting sentence.
 In determining defendant’s sentence under the

legislative guidelines, the trial court assessed twenty-

five points for OV 3 because the victim suffered an injury–

a gunshot wound. Defendant was sentenced to life

imprisonment, in part on the basis of this scoring

determination.

On appeal, defendant argues that he should not have

been assessed any points for OV 3. This variable provides

that the sentencing court must score one hundred points

when a victim dies unless homicide is the sentencing

offense. Defendant would have been appropriately assessed

one hundred points but for the fact that second-degree

murder, a form of homicide, was the sentencing offense.

Defendant argues that none of the other variable elements

requiring the assessment of points was applicable and,

therefore, the trial court’s only option was to assess zero

points.

We disagree. The defendant not only killed the

victim, but in the process also caused a physical injury—a

gunshot wound to the head.1 Consequently, although the

1
The dissent detects an “inconsistency” between our
recognition that the victim suffered an injury and our
conclusion that the victim suffered a life-threatening
injury. Post at 1. But a life-threatening injury is an
injury. We fail to see an “inconsistency” here.

2

court did not have the option of assessing one hundred

points for OV 3, it properly assessed twenty-five points on

the basis of the next applicable variable element: “Life

threatening or permanent incapacitating injury.” This

conclusion is mandated by the fact that the statute

governing OV 3 requires that trial courts assess the

highest number of points possible.

Accordingly, we affirm the judgment of the Court of

Appeals.

FACTS AND PROCEDURAL HISTORY

In December 2001, John Strong was the victim of an

attempted robbery in Flint, Michigan. During the course of

the robbery, Mr. Strong’s assailant shot him in the head,

killing him. Defendant Duane Houston was charged with Mr.

Strong’s death. Although he maintained his innocence

throughout his trial, defendant was convicted by a jury of

second-degree murder2 and possession of a firearm during the

commission of a felony,3 and was acquitted of assault with

intent to rob while armed.4 The court sentenced defendant

as a second felony offender to a term of life, plus a term

of two years.

2
MCL 750.317.
3
MCL 750.227b.
4
MCL 750.89.

3

 Defendant appealed by right to the Court of Appeals,

arguing that the trial court had misscored OV 3 and offense

variable 14 (OV 14)5 and had erred by sentencing him to life

imprisonment as an habitual offender.6 In affirming

defendant’s convictions, the panel assumed arguendo that

the offense variables were scored erroneously, but held

that any error was harmless because defendant was properly

sentenced to life imprisonment as a repeat offender.7

In November 2004, we granted defendant’s application

for leave to appeal, limiting the parties to the following

issues: “(1) whether Offense Variable 3, MCL 777.33, was

properly scored and (2) whether a sentence of life

imprisonment falls within the statutory sentencing

5
Our order granting leave to appeal in this case was
limited to considering the scoring of OV 3. 471 Mich 913
(2004). Indeed, the Court of Appeals opinion notes that
any error in scoring OV 14 would not have affected
defendant’s sentence. 261 Mich App 463, 471; 683 NW2d 192
(2004). We do not address OV 14 in this appeal.
6
Defendant also argued before the Court of Appeals
that the trial court abused its discretion in admitting
evidence regarding defendant’s possession of a weapon
similar to that used in the murder. 261 Mich App 465-470.
The Court of Appeals panel rejected that argument and we
excluded that issue from our limited order granting leave
to appeal. 417 Mich 913.
7
261 Mich App 472-473.

4

guidelines for second-degree murder for a defendant who is

an habitual offender.”8

STANDARD OF REVIEW

Statutory construction is a question of law subject to

review de novo.9 Our paramount task is to discern and give

effect to the Legislature’s intent as manifest in the

plain, unambiguous language of its statutes.10

ANALYSIS

I

We must begin, as always, with the language of the

governing statutes. At the time defendant was sentenced,11

MCL 777.33 (OV 3) provided:

(1) Offense variable 3 is physical injury to
a victim. Score offense variable 3 by
determining which of the following apply and by
assigning the number of points attributable to
the one that has the highest number of points:

(a) A victim was killed.......100 points

(b) A victim was killed.........35 points

8
471 Mich 913.
9
People v Perkins, 468 Mich 448, 452; 662 NW2d 727
(2003).
10
Lansing Mayor v Pub Service Comm, 470 Mich 154, 157;
680 NW2d 840 (2004).
11
MCL 777.33 was later amended in a manner not germane
to the legal question at issue here.

5

 (c) Life threatening or permanent
incapacitating injury occurred to a
victim...............................25 points

(d) Bodily injury requiring medical
treatment occurred to a victim.......10 points

(e) Bodily injury not requiring medical
treatment occurred to a victim........5 points

(f) No physical injury occurred to a
victim................................0 points

(2) All of the following apply to scoring
offense variable 3:

(a) In multiple offender cases, if 1
offender is assessed points for death or physical
injury, all offenders shall be assessed the same
number of points.

(b) Score 100 points if death results from
the commission of a crime and homicide is not the
sentencing offense.

(c) Score 35 points if death results from
the commission of a crime and the offense or
attempted offense involves the operation of a
vehicle, vessel, ORV, snowmobile, aircraft, or
locomotive under the influence or while impaired
causing death.

(d) Do not score 5 points if bodily injury
is an element of the sentencing offense.

(3) As used in this section, “requiring
medical treatment” refers to the necessity for
treatment and not the victim’s success in
obtaining treatment. [Emphasis added.]

Defendant argues that, because the statute governing

OV 3 prohibits the trial court from scoring one hundred

points on the basis of the death of the victim when

homicide is the sentencing offense, the court in this case

6

was required to assess zero points. Implicit in this

argument is the assumption that only the “ultimate result”

of a defendant’s criminal act—here, the death rather than

the injury that preceded the death—may be considered in

scoring OV 3. The prosecution argues, on the other hand,

that the court correctly assessed twenty-five points for OV

3. Because the court was precluded from considering the

victim’s death under MCL 777.33(2)(b), it could, in the

prosecution’s view, consider and score the next applicable

factor on the basis of the physical injury that preceded

the victim’s death.

Faithful application of the plain language of MCL

777.33 demonstrates that the prosecution is correct and

that defendant was properly assessed twenty-five points for

OV 3 in this case.

The Legislature expressly prohibited the assessment of

one hundred points when, as here, the underlying offense is

homicide.12 Consequently, one hundred points under MCL

777.33(1)(a) must be excluded as a possible assessment for

OV 3.13

12
MCL 777.33(2)(b).
13
MCL 777.33(2)(c) states that thirty-five points are
to be scored only when the underlying offense “involve[s]
the operation of a vehicle, vessel, ORV, snowmobile,

7

 It is equally clear, according to the plain language

of MCL 777.33(1)(f), that zero points must be excluded as

an option because zero points may be assessed under that

subsection only when “[n]o physical injury occurred to a

victim.”14 The gunshot wound to the victim’s head in this

case unquestionably constitutes a physical injury.

aircraft, or locomotive . . . .” Because the underlying
offense in this case did not involve the operation of any
of the listed conveyances, thirty-five points under MCL
777.33(1)(b) must be excluded as a possible assessment for
OV 3 as well. Five points under MCL 777.33(1)(e) must also
be excluded; the victim did not suffer a “bodily injury
not requiring medical treatment” because a gunshot wound to
the head is, quite obviously, a bodily injury that does
require medical treatment.
14
It may also be appropriate in some cases to score
zero points where “[b]odily injury not requiring medical
treatment occurred to a victim” and “bodily injury is an
element of the sentencing offense”—although, as discussed
earlier, “[b]odily injury not requiring medical treatment”
does not apply to the victim in this case. MCL
777.33(1)(e) and (2)(d). Justice Cavanagh believes this
supports his position. We disagree.

MCL 777.33 requires that the trial court assign the
greatest number of points possible when scoring OV 3. When
(a) a victim incurs a bodily injury not requiring medical
treatment and (b) bodily injury is an element of the
sentencing offense, the highest number of points possible
under OV 3 is zero points. But when a victim dies after
receiving a life-threatening injury, the highest number of
points possible is twenty-five points. Justice Cavanagh’s
argument is therefore premised on failure to follow a clear
statutory requirement: that of assessing the highest number
of points possible.

8

Therefore, the trial court did not have the option of

scoring zero points for OV 3.15

The only options left for the trial court, therefore,

were to assess either twenty-five points under MCL

777.33(1)(c) or ten points under MCL 777.33(1)(d) on the

basis of the life-threatening bodily injury requiring

medical treatment sustained by the victim—viz., the gunshot

wound to the victim’s head. Because the statute directs

the trial court to award the highest number of points

possible under OV 3, the trial court was required to assess

twenty-five points under MCL 777.33(1)(c).16

15
Justice Cavanagh posits that “[i]f homicide is an
element of the sentencing offense, a defendant should not
be assessed any points for OV 3 . . . ." Post at 7
(emphasis added). However, MCL 777.33(2)(b) states that if
homicide is an element of the sentencing offense, a
defendant should not be assessed one hundred points for OV
3. In other words, MCL 777.33(2)(b) specifically precludes
the scoring of one hundred points where the sentencing
offense is a homicide. If the Legislature, as the dissent
contends, had intended to preclude the scoring of any
points where the sentencing offense is a homicide, why did
it only specifically preclude the scoring of one hundred
points? Indeed, that the Legislature precluded the scoring
of one hundred points where the sentencing offense is a
homicide suggests that the Legislature intended some points
to be scored where the sentencing offense is a homicide.
16
The dissent asserts that MCL 777.33(1)(c) is simply
inapplicable where a victim actually dies after receiving a
life-threatening injury, maintaining that there is a
critical distinction between a “life-threatening” or
“potentially fatal injury” and a “life-ending” or “fatal
injury.” Post at 2-3. We see no support in the statute
for the position that an injury that actually causes death

9

 Therefore, the trial court correctly assessed twenty-

five points for OV 3. When defendant’s offense variables

are properly scored, his recommended sentence under the

legislative guidelines is 180 to 300 months or life.

Accordingly, the trial court did not err in sentencing

defendant to life for second-degree murder, and its

sentence must be affirmed.

cannot be said to have once been a “life-threatening” or
“potentially fatal injury.”

Nor does the dissent’s distinction have much logical
appeal. Suppose that Mr. Jones was the victim of a life-
threatening injury—say, severe head trauma—on Day 1 and is
hospitalized. On Day 50, despite heroic medical efforts to
save him, Mr. Jones dies. The defendant is charged with
homicide for the resulting death of the victim. Under the
dissent’s rationale, Mr. Jones’s severe head trauma was
never a “life-threatening injury” because, in the end, he
actually died.

Thus, the dissent’s “interesting conundrum” is purely
the product of its own “contorted analysis.” Post at 4-5.
Contrary to the dissent, we think it can be said that a
victim who “dies instantly” has suffered a “life-
threatening injury.” Id. In this case, the victim
suffered a gunshot wound to the head. Although the shot
may have killed him immediately, the fact remains that the
injury itself was truly life-threatening. Indeed, to
paraphrase Justice Markman’s dissenting statement in People
v Hauser, 468 Mich 861, 862 (2003), the victim sustained an
injury so life-threatening that it was followed by his
death.

10

 II

Our conclusion in part I follows from the plain

language of the statute and the undisputed facts in this

case.

Defendant offers three arguments to counter this

reading of the statute governing OV 3. First, he asserts

that only the ultimate outcome of the criminal act—the

victim’s death, in this case—may be considered in scoring

OV 3. The statute obviously contains no “ultimate outcome”

requirement.17 Rather, it instructs courts to “[s]core

offense variable 3 by determining which of the following

apply and by assigning the number of points attributable to

the one that has the highest number of points.”18 This

language indicates that the Legislature believed that

multiple scoring factors may apply to a single offense.

The statute simply indicates that the one scoring factor

ultimately selected should (a) be applicable and (b) yield

the highest number of points possible. Where more than one

factor might apply (e.g., when a life-threatening injury

requires medical treatment), the one generating the highest

points is the correct one. The defendant’s assumption that

17
See part I of this opinion (quoting the relevant
statutory language).
18
MCL 777.33(1) (emphasis added).

11

only the ultimate outcome of the defendant’s act may be

considered in scoring OV 3 is therefore undermined by the

statutory language.

Defendant’s second argument is a variation on the

first. Defendant argues that OV 3 presents a “graduated

scale,” meting out the greatest number of points to those

who inflict the greatest harm. In light of this purported

“scale,” it would be incongruous, in defendant’s view, to

assess twenty-five points for a mere physical injury when

the defendant caused the victim’s death.

This argument, however ironic,19 is unpersuasive for

the reasons already noted. The Legislature intended for

multiple factors to apply and directed courts to select one

in order to assess the highest number of points possible.

The Legislature has explicitly eliminated the option of

assessing one hundred points in homicide cases, but not the

requirement of assessing the “highest number of points”

possible. The graduated nature of OV 3 therefore does not

lead to the conclusion that defendant may receive zero

points for this offense variable.

19
To the extent that more egregious crimes should
receive higher points as the statute directs, it is surely
more consistent with defendant’s purported “scale” to
assess him twenty-five rather than zero points.

12

 Finally, defendant argues that zero points must be

scored for OV 3 because the Michigan offense variables

“generally [indicate] a legislative policy of not assessing

points for factors that are inherent in the elements of the

offense for which the defendant is being sentenced.”20

Thus, defendant argues: “With the exception of the

anomalous and later-added MCL 777.33(1)(b), involving

alcohol-related deaths, this OV assesses points for

aggravating circumstances, not for factors inherent in the

sentencing offense itself.”

This is an odd and unpersuasive argument. We

consistently look to and enforce the plain language of

statutes rather than some imagined “legislative purpose”

supposedly lurking behind that language.21 The text of MCL

777.33 is quite clear and, as shown in part I, requires the

assessment of twenty-five points in this case. Defendant

offers no reason to abandon our usual rule of statutory

construction.

Moreover, the Legislature has in this very statute

demonstrated its ability to preclude the scoring of points

for circumstances that are a necessary element of the

20
Defendant’s brief at 5 (emphasis in original).
21
See, e.g., Sotelo v Grant Twp, 470 Mich 95, 100; 680
NW2d 381 (2004).

13

sentencing offense. For instance, MCL 777.33(2)(b)

precludes the scoring of one hundred points where death is

an element of the sentencing offense. In addition, MCL

777.33(2)(d) precludes the scoring of five points where

bodily injury is an element of the sentencing offense.

Therefore, if the Legislature had intended to preclude the

scoring of twenty-five points where death is an element of

the sentencing offense, it clearly knew how to do so.

Thus, none of defendant’s arguments offers a persuasive

reason to depart from the Legislature’s intent as manifest

in the plain language of the statute governing OV 3.

CONCLUSION

On the basis of the foregoing, we conclude that the

trial court did not err in assessing twenty-five points for

OV 3 and sentencing defendant to life imprisonment. We

therefore affirm the judgment of the Court of Appeals.22

Robert P. Young, Jr.
Clifford W. Taylor
Maura D. Corrigan
Stephen J. Markman

22
However, for the reasons stated in Justice
Cavanagh’s dissent, we do not agree with the Court of
Appeals analysis of MCL 777.21.

14

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 126025

DUANE HOUSTON,

Defendant-Appellant.
_______________________________

CAVANAGH, J. (dissenting).

I respectfully dissent from the majority’s misguided

interpretation of MCL 777.33. The internal inconsistency

in the majority’s reasoning is best illustrated by

comparing its statement that when a person dies, the person

has suffered an injury, see ante at 2, with its conclusion

that when a person dies, the defendant who caused the death

is subject to points for causing a “[l]ife threatening or

permanent incapacitating injury . . . .” MCL 777.33(1)(c).

While I agree that when a person dies, the person has

presumably suffered an injury, I do not agree that when a

person dies, the person has suffered a life-threatening or

permanently incapacitating injury. Rather, I believe that

the person has suffered an injury that ended the person’s

life, i.e., a life-ending injury, and that as such, twenty-
five points cannot be scored. Surprisingly, the majority’s

error is far removed from its assertion that its

interpretation is true to the statutory language.

I do not disagree that for offense variable (OV) 3,

the trial court must determine which characteristics of the

defendant’s crime apply and assess the highest number of

applicable points. I disagree, though, that § 33(1)(c)

applies to a situation in which a victim dies. In a

departure from the plain language of the statute, the

majority’s reading requires substituting “life-ending” for

“life-threatening.”

In fact, the prosecutor’s citations of dictionary

definitions support my view. The prosecutor states that

one dictionary defines “life threatening” as “potentially

fatal.” Another defines it as “very dangerous or serious

with the possibility of death as an outcome.” The

prosecutor advocates that an injury that is “potentially

fatal” is equivalent to an injury that is fatal. But an

ordinary reading of the statute’s phrase “[l]ife

threatening . . . injury” indicates a situation in which a

person receives an injury that threatens, but does not

take, the person’s life. Contrary to the majority, I would

decline to accept the prosecutor’s invitation to read

“life-threatening injury” as “life-ending injury.”

2

 Had the Legislature intended that a potentially fatal

injury include an injury actually causing death, it would

have said so. On the basis of the myriad examples in our

statutes in which the Legislature specifies that death is

included, such as in the phrase “injury or death,”1 I would

find precluded an argument that where the Legislature says

“[l]ife threatening or permanent incapacitating injury” it

also means “life-ending injury.” So it is not that

defendant assumes that only the “ultimate result” of his

criminal act can be considered in scoring OV 3, an argument

the majority attributes to him. See ante at 7. Rather,

defendant correctly argues that the injury he inflicted was

not the type for which points can be assessed under §

33(1)(c). Although a victim of a homicide presumably

suffers an injury, the type of injury the victim suffers is

a life-ending one, not a life-threatening or permanently

incapacitating one.

1
A cursory search through our statutes shows that the
Legislature is fully capable of using the term “injury or
death” when it so means. Such a search reveals 156
instances in which the Legislature used some variation of
the phrase “injury or death.” Even more compelling is the
Legislature’s use of some variation of the phrase “injury
or injury resulting in death” in several statutes. See,
e.g., MCL 38.67a(3), 38.1390(1), 418.141, and 418.375(3).
From this it is clear that when the Legislature intends to
encompass either an injury or a death, or a death resulting
from an injury, it is perfectly capable of stating what it
means.

3

 Moreover, I find unpersuasive the argument that had

the Legislature intended to exclude a situation in which a

victim dies from the “[l]ife threatening or permanent

incapacitating injury” condition specified by MCL

777.33(1)(c), it would have said so. I find more

persuasive the view that the Legislature likely did not

foresee an attempt to equate a potentially fatal injury

with a fatal one. Thus, it most likely found no need to do

anything other than preclude the scoring of one hundred

points for death when death is an element of the sentencing

offense.2 Quite simply, an injury that causes a death is

not a life-threatening or permanently incapacitating

injury. The latter, by its plain definition, presumes that

the person has survived the physical attack.

The majority’s reasoning results in an interesting

conundrum and illuminates that its position is not true to

the plain language of the statute or the Legislature’s

intent. Suppose a victim dies instantly.3 Can it truly be

said that the victim suffered a permanently incapacitating

2
Similarly, under MCL 777.33(1)(e), five points are
scored when “[b]odily injury not requiring medical
treatment occurred to a victim.” But MCL 777.33(2)(d)
instructs, “Do not score 5 points if bodily injury is an
element of the sentencing offense.”
3
It appears in this case that the victim did die
instantly.

4

or life-threatening injury? At what point between the

death-causing act and the death was the injury suffered?

If a permanently incapacitating or life-threatening

injury cannot be ascertained in the above example, which I

do not believe that it can, the majority would then

consider if perhaps § 33(1)(d) (“[b]odily injury requiring

medical treatment occurred to a victim”) or § 33(1)(e)

(“[b]odily injury not requiring medical treatment occurred

to a victim”) would apply. The majority asserts that “a

gunshot wound to the head is, quite obviously, a bodily

injury that does require medical treatment.” Ante at 8 n

13. As such, it concludes that scoring five points under

§ 33(1)(e) (“[b]odily injury not requiring medical

treatment occurred to a victim”) must be excluded. But in

an instantaneous death, no medical treatment is required.

Would the majority then believe that five points were

possible for an injury requiring no medical treatment?

Under this contorted analysis, a defendant’s OV 3 score

becomes a function of how quickly and painlessly the

defendant inflicted death on the victim. The more

“efficient” the defendant is, the lower number of points

the defendant will receive.

Certainly such an anomaly was not what the Legislature

intended. I find incredible that the Legislature intended

5

the courts to delve into these physiological, and even

philosophical, questions to reach a proper OV 3 score.

Rather, I find quite clear on the face of the statute that

the Legislature intended a certain number of points to

apply when a victim dies, and fewer points to apply when a

victim suffers various degrees of injury. Otherwise, there

would be no reason to differentiate so drastically between

the number of assessable points for death, one hundred, and

the number of points for life-threatening or permanently

incapacitating injury, twenty-five.4

Thus, it is clear to me that the plain language

employed by the Legislature in the statute concerning OV 3

compels a conclusion that points for a “[l]ife threatening

4
The majority states that where a victim does not die
instantly, I would hold that the victim still did not
suffer a “life threatening or permanent incapacitating
injury.” That is not entirely accurate. I would hold
that, for the purposes of scoring OV 3, which assesses
points for the severity of injury suffered, the victim
suffered the most severe injury possible: death. I believe
that it is obvious that the graduated scale of points
corresponds to a graduated scale of types of injury. I do
not believe that the Legislature designed OV 3 so that a
prosecutor could make an end-run around the exemption the
Legislature included that prevents scoring one hundred
points when a victim dies and death is an element of the
sentencing crime. In the context of the clear language and
purpose of the statute, I conclude that the Legislature did
not see the need to state the obvious, which is that when a
victim dies, points are not scored for the types of
nonfatal injuries enumerated in the statute. See ante at 9
n 16, 13.

6

or permanent incapacitating injury” are to be assessed only

when the injury fits that definition. If homicide is an

element of the sentencing offense, a defendant should not

be assessed any points for OV 3, even if the victim could

be considered to have suffered an “injury” before dying.

“Injury” is not synonymous with “life-threatening or

permanent incapacitating injury.” Thus, I conclude that

the trial court erroneously assessed twenty-five points

where defendant’s victim died and homicide was an element

of the sentencing offense. I would reverse the trial court

in that respect.

The Availability of a Life Sentence

If the twenty-five points that were erroneously

assessed under OV 3 were subtracted from defendant’s score,

defendant would fall within the II-B cell of the sentencing

grid contained in MCL 777.61, which specifies a minimum

sentence range of 162 to 270 months. After increasing the

higher number by twenty-five percent in accordance with the

second-offense habitual-offender statute, defendant’s range

becomes 162 to 337 months. Although the Legislature has

provided sentencing grids that delineate the appropriate

sentencing ranges for various combinations of OV and prior

record variable (PRV) scores in MCL 777.61 through 777.69,

7

it has not provided separate grids for sentences that are

increased when a defendant is an habitual offender.

In this case, the Court of Appeals determined that

because defendant’s upper minimum increased to 337 months

by virtue of the habitual-offender statute, a life sentence

was available. The Court of Appeals reasoned that other

cells having an upper minimum of more than three hundred

months offer the option of a life sentence, so the

Legislature must have intended that any time an upper

minimum is more than three hundred months, a life sentence

is available.

Because the Legislature chose not to provide

sentencing grids governing habitual-offender sentences, the

plain language of the habitual-offender sentencing

guidelines statute governs. The relevant statute, MCL

777.21, states:

(3) If the offender is being sentenced under
section 10, 11, or 12 of chapter IX, determine
the offense category, offense class, offense
variable level, and prior record variable level
based on the underlying offense. To determine
the recommended minimum sentence range, increase
the upper limit of the recommended minimum
sentence range determined under part 6 for the
underlying offense as follows:

(a) If the offender is being sentenced for a
second felony, 25%.

8

 Before applying the increase, defendant’s upper

minimum was 270 months. Two hundred seventy increased by

twenty-five percent is approximately 337. Three hundred

thirty-seven months is not life. I would conclude that if

the Legislature had intended that a life sentence be an

option, it would have so specified, either in the habitual-

offender sentencing guidelines statutes or in a separate

sentencing grid.

As such, I would decline to write the word “life” into

the sentencing grid cell at issue. The Court of Appeals

arbitrarily used three hundred months as a harbinger that a

life sentence was available. But it is not at all clear

that three hundred months is the dispositive guiding factor

because cell III-A, in which 270 months is the upper

minimum, allows for a life sentence. A more rational

explanation is that the Legislature included a life option

where it believed that the combined OV and PRV scores

merited it. For instance, when a defendant amasses one

hundred or more points in OVs, a life sentence is an

option, even where the upper minimum is less than three

hundred months. In that cell, III-A, the range is 162 to

270 months or life. And in cell I-C, where the OV total is

relatively low, zero to forty-nine points, and the PRV

level is zero to twenty-four points, the sentence range is

9

the same as that in the III-A cell, except that life is not

an option. Thus, it appears that the availability of a

life sentence is tied to the OV and PRV score totals,

rather than the number of months represented by the upper

minimum.

Here, neither defendant’s OV nor PRV score changed by

virtue of increasing his upper limit pursuant to the

habitual-offender sentencing guidelines statute.

Therefore, because a life sentence is not an option for

defendants having the OV and PRV scores reflected by cell

II-B, absent an articulated upward departure, a life

sentence is not available even if the upper minimum is

increased to reflect a defendant’s habitual-offender

status.

Thus, I would hold that in instances where a victim

dies and homicide is an element of the sentencing offense,

the proper score for OV 3 is zero points. Further, I would

hold that if a defendant’s upper minimum is increased

pursuant to the habitual-offender sentencing guidelines

statute, whether a life sentence is available depends on

whether it is denoted in the legislative sentencing grids

and not on the number of months in a defendant’s upper

minimum sentence. As such, I would reverse the decision of

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the Court of Appeals and remand this case to the trial

court for the appropriate resentencing.

Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly

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