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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