Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 29, 2004
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 122271
RICHARD A. KIMBLE,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider whether
defendant is entitled to resentencing where the trial court
improperly scored offense variable 16 (OV 16), MCL
777.22(1). Defendant’s minimum sentence, as a result,
exceeds the appropriate sentencing guidelines range, and
the trial court did not articulate a substantial and
compelling reason for this departure. Defendant did not
argue that OV 16 should not be scored until filing his
application for leave to appeal with the Court of Appeals.
The Court of Appeals concluded that defendant is entitled
to resentencing because the scoring of OV 16 was plain
error. We affirm the decision of the Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
Defendant shot and killed the victim so he could steal
the car she was driving for its wheel rims. Following a
bench trial, defendant was convicted of second-degree
murder and possession of a firearm while committing or
attempting to commit a felony (felony-firearm). The trial
court sentenced defendant to consecutive prison terms of
thirty to seventy years for the second-degree murder
conviction and two years for the felony-firearm conviction.
The issue here pertains only to defendant’s sentence for
second-degree murder.
At sentencing, defendant argued that OV 16, which
considers the “property obtained, damaged, lost or
destroyed,” should be scored at one point because the
stolen car had a value of $200 or more, but not more than
$1,000, while the prosecutor argued that OV 16 should be
scored at five points because the stolen car had a value of
$1,000 or more, but not more than $20,000. The trial court
scored OV 16 at five points. Without the five points, the
appropriate minimum sentence range would have been 180 to
300 months, but, with the five points, the minimum sentence
2
range was 225 to 375 months.1 The trial court sentenced
defendant to a minimum term of 360 months for second-degree
murder.
Defendant appealed, arguing that OV 16 should not even
have been scored because it is only to be scored in crimes
against the person if the offense is home invasion. MCL
777.22(1). The prosecutor agreed that it should not have
been scored, but argued that defendant waived the error.
The Court of Appeals unanimously affirmed defendant’s
convictions, but, in a split decision, remanded for
resentencing.2 We granted the prosecutor’s application for
leave to appeal and held defendant’s cross-application in
abeyance.3
II. STANDARD OF REVIEW
This case presents an issue involving the
interpretation of a statute and a court rule, which is a
question of law that we review de novo. People v Petit,
466 Mich 624, 627; 648 NW2d 193 (2002).
1
If OV 16 were scored at one point, as defendant
argued at sentencing, the minimum sentence range would have
been 180 to 300 months.
2
252 Mich App 269; 651 NW2d 798 (2002).
3
468 Mich 870 (2003).
3
III. ANALYSIS
Under the statutory sentencing guidelines, the trial
court must score the applicable offense and prior record
variables to determine the appropriate range for the
minimum sentence. When the sentencing offense is a “crime
against a person,” as in this case, OV 16 is to be scored
only where the sentencing offense is home invasion or
attempted home invasion. MCL 777.22(1). The sentencing
offense in this case is second-degree murder. Therefore,
the trial court clearly erred in scoring OV 16. Although
defendant argued at sentencing that OV 16 should be scored
at one point instead of five points, defendant did not
raise the argument that OV 16 should not have been scored
at all until he filed his application for leave to appeal
with the Court of Appeals. An objection based on one
ground is usually considered insufficient to preserve an
appellate attack based on a different ground. People v
Bushard, 444 Mich 384, 390 n 4; 508 NW2d 745 (1993).
MCL 769.34(10) provides:
If a minimum sentence is within the
appropriate guidelines sentence range, the court
of appeals shall affirm that sentence and shall
not remand for resentencing absent an error in
scoring the sentencing guidelines or inaccurate
information relied upon in determining the
defendant’s sentence. A party shall not raise on
appeal an issue challenging the scoring of the
sentencing guidelines or challenging the accuracy
4
of information relied upon in determining a
sentence that is within the appropriate
guidelines sentence range unless the party has
raised the issue at sentencing, in a proper
motion for resentencing, or in a proper motion to
remand filed in the court of appeals.
The Court of Appeals majority concluded that § 34(10)
precludes appellate review if the sentence is within the
appropriate guidelines range and the party failed to raise
the issue at sentencing, in a motion for resentencing, or
in a motion to remand. However, § 34(10) does not preclude
appellate review if the sentence is outside the appropriate
guidelines range, even if the party failed to raise the
issue at sentencing, in a motion for resentencing, or in a
motion to remand. Accordingly, the majority concluded that
appellate review is not precluded in this case because the
sentence here is outside the appropriate guidelines range.
The Court of Appeals dissent, on the other hand,
concluded that a scoring error resulting in a sentence that
is outside the appropriate guidelines sentence range is not
appealable under § 34(10) unless it was raised at
sentencing, in a motion for resentencing, or in a motion to
remand. By contrast, a sentence that is outside the
appropriate guidelines sentence range because inaccurate
information was relied upon is appealable even if it was
5
not raised at sentencing, in a motion for resentencing, or
in a motion to remand.
We agree with the Court of Appeals majority that there
is no basis in the statute for treating these two types of
challenges differently. We also agree with the Court of
Appeals majority that, pursuant to § 34(10), 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. However, if the
sentence is within the appropriate guidelines sentence
range, it is only appealable if there was a scoring error
or inaccurate information was relied upon in determining
the sentence and the issue was raised at sentencing, in a
motion for resentencing, or in a motion to remand.
Under the Court of Appeals dissent’s view and the view
of the dissenting justices of this Court, a scoring error
that results in a sentence that is outside the appropriate
guidelines sentence range would not be appealable unless it
was preserved in one of the ways listed in the second
sentence of § 34(10). We respectfully disagree. The first
sentence of § 34(10) provides that a sentence that is
within the appropriate guidelines sentence range is not
appealable unless there was a scoring error or inaccurate
6
information was relied upon. The necessary corollary of
this statement is that a sentence that is outside the
appropriate guidelines sentence range is appealable.
The second sentence of § 34(10) provides that, even
though a sentence that is within the appropriate guidelines
sentence range can be appealed if there was a scoring error
or inaccurate information was relied upon, it can only be
appealed if the issue was raised at sentencing, in a motion
for resentencing, or in a motion to remand. In other
words, the second sentence simply describes how a party
must preserve a challenge to a sentence that is within the
appropriate guidelines sentence range; it says nothing
about a challenge to a sentence that is outside the
appropriate guidelines sentence range.4
4
The dissenting justices argue that the first and
second sentences of the statute address two totally
different issues: the first sentence addresses under what
circumstances the Court of Appeals may remand for
resentencing, while the second sentence addresses under
what circumstances a party may appeal. Post at 4. The
first sentence states that “the court of appeals shall
affirm that sentence and shall not remand for resentencing
. . . .” § 34(10). The second sentence states that “[a]
party shall not raise on appeal . . . .” Id. If the Court
of Appeals must affirm the sentence, pursuant to the first
sentence, the appellant will not enjoy relief. Likewise,
if the appellant is unable to raise appellate issues,
pursuant to the second sentence, the appellant will not
enjoy relief. Although these sentences are worded
differently, they both pertain to the same issue, namely,
(continued…)
7
Because defendant’s sentence is outside the
appropriate guidelines sentence range, his sentence is
appealable under § 34(10), even though his attorney failed
to raise the precise issue at sentencing, in a motion for
resentencing, or in a motion to remand. However, because
defendant failed to raise the argument that OV 16 is not
applicable at all until his application for leave to appeal
with the Court of Appeals, defendant must satisfy the plain
error standard set forth in People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999). That is, defendant must show
that
1) error . . . occurred, 2) the error was plain,
i.e., clear or obvious, 3) and the plain error
affected substantial rights. The third
requirement generally requires a showing of
prejudice, i.e., that the error affected the
outcome of the lower court proceedings. [Id. at
763.]
In addition, defendant must show that the “error resulted
in the conviction of an actually innocent defendant” or
that the “error ‘seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings
. . . .’” Id. (citation omitted).
(…continued)
the circumstances under which a person may obtain
sentencing relief.
8
First, as explained above, there was clearly error in
this case and the prosecutor concedes that the trial court
erred in scoring OV 16. Second, the error was plain and
the prosecutor concedes that the error was plain. MCL
777.22(1) could not be more clear that OV 16 is simply not
to be scored where the sentencing offense is second-degree
murder. Third, defendant was clearly prejudiced by this
error. As a result of the error, defendant received a
sentence five years in excess of that permitted by the
properly scored sentencing guidelines. Finally, this error
“seriously affect[ed] the fairness, integrity [and] public
reputation of judicial proceedings.” Id. It is difficult
to imagine what could affect the fairness, integrity and
public reputation of judicial proceedings more than sending
an individual to prison and depriving him of his liberty
for a period longer than authorized by the law.5
Accordingly, defendant is entitled to resentencing under §
34 (10).
5
The dissenting justices conclude that “the scoring
error does not qualify as plain error that seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings . . . .” Post at 5. We respectfully
disagree, and believe that sending a person to prison for a
term several years in excess of what is permitted by the
law sufficiently constitutes a plain error that seriously
affects the fairness, integrity or public reputation of a
judicial proceeding.
9
The Court of Appeals dissent concluded that even if §
34(10) does not preclude relief, MCR 6.429(C) does. MCR
6.429(C) provides:
A party may not raise on appeal an issue
challenging the accuracy of the presentence
report or the scoring of the sentencing
guidelines unless the party has raised the issue
at or before sentencing or demonstrates that the
challenge was brought as soon as the inaccuracy
could reasonably have been discovered. Any other
challenge may be brought only by motion for
relief from judgment under subchapter 6.500.
We agree with the Court of Appeals dissent that, under this
court rule, a scoring error is not appealable unless it was
raised at or before sentencing, regardless of whether the
resulting sentence is inside or outside the appropriate
guidelines sentence range, except by way of a motion for
relief from judgment under subchapter 6.500.
Although defendant did not raise the precise scoring
error at or before sentencing, defendant is clearly
entitled to relief under MCR 6.508(D)(3). In order to be
entitled to relief under MCR 6.508(D)(3), both “good cause”
and “actual prejudice”6 must be established. “Good cause"
6
Pursuant to MCR 6.508(D)(3)(b)(iv), with reference to
a sentence, actual prejudice means that the sentence is
invalid. Here, the sentence is invalid because it is five
years in excess of the properly scored sentencing
guidelines and devoid of any finding of substantial and
(continued…)
10
can be established by proving ineffective assistance of
counsel. People v Reed, 449 Mich 375, 378; 535 NW2d 496
(1995). To demonstrate ineffective assistance, it must be
shown that defendant’s attorney’s performance fell below an
objective standard of reasonableness and this performance
prejudiced him. People v Pickens, 446 Mich 298, 338; 521
NW2d 797 (1994). At oral argument, the prosecutor conceded
that defendant would be entitled to relief on the basis of
ineffective assistance of counsel and defendant’s appellate
counsel, who was also his trial counsel, admitted that OV
16 was scored where it obviously should not have been, that
he failed to bring this error to the court’s attention, and
that this failure ultimately resulted in a minimum sentence
that exceeds the upper limit of the appropriate guidelines
sentence range by five years. Under these circumstances,
it is clear that both “good cause” and “actual prejudice”
have been established.
Because we find that defendant is entitled to relief
under both the statute and the court rule, it is
(…continued)
compelling reasons to deviate from the properly scored
guidelines range.
11
unnecessary for us to decide whether the court rule or the
statute controls.7
IV. Conclusion
We affirm the decision of the Court of Appeals and
remand this case to the circuit court for resentencing.
Stephen J. Markman
Michael F. Cavanagh
Marilyn Kelly
Clifford W. Taylor
7
Effective immediately, this Court has amended MCR
6.429(C) to conform with MCL 769.34(10).
12
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 122271
RICHARD A. KIMBLE,
Defendant-Appellee.
_______________________________
WEAVER, J. (concurring in part and dissenting in part)
I concur in the majority’s conclusion that a scoring
error is not appealable under MCR 6.429(C) as currently
drafted unless it was raised at or before sentencing,
regardless of whether the resulting sentence was inside or
outside the appropriate guidelines sentence range.
However, I dissent from the majority’s interpretation of
MCL 769.34(10) and its order remanding this case for
resentencing on the basis of MCR 6.508(D)(3).
I agree with the Court of Appeals dissent by Judge
GRIFFIN and would hold that MCL 769.34(10) requires that
defendant preserve alleged errors in the scoring of offense
variables and that the plain error doctrine does not
justify reversal of defendant’s conviction in this case. I
would affirm defendant’s sentence.
It is undisputed that offense variable 16 (OV 16) is
not applicable to this case. The question before the Court
is whether defendant can challenge the scoring of the
offense variable when he failed to raise the issue at
sentencing, in a motion for resentencing, or in a motion to
remand filed in the Court of Appeals. Regarding this
question, MCL 769.34(10) provides:
If a minimum sentence is within the
appropriate guidelines sentence range, the court
of appeals shall affirm that sentence and shall
not remand for resentencing absent an error in
scoring the sentencing guidelines or inaccurate
information relied upon in determining the
defendant’s sentence. A party shall not raise on
appeal an issue challenging the scoring of the
sentencing guidelines or challenging the accuracy
of information relied upon in determining a
sentence that is within the appropriate
guidelines sentence range unless the party has
raised the issue at sentencing, in a proper
motion for resentencing, or in a proper motion to
remand filed in the court of appeals.
The first sentence of the statute governs when the
Court of Appeals may remand for resentencing when a minimum
sentence is within the appropriate guidelines sentence
range. Those circumstances are limited to where there is
an “error in scoring the sentencing guidelines or
inaccurate information relied upon in determining the
defendant’s sentence.”
2
The second sentence of the statute shifts the focus to
when a party is permitted under MCL 769.34(10) to raise on
appeal an issue “challenging the scoring of the sentencing
guidelines or the accuracy of information relied upon in
determining a sentence that is within the appropriate
guidelines sentence range . . . .” The second sentence
provides that neither issue can be raised “unless the party
has raised the issue at sentencing, in a proper motion for
resentencing, or in a proper motion to remand filed in the
court of appeals.”
This case involves a scoring error that caused a
sentence to fall outside the appropriate guidelines
sentence range. Thus, we consider whether the Legislature
intended to limit appeals of scoring errors regardless of
whether the sentence was within or outside the appropriate
guidelines sentence range.
The majority concludes that there is no basis in the
statute to conclude that the Legislature intended to limit
appeals of scoring errors differently from challenges to
the accuracy of the information relied on in determining a
sentence. The majority bases this conclusion, however, on
its interpretation of the first sentence of the statute,
not the second sentence at issue in this case. The
majority reasons:
3
The first sentence of §34(10) provides that
a sentence that is within the appropriate
guidelines sentence range is not appealable
unless there is a scoring error or inaccurate
information is relied upon. The necessary
corollary of this statement is that a sentence
that is outside the appropriate range is
appealable. [Ante at 6-7 (emphasis in original).]
I respectfully disagree with the majority’s logic. As
noted above, the first sentence of the statute addresses
when the Court of Appeals may remand for resentencing, not
when a party may appeal. The first sentence allows the
Court of Appeals to remand for resentencing scoring errors
if a minimum sentence is within the appropriate guidelines
sentence range. However, the plain language of the second
sentence reveals that the only scoring errors that the
Legislature intended the Court of Appeals to review at all
are those that were preserved by a party “at sentencing, in
a proper motion for resentencing, or in a proper motion to
remand filed in the court of appeals.” As reasoned by
Judge GRIFFIN’S Court of Appeals dissent in part:
There are two disjunctive phrases—
“challenging the scoring of the sentencing
guidelines” and the “challenging the accuracy of
information relied upon in determining a sentence
that is within the appropriate guidelines
sentence range”—that establish two distinct and
separate situations to which the statute applies.
Only the former circumstances apply herein, where
defendant is “challenging the scoring of the
sentencing guidelines . . . .” . . .
4
In the present case, the alleged scoring
error issue has been forfeited because defendant
failed to “raise[] the issue at sentencing, in a
proper motion for resentencing, or in a proper
motion to remand filed in the court of appeals.”
MCL 769.34(10). [252 Mich App 285-286.]
Thus, I would hold that pursuant to MCL 769.34(10),
defendant cannot challenge the scoring of OV 16 because he
did not raise the issue as required by the statute. I also
agree with Judge GRIFFIN’S conclusion that the scoring error
does not qualify as plain error that seriously affected the
fairness, integrity or public reputation of judicial
proceedings under People v Carines, 460 Mich 750; 597 NW2d
130 (1999).
The majority also premises its decision to order
resentencing on its conclusion sua sponte that defendant is
entitled to relief from judgment under MCR 6.508(D)(3).
The majority’s eagerness to serve as advocate, trial judge,
and appellate court is unnecessary and inappropriate.
First, it cannot be assumed that defendant will file a
motion for relief from judgment. Second, there is no
guarantee that defendant would carry the burden of
establishing entitlement to the relief requested under MCR
6.508(D). Without the benefit of argument and briefing, I
would not step into the shoes of the trial court and decide
an issue that has not even been raised by a party. Third,
5
the possibility that defendant could successfully file a
motion for relief from judgment does not necessitate
concluding that defendant would in this case, because the
defendant is free to file such a motion regardless of how
the question of statutory interpretation is resolved.
In conclusion, I concur in the majority conclusion
that a scoring error is not appealable under MCR 6.429(C)
as currently drafted unless it was raised at or before
sentencing, regardless whether the resulting sentence was
inside or outside the appropriate guidelines sentence
range.
However, I dissent from the majority’s interpretation
of MCL 769.34(10) and its order remanding this case for
resentencing on the basis of MCR 6.508(D)(3) and Carines.
I would hold that MCL 769.34(10) requires that defendants
preserve alleged errors in the scoring of offense variables
and that the plain error doctrine requires no other result.
I would affirm defendant’s sentence.
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
6