People v. Kimble

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.

*308At 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 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 *309law that we review de novo. People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002).

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 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.

*310The 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 resentenc-ing, 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 appeal-able even if it was 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 *311relied 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 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

*312Because defendant’s sentence is outside the appropriate guidelines sentence range, his sentence is appeal-able 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).

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 *313that 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).

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 *314cause” and “actual prejudice”6 must be established. “Good cause” 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 unnecessary for us to decide whether the court rule or the statute controls.7

rv CONCLUSION

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

*315Cavanagh, Kelly, and Taylor, JJ., concurred with Markman, J.

If OV 16 were scored at one point, as defendant argued at sentencing, the minimum sentence range would have been 180 to 300 months.

252 Mich App 269; 651 NW2d 798 (2002).

468 Mich 870 (2003).

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 317. 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 *312affirm, 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, the circumstances under which a person may obtain sentencing relief

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 318. 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.

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 compelling reasons to deviate from the properly scored guidelines range.

Effective immediately, this Court has amended MCR 6.429(0 to conform with MCL 769.34(10).