People v. Kimble

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

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).

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:

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

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

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…)

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.

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.

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…)

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.

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).

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.”

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:

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 . . . .” . . .

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,

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.

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