People v. Kimble
People v. Kimble
Opinion of the Court
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.
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.
II. STANDARD OF REVIEW
This case presents an issue involving the interpretation of a statute and a court rule, which is a question of
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.
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
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.
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
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
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.
rv CONCLUSION
We affirm the decision of the Court of Appeals and remand this case to the circuit court for resentencing.
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
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).
Concurring Opinion
(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 (OV16) 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*316 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:
*317 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 311 (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.]
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
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