People v. Gloster
People v. Gloster
Opinion of the Court
In this case, we consider whether a sentencing court may assess a defendant 15 points for “predatory conduct” under Offense Variable (OV) 10 (exploitation of a vulnerable victim), MCL 777.40, solely on the basis of the predatory conduct of a defendant’s co-offenders. We conclude that it may not. In direct contrast to other OVs, MCL 777.40 contains no language directing a court to assess a defendant the same number of points as his co-offenders in multiple-offender situations. We decline to import such language into OV 10, as it is a well-established rule of statutory construction that this Court will not read words into a statute that the Legislature has excluded.
The trial court assessed 15 points for OV 10 solely on the basis of the predatory conduct of defendant’s co-offenders. Defendant appealed this decision, but the Court of Appeals declined to address “whether a trial court may consider the conduct of a co-offender when scoring OV 10 . . . .”
I. FACTS AND PROCEEDINGS
This case arises from a robbery that occurred in Hamtramck on October 20, 2012. On that date, defendant drove four men, including Marvin Graham and Calvin Gloster, defendant’s brother, to Hamtramck. Graham attacked the victim outside the Polish Market. According to surveillance footage, Graham and Calvin Gloster stood outside the market and watched a man walking alone, two individuals, and a group of children pass by before Graham attacked the victim, a woman who was walking alone. In an attempt to steal the woman’s necklace, Graham hit her in the back of her head and knocked her to the ground. When onlookers intervened, Graham and Calvin Gloster fled, but not before Calvin Gloster shot one of the intervening onlookers with a pistol.
During the robbery, defendant was parked near the Polish Market. After Graham and Calvin Gloster fled, defendant picked the men up, which required him to circle around the block to find Graham, and drove them out of the area. After he was arrested by police and interrogated about his participation in the robbery, defendant admitted that he had acted as the getaway driver in the robbery. Specifically, he admitted driving the men to the area and that they were “trying to get some money, simple as that.” He also admitted driving
The prosecution charged defendant as an aider and abettor to armed robbery under MCL 750.529 and unarmed robbery under MCL 750.530. After deliberation, the jury convicted defendant of aiding and abetting armed robbery.
The trial court sentenced defendant to 85 months to 20 years in prison. At sentencing, the parties disagreed about whether OV 10 should be scored at 15 points for predatory conduct. The court agreed with the prosecution that it should, ruling that the score was appropriate because, while defendant waited in the car, the other two perpetrators waited for an appropriate victim.
Defendant appealed the trial court’s decision in the Court of Appeals, arguing in part that it was erroneous to base defendant’s OV 10 score on his co-offenders’ conduct. Instead, defendant claimed, OV 10 should be scored only for the individual defendant’s conduct. He also argued that his co-offenders’ conduct was not predatory in nature under existing caselaw. The Court of Appeals affirmed the trial court’s scoring in an unpublished opinion per curiam, concluding that “[d]e-fendant aided and abetted the commission of an offense that involved the exact sort of‘predatory conduct’ OV 10 is designed to punish.”
whether the defendant was properly assigned 15 points for offense variable (OV) 10, MCL 777.40, for predatory conduct, and in particular, whether the scoring of OV 10 was proper based on the defendant’s own conduct, or alternatively, based on the conduct of the defendant’s accomplices. See MCL 767.39; cf. People v Hunt, 290 Mich App 317, 325-326 [810 NW2d 588] (2010) (conviction not based on aid and abetting), cited in People v Hardy, 494 Mich 430, 442 n 32 [835 NW2d 340] (2013).[8 ]
II. STANDARD OF REVIEW
A trial court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.
III. ANALYSIS
OV 10, governed by MCL 777.40, provides in relevant part:
(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense variable 10 by determining which of*205 the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) Predatory conduct was involved.15 points
(b) The offender exploited a victim’s physical disability, mental disability, youth or agedness, or a domestic relationship, or the offender abused his or her authority status . 10 points
(c) The offender exploited a victim by his or her difference in size or strength, or both, or exploited a victim who was intoxicated, under the influence of drugs, asleep, or unconscious.5 points
(d) The offender did not exploit a victim’s vulnerability .0 points
(2) The mere existence of 1 or more factors described in subsection (1) does not automatically equate with victim vulnerability.
As used in this section, “ ‘predatory conduct’ means preoffense conduct directed at a victim, or a law enforcement officer posing as a potential victim, for the primary purpose of victimization.”
MCL 777.40 contains no language directing a court to assess a defendant points for OV 10 on the basis of conduct by a defendant’s co-offenders in multiple-offender situations. This is in direct contrast to OVs 1, 2, and 3, all of which specifically direct a court to assign a defendant the same number of points that all offenders are assessed in multiple-offender cases. OV 1 (aggravated use of a weapon) provides that “[i]n multiple offender cases, if 1 offender is assessed points for the presence or use of a weapon, all offenders shall be
“Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute, and then, on the basis of that assumption, apply what is not there.”
We are not persuaded by the prosecution’s claim that a defendant may have points assessed under OV 10 solely on the basis of the conduct of his or her co-offenders because the language simply requires that “[p]redatory conduct was involved” without specifying that the predatory conduct must have been the defendant’s.
Applying this analysis to the instant case, we conclude that the trial court erred by assessing defendant 15 points for OV 10 because the record indicates that the court based its assessment of points entirely on the conduct of defendant’s co-offenders. That is, the trial court supported its score by explaining that two of the people defendant drove to Hamtramck “went out to the corner to watch for an appropriate victim. . . .” The trial court thus considered only the conduct of defendant’s co-offenders in watching for an appropriate victim when it assessed defendant 15 points for predatory conduct. For the reasons described above, this was in error.
IV. CONCLUSION
We reverse in part the judgment of the Court of Appeals and remand this case to the trial court for further proceedings not inconsistent with our holding that a sentencing court may not assess a defendant 15 points for predatory conduct under OV 10 solely on the basis of the predatory conduct of the defendant’s co-offenders. In all other respects, leave to appeal is denied because we are not persuaded that this Court should review the remaining question presented.
People v McIntire, 461 Mich 147, 152-163; 599 NW2d 102 (1999).
People v Gloster, unpublished opinion per curiam of the Court of Appeals, issued December 30, 2014 (Docket No. 316553), p 4 n 2.
People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
Gloster, unpub op at 3.
Id. at 4 n 2.
MCR 7.305(H)(1).
People v Gloster, 498 Mich 910 (2015).
Hardy, 494 Mich at 438.
MCL 777.40(3)(a), as amended by 2014 PA 350. At the time this case arose, MCL 777.40(3)(a) did not include the reference to “a law enforcement officer posing as a potential victim.”
MCL 777.31(2)(b).
MCL 777.32(2).
MCL 777.33(2)(a).
Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993).
The Court of Appeals reached a similar conclusion in People v Hunt, 290 Mich App 317; 810 NW2d 588 (2010). That case pertained to OV 7, which at that time directed a court to assess a defendant 50 points when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense!.]” MCL 777.37(l)(a), as amended by 2002 PA 137. In Hunt, the trial court assessed defendant 50 points for OV 7 even though the record indicated that his codefendant alone engaged in the behavior that led to the scoring for sadism, torture, or excessive brutality. The Court of Appeals reversed the trial court’s scoring decision, commenting:
*207 [W]hile defendant was present and armed during the commission of the crimes here, he did not himself commit, take part in, or encourage others to commit acts constituting “sadism, torture, or excessive brutality” under OV 7. Moreover, unlike OV 1, OV 2, and OV 3, OV 7 does not state that “[i]n multiple offender cases, if 1 offender is assessed points for [the applicable behavior or result], all offenders shall be assessed the same number of points.” For OV 7, only the defendant’s actual participation should be scored. [Hunt, 290 Mich App at 325-326 (citations omitted) (second and third alterations in original).]
See Byker v Mannes, 465 Mich 637, 646-647; 641 NW2d 210 (2002) (“It is a well-established rule of statutory construction that this Court will not read words into a statute.”).
MCL 777.40(1)(a).
See MCL 777.31(2)(b); MCL 777.33(2)(a).
State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002) (“Courts must give effect to every word, phrase,
MCL 777.46(2)(a).
MCL 777.41(2)(a) (emphasis added).
MCL 777.41(2)(b) (emphasis added).
In the alternative, the prosecution argues that defendant should have 15 points assessed under OV 10 for aiding and abetting his co-offenders’ predatory conduct. We decline to address this argument given that the trial court did not score OV 10 under an aiding-and-ahetting theory. Instead, we leave it to the trial court on remand to determine whether it is appropriate to consider this alternative argument.
Hardy, 494 Mich at 438.
Reference
- Full Case Name
- PEOPLE v. GLOSTER
- Cited By
- 40 cases
- Status
- Published