People v. Cannon

749 N.W.2d 257, 481 Mich. 152
Michigan Supreme Court·Decided June 4, 2008·No. Docket 131994·Published·Cited by 203 cases

Opinions

Kelly, J.

At issue in this case is whether the trial court properly assessed 15 points for predatory conduct under offense variable ten (OV 10) when it calculated defendant’s sentencing guidelines range.1 We conclude that both lower courts failed to apply the correct test in scoring OV 10. Therefore, we remand the case to the trial court to reconsider whether to assess 15 points for predatory conduct under OV 10 and to resentence defendant if it assesses no points.

FACTS AND PROCEDURAL HISTORY

Defendant entered a Burger King restaurant in the city of Saginaw. His codefendants, Maurice Mayes and Larry Hibler, immediately followed him inside. At the time, there were four employees on duty and no customers in the restaurant. Mayes and Hibler went into the bathroom while defendant approached the counter. Defendant, appearing nervous, stood near the counter, but did not place an order. Mayes and Hibler then emerged from the bathroom with bandannas covering their faces. They jumped over the counter and attempted to gather the restaurant employees into one place. Hibler displayed a gun.

Defendant did not appear surprised by their actions. He moved closer to the front of the restaurant, pulled a hood over his head, and began pacing back and forth, looking out the windows. While Mayes and Hibler [155] ordered the restaurant manager to open the safe and the cash registers and removed the cash, one employee escaped into the freezer and called the police. Defendant, Mayes, and Hibler fled as the police approached. All three were apprehended shortly afterwards. In the parking lot of a nearby business, the police found a stolen pickup truck with an open door and three coats in the back.

Defendant was convicted of conspiracy to commit armed robbery.2 When the guidelines range was being calculated at sentencing, the prosecutor asserted that 15 points should be assessed under OV 10 for engaging in predatory conduct. The prosecutor argued that the predatory conduct consisted of waiting in a truck at a neighboring business until no customers remained in the restaurant, then committing the robbery. According to the prosecutor, the three men had targeted the restaurant and planned their actions to victimize the restaurant employees. Defense counsel objected, arguing that these actions did not constitute predatory conduct under the statute. The trial court agreed to assess points for predatory conduct. It reasoned that defendant’s conduct was predatory because defendant could have signaled Mayes and Hibler to stop the robbery.

On appeal, the Court of Appeals affirmed that decision:

The evidence suggests that defendant and his coconspirators selected a time, place, and manner in which to commit this robbery to maximize the vulnerability of the victims and minimize their chances of getting caught. The trial court heard evidence that the offenders planned the crime in advance, parked their car alongside the restaurant in a separate parking lot where they would not be seen, [156] selected defendant to act as the lookout, and waited until the restaurant was devoid of customers so that the employees were alone, in order to facilitate the commission of the offense. Accordingly, defendant’s acts satisfied the criteria for predatory conduct within the meaning of the statute. Defendant thus fails to show that the trial court commit [sic] clear error in scoring fifteen points against defendant on OV 10. [People v Cannon, unpublished opinion per curiam of the Court of Appeals, issued July 25, 2006 (Docket No. 259532), p 5.]

We granted leave to appeal to consider the scope of predatory conduct as defined in OV 10 and whether the trial court properly assessed 15 points for predatory conduct in this case.

EXPLOITATION OF A VULNERABLE VICTIM IS A PREREQUISITE TO THE ASSESSMENT OF POINTS UNDER OV 10

The proper interpretation and application of the legislative sentencing guidelines are questions of law, which this Court reviews de novo.3 Our analysis begins with the language of MCL 777.40:

(1) Offense variable 10 is exploitation of a vulnerable victim. Score offense variable 10 by determining which of 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
[157] (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.
(3) As used in this section:
(a) “Predatory conduct” means preoffense conduct directed at a victim for the primary purpose of victimization.
(b) “Exploit” means to manipulate a victim for selfish or unethical purposes.
(c) “Vulnerability” means the readily apparent susceptibility of a victim to injury, physical restraint, persuasion, or temptation.
(d) “Abuse of authority status” means a victim was exploited out of fear or deference to an authority figure, including, hut not limited to, a parent, physician, or teacher.

Reading this statute as a whole,4 we conclude that the central subject is the assessment of points for the exploitation of vulnerable victims. The statute applies when exploitive conduct, including predatory conduct, is at issue. The statute does not use the word “vulnerable” in the subsections directing the assessment of points for particular circumstances. Nor does the subsection specifically directing the assessment of 15 points for predatory conduct refer to exploitation.

However, the Legislature’s focus is clearly stated by subsection 1, which provides that “[o]ffense variable 10 is exploitation of a vulnerable victim.”5 The intent to assess points for the exploitation of vulnerable victims [158] is also demonstrated by the fact that the statute assigns zero points when the “offender did not exploit a victim’s vulnerability.”6

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People v. Cannon, 749 N.W.2d 257, 481 Mich. 152 (Mich. 2008).

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