People v. Gloster

880 N.W.2d 776, 499 Mich. 199
CourtMichigan Supreme Court
DecidedMay 24, 2016
DocketDocket No. 151048
StatusPublished
Cited by40 cases

This text of 880 N.W.2d 776 (People v. Gloster) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gloster, 880 N.W.2d 776, 499 Mich. 199 (Mich. 2016).

Opinion

ZAHRA, J.

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.1

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 . . . .”2 Instead, the Court of Appeals concluded that the trial court’s scoring of OV 10 was supported by defendant’s own conduct.3 However, because the trial court did not itself find that defendant’s own conduct was predatory in nature, we conclude that the Court of Appeals failed to review the trial court’s findings for clear error as required by People v Hardy.4 Accordingly, we reverse in part the judgment of the [202]*202Court 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.

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 [203]*203the men out of the area following their failed attempt to obtain the victim’s necklace.

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.”5 In a footnote, the panel dismissed defendant’s argument that his OV 10 score was based solely on his co-offenders’ conduct. To the contrary, the panel concluded that “the record demonstrates that the trial court scored defendant for his conduct—specifically, his role in selecting a vulnerable victim.”6

[204]*204Defendant sought leave to appeal in this Court. We directed the Clerk of the Court to schedule oral argument on whether to grant the application or take other action.7 We specifically requested that the parties address

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.9 ‘Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.”10

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]*205the 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.”11

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Bluebook (online)
880 N.W.2d 776, 499 Mich. 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gloster-mich-2016.