People v. Jamison

807 N.W.2d 427, 292 Mich. App. 440
CourtMichigan Court of Appeals
DecidedApril 26, 2011
DocketDocket No. 297154
StatusPublished
Cited by51 cases

This text of 807 N.W.2d 427 (People v. Jamison) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Jamison, 807 N.W.2d 427, 292 Mich. App. 440 (Mich. Ct. App. 2011).

Opinion

PER CURIAM.

A jury convicted defendant, Pecóla Jami-son, of assault with intent to do great bodily harm less than murder1 and felony-firearm.2 The trial court sentenced Jamison to a prison term of 1 to 10 years for assault with intent to do great bodily harm less than murder and the mandatory consecutive 2-year prison term for felony firearm. Jamison now appeals as of right. We vacate Jamison’s sentence and remand to the trial court for resentencing.

I. FACTS

Jamison and her boyfriend, Alexis Jenkins, dated from sometime in 2006 to the spring or early summer of 2007. In the winter of 2007, they engaged in consensual sexual relations, but Jenkins chose to end the relationship in early January 2008. Jenkins testified that Jami-son was not happy about the breakup and that he changed his telephone number so that Jamison could not contact him. After that, Jenkins saw Jamison at a [442]*442social gathering in March 2008 and then several times in traffic before a May 3, 2009, encounter.

Jenkins testified that on May 3, 2009, at approximately 4:00 p.m., he made eye contact with Jamison while they passed each other in traffic. Shortly thereafter, Jenkins noticed Jamison’s vehicle in his rearview mirror. He testified that she was driving the vehicle erratically, swerving back and forth in the lane. Jenkins testified that Jamison’s vehicle was so close to his that he had to either speed up or get out of her way to avoid a collision.

Jenkins testified that he then pulled over on a side street. He thought that Jamison might have wanted to talk to him. Jenkins testified that Jamison pulled her vehicle alongside his and that the vehicles were separated by about three feet. Before Jenkins had the opportunity to speak to Jamison, she pulled out a pistol, pointed it at his face, and fired. Jenkins drove away and went to the hospital, thinking that he might have been shot. After being examined by hospital staff, he was reassured that he was not injured. There was, however, a large bullet hole in the driver’s side door. Police officers later removed a large caliber bullet from the driver’s seat of Jenkins’s vehicle. The next day, Jenkins filed for a personal protection order against Jamison in the Oakland Circuit Court.

A jury convicted Jamison of assault with intent to do great bodily harm less than murder and felony-firearm. The sentencing information report indicated the assessment of 10 points for offense variable (OV) 10 under the sentencing guidelines. Defense counsel objected to the OV 10 score, asserting that Jenkins and Jamison did not have the requisite domestic relationship to justify a score of 10 points. The trial court overruled the objec[443]*443tion and sentenced Jamison on the basis of a total OV score of 40 points. Jamison now appeals.

II. OFFENSE VARIABLE 10

A. STANDARD OF REVIEW

A trial court has discretion to determine the number of points assigned for a particular offense variable, “provided that evidence of record adequately supports a particular score.”3 This Court will uphold a sentencing court’s scoring decision if it is supported by record evidence.4 However, we review de novo questions of law involving the proper construction or application of the statutory sentencing guidelines.5 When a sentence is based on a scoring error, resentencing is required.6

B. LEGAL STANDARDS

This Court must affirm a sentence that is within the legislative guidelines range unless the trial court erred in scoring the sentencing guidelines or relied on inaccurate information in determining the defendant’s sentence.7 The facts the trial court relied on when assessing points for a particular variable under the sentencing guidelines need not have been determined by the jury when rendering its verdict.8 “Rather, all that is required is that evidence exists that is adequate to support a particular score.”9 This Court will uphold a sentencing court’s [444]*444scoring decision if there is any record evidence to support it.10

OV 10 deals with the exploitation of vulnerable victims.11 A sentencing court properly assesses 10 points for this variable if “[t]he 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.”12

C. APPLYING THE STANDARDS

Jamison argues that there was no domestic relationship between her and Jenkins because the two had never shared a domicile, nor had they engaged in a familial or cohabitating relationship. Accordingly, Jami-son contends that had OV 10 been properly scored, her total OV score would have been 30 points. Because Jamison’s prior record variable score was 0, this would have lowered her minimum sentence range to 0 to 11 months.13 Thus, she argues that her one-year minimum sentence was in excess of the guidelines range, entitling her to resentencing.14

In construing the statutory sentencing guidelines, courts must discern and give effect to the intent of the Legislature.15 The process begins with an examination of the plain language of the statute.16 When that language is unambiguous, Courts must “presume that the Legislature intended the meaning clearly [445]*445expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.”17

The sentencing guidelines do not define “domestic” or “domestic relationship.” And this Court has not published an opinion addressing the meaning of the term “domestic relationship” in the context of OV 10. This Court has, however, interpreted the term in unpublished opinions, albeit with divergent conclusions. While these opinions are not binding precedent on this Court, we may consider them as instructive or persuasive.18

In People v Davis, a panel of this Court turned to the domestic assault statute for guidance on interpretation of the phrase “domestic relationship” as used in OV 10.19 Under the domestic assault statute, a person is guilty of domestic assault if the person assaults “his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household.”20 “As used in this section, ‘dating relationship’ means frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.”21 The Davis panel held that because the victim and the defendant engaged in con[446]

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Bluebook (online)
807 N.W.2d 427, 292 Mich. App. 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-jamison-michctapp-2011.