People v. Kimble

684 N.W.2d 669, 470 Mich. 305
CourtMichigan Supreme Court
DecidedJune 29, 2004
DocketDocket 122271
StatusPublished
Cited by313 cases

This text of 684 N.W.2d 669 (People v. Kimble) 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. Kimble, 684 N.W.2d 669, 470 Mich. 305 (Mich. 2004).

Opinions

MARKMAN, J.

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.

[308]*308At sentencing, defendant argued that OV 16, which considers the “property obtained, damaged, lost or destroyed,” should be scored at one point because the stolen car had a value of $200 or more, but not more than $1,000, while the prosecutor argued that OV 16 should be scored at five points because the stolen car had a value of $1,000 or more, but not more than $20,000. The trial court scored OV 16 at five points. Without the five points, the appropriate minimum sentence range would have been 180 to 300 months, but, with the five points, the minimum sentence range was 225 to 375 months.1 The trial court sentenced defendant to a minimum term of 360 months 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.2 We granted the prosecutor’s application for leave to appeal and held defendant’s cross-application in abeyance.3

II. STANDARD OF REVIEW

This case presents an issue involving the interpretation of a statute and a court rule, which is a question of [309]*309law that we review de novo. People v Petit, 466 Mich 624, 627; 648 NW2d 193 (2002).

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.

[310]*310The Court of Appeals majority concluded that § 34(10) precludes appellate review if the sentence is within the appropriate guidelines range and the party failed to raise the issue at sentencing, in a motion for resentenc-ing, or in a motion to remand. However, § 34(10) does not preclude appellate review if the sentence is outside the appropriate guidelines range, even if the party failed to raise the issue at sentencing, in a motion for resentencing, or in a motion to remand. Accordingly, the majority concluded that appellate review is not precluded in this case because the sentence here is outside the appropriate guidelines range.

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 [311]*311relied upon in determining the sentence and the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand.

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.

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Cite This Page — Counsel Stack

Bluebook (online)
684 N.W.2d 669, 470 Mich. 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kimble-mich-2004.