Opinion
No. 313306
08-13-2013
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHARLES LEE BROWN, Defendant-Appellant.
UNPUBLISHED
Saginaw Circuit Court
LC No. 09-032310-FH
Before: BOONSTRA, P.J., and SAWYER and MURRAY, JJ. PER CURIAM.
On October 22, 2012, defendant was sentenced to "a maximum of 15 years and [ ] a minimum of 83 months" in prison after he was convicted by a jury of assault with intent to do great bodily harm less than murder. On February 11, 2013, the trial court denied defendant's motion to correct an invalid sentence. Defendant now appeals as of right, relative to the scoring of OV 19.
I. BASIC FACTS AND PROCEDURE
In a previous appeal of an earlier sentence relative to this conviction, defendant challenged the trial court's scoring of OV 7. This Court vacated the trial court's initial sentence (of 95 months to 15 years), and remanded for resentencing. People v Brown, unpublished opinion per curiam of the Court of Appeals, issued February 23, 2012 (Docket No. 299459). The trial court then imposed the sentence that is currently before us. In our prior opinion, this Court laid out most of the relevant facts as follows:
Defendant's conviction is the result of a January 2009 assault involving his girlfriend, Ella Toney. Toney and defendant began their romantic relationship in 2008. After about four or five months, defendant moved into Toney's home. Their relationship was punctuated by heated arguments that often turned physically violent. In August 2008, defendant hit Toney with a clothing iron during an argument, breaking her right jaw in two places. Toney underwent surgery to repair the damage, and had a metal plate placed in the bottom of her right jaw.
On January 29, 2009, defendant and Toney got into an argument because Toney and her daughter ate some of defendant's candy. Toney spent the night on
the couch. The next morning, defendant and Toney continued to argue, and defendant told Toney he was going to hurt her and hit her in the face, striking her jaw. After defendant hit Toney, Toney instructed her daughter to call 911, but defendant would not give Toney's daughter the phone. Toney told her daughter to go to the neighbor's house to call the police.
Police responded to the scene, and transported Toney to the hospital. At the hospital Toney was informed that her jaw was broken for a second time. Toney eventually underwent surgery and her jaw was wired together. Defendant fled the scene of the assault before police arrived, but was eventually arrested. Defendant was charged with assault with intent to do great bodily harm, MCL 750.84, aggravated stalking, MCL 750.411i, and interfering with electronic communications, MCL 750.540 (5)(a). After a jury trial, defendant was found guilty of assault with intent to do great bodily harm, but acquitted of aggravated stalking and interfering with electronic communications. [Id. at 1.]
Additional facts relevant to this appeal were revealed during the February 11, 2013 hearing on defendant's motion to correct an invalid sentence. Specifically, after Toney told her daughter to go to the neighbor's house to call the police, she followed defendant out to his car, and as "he was trying to leave, [ ] [she] tried to bust every window out [she] could in the car." Toney broke the car windows using a wooden "four-by-four," and she testified at trial that "[her] neighbor pulled up to help [Toney], and she seen [sic] the blood, and she told [Toney] to stop because [Toney] was still going at him and at the windows and she was trying to stop [Toney]." "[D]efendant [then] left the car that he was in, and it appeared that he had ran [sic] to a house. [The police] went to the house and tried to get him out, but he wouldn't come out." The motion hearing further revealed "that the defendant's automobile was involved in an accident with a telephone pole as he was escaping the scene," "and the police tracked his footprints from the car he was in to the house, the officers knocked on the door. No one answered, and the officer did peek through the mail slot, was able to see a black male inside."
In sentencing defendant at the original sentencing hearing, the trial court found "that the defendant interfered with the administration of justice by prohibiting the police officers from resolving the instant offense" and scored ten points under OV 19. Although defendant pointed out at the subsequent motion hearing that "[t]here was no identification of" the male inside the house, the trial court denied defendant's motion to correct an invalid sentence. Consequently, defendant appeals as of right the trial court's denial of his motion to correct the invalid sentence, relative to the scoring of ten points under OV 19.
OV 19 was not addressed at defendant's re-sentencing, but was addressed at the hearing on defendant's postsentencing motion.
II. STANDARD OF REVIEW
This Court reviews the trial court's application and interpretation of sentencing guidelines de novo. People v Bulger, 291 Mich App 1, 4; 804 NW2d 341 (2010). However, a trial court's findings of fact at sentencing will not be overturned unless they are clearly erroneous. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799, cert den 555 US 1015; 129 S Ct 574; 172 L Ed 2d 435 (2008).
III. DISCUSSION
The issue on appeal before this Court is whether the trial court incorrectly scored ten points under OV 19 for interference with the administration of justice. Under the particular circumstances of this case, we conclude that the trial court erred in scoring ten points under OV 19. OV 19 should have been scored at zero points, and the applicable sentencing guidelines range thus is 29 to 71 months. We therefore remand for resentencing.
Defendant was convicted of assault with intent to do great bodily harm less than murder and sentenced according to the Michigan sentencing guidelines. The guidelines for scoring OV 19 are contained under MCL 777.49 as follows:
Offense variable 19 is a threat to the security of a penal institution or court or interference with the administration of justice or the rendering of emergency services. Score offense variable 19 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) The offender by his or her conduct threatened the security of a penal institution or court .........................25 points
(b) The offender used force or the threat of force against another person or the property of another person to interfere with, attempt to interfere with, or that results in the interference with the administration of justice or the rendering of emergency services.........................15 points
(c) The offender otherwise interfered with or attempted to interfere with the administration of justice ................10 points
(d) The offender did not threaten the security of a penal institution or court or interfere with or attempt to interfere with the administration of justice or the rendering of emergency services by force or threat of force ...............0 points [See also People v Barbee, 470 Mich 283, 286; 681 NW2d 348 (2004).]
Pursuant to MCL 777.49, the trial court scored ten points for interfering or attempting to interfere with the administration of justice. In interpreting a statute, a court must ascertain the legislative intent by considering the plain meaning of the statute's language. People v Bonilla-Machado, 489 Mich 412, 421-22; 803 NW2d 217 (2011). "A defendant is entitled to be sentenced by a trial court on the basis of accurate information," and a defendant must be resentenced if correcting an error alters the defendant's guidelines range. People v Francisco, 474 Mich 82, 88-90; 711 NW2d 44 (2006).
There are a number of circumstances where a trial court may correctly score ten points under OV 19. In assessing the proper amount of points to score under OV 19, the court can consider a defendant's conduct after the offense. People v Smith, 488 Mich 193, 200; 793 NW2d 666 (2010). A court can score points under OV 19 based on a defendant's giving a false name or lying to officers because interference with the administration of justice includes interference with police duties outside the judicial process. Barbee, 470 Mich at 287-88; People v Portellos, 298 Mich App 431, 450; 827 NW2d 725 (2012). Additionally, interference with the administration of justice does not require a threat. People v Steele, 283 Mich App 472, 493; 769 NW2d 256 (2009).
Interference with the administration of justice becomes more complex in the context of a defendant's flight. This Court has found that a defendant who fled the scene of a crime and left the state while hiding evidence and encouraging others to lie about the crime had interfered with the administration of justice. People v Ericksen, 288 Mich App 192, 203; 793 NW2d 120 (2010). "Interfering or attempting to interfere with the administration of justice includes acts that constitute obstruction of justice, but is not limited to such acts." Id. at 204. Additionally, when an officer has given an unambiguous command to stop and a defendant flees, the defendant has interfered with the administration of justice. People v Ratcliff, 299 Mich App 625, 633; ____ NW2d ____ (2013). Nevertheless, flight is not itself interference with the police. See Illinois v Wardlow, 528 US 119, 124-125; 120 S Ct 673; 145 L Ed 2d 570 (2000); cf Ratcliff, 299 Mich App at 633 ("Fleeing from the police can easily become 'interference with the administration of justice' . . . .") (emphasis added).
The trial court incorrectly scored ten points under OV 19 in the instant case, because the evidence shows that defendant merely left the scene of the crime to avoid further confrontation with Toney. Unlike the defendants in the relevant cases cited above, defendant did not flee from the presence of officers, disobey a command to stop his flight, or lie (or encourage others to lie) to officers. He did not attempt to hide evidence, make threats, or give a false name to officers. Rather, he sought to avoid further confrontation with Toney after she broke out the windows in his car as he attempted to drive away. The police claimed to see a black man standing inside a house who did not answer the door when they knocked. But failure to answer a door does not constitute interference with the administration of justice, because an "individual has a right to ignore the police and go about his business." Wardlow, 528 US at 125. The police also could not positively identify defendant as the man inside the house who refused to answer the door. Moreover, even assuming defendant to have been that man, he went into the house before the police arrived, and was not in flight from them.
In the relevant cases discussed above, the defendants who were found to have interfered with the administration of justice took affirmative steps, beyond mere flight, to obstruct justice. See, e.g., Ericksen, 288 Mich App at 203. Here, defendant merely left the scene of the confrontation and arguably went to a nearby house. Because flight by itself provides no basis for scoring points under OV 19, and because the record in any event does not show that defendant's flight was even related to the police or their imminent arrival, the trial court erred in scoring ten points under OV 19.
If OV 19 is scored at zero points, defendant's OV level will change from OV level IV to OV level III, and the applicable guideline range will be 29 to 71 months; therefore, defendant is entitled to resentencing. MCL 777.65. As a result, we reverse the trial court's denial of defendant's motion to correct his sentence, vacate defendant's judgment of sentence, and remand for resentencing in accordance with this opinion.
Reversed, vacated, and remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
Mark T. Boonstra
David H. Sawyer
Christopher M. Murray