Opinion
No. 153636 No. 153751
05-19-2017
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Tiwaun Maurice CALLOWAY, Defendant–Appellant. People of the State of Michigan, Plaintiff–Appellant, v. Tiwaun Maurice Calloway, Defendant–Appellee.
OPINION
At issue in this case is whether the trial court properly assessed 15 points for Offense Variable 5 (OV 5). This question turns on whether the proofs were sufficient to establish that a "[s]erious psychological injury requiring professional treatment occurred to a victim's family." We hold that 15 points may be assessed for OV 5 even absent proof that a victim's family member has sought or received, or intends to seek or receive, professional treatment. In particular, OV 5 may also be scored when a victim's family member has suffered a serious psychological injury that may require professional treatment in the future, regardless of whether the victim's family member presently intends to seek treatment. Because there was adequate proof of such an injury in this case, we reverse the Court of Appeals' ruling that the trial court erred by assessing 15 points for OV 5.
I. FACTS AND PROCEDURAL HISTORY
Defendant, Tiwaun Calloway, and his friend Damian Jones were searching for the man they believed stole a cell phone from Jones's girlfriend. Defendant drove to Jones's residence, where Jones retrieved an AK–47 rifle. They later confronted the suspected thief. As the man tried to run away, Jones opened fire, killing him. Defendant then drove Jones away from the scene. Defendant was convicted of second-degree murder on an aiding and abetting theory and was sentenced to 20 to 50 years in prison.
At sentencing, the trial court scored OV 5 at 15 points. The Court of Appeals summarized the evidence supporting this score as follows:
The presentence investigation report (PSIR) reflects that the victim's stepfather was interviewed. He stated that the victim's mother was "having a very hard time dealing with this situation," and explained that the "incident has had a tremendous, traumatic effect on him and his family." He explained that the incident "will change them for the rest of their lives." The victim's stepfather expressed similar thoughts when he made a statement at sentencing.[ ]
People v. Calloway, unpublished per curiam opinion of the Court of Appeals, issued March 22, 2016 (Docket Nos. 323776 and 325524), p. 7, 2016 WL 1125760.
However, the Court of Appeals concluded that OV 5 should have been scored at zero points because
there is no evidence indicating that any member of the victim's family intended to receive professional treatment in relation to the incident or required professional treatment because of the incident. See People v. Portellos , 298 Mich.App. 431, 449, 827 N.W.2d 725 (2012) (affirming the trial court's refusal to assess points for OV 5 when there was no evidence that members of the victim's family intended to receive treatment).[ ]
Id.
The prosecution now seeks leave to appeal in this Court from the Court of Appeals' holding that OV 5 was misscored.
Defendant also seeks leave to appeal in Docket No. 153636 from the portion of the Court of Appeals' opinion rejecting defendant's challenges to his conviction. However, with respect to defendant's separate application, leave to appeal is denied because we are not persuaded that the questions presented should be reviewed by this Court. Defendant's motion to remand for a new trial is also denied.
II. STANDARD OF REVIEW
A trial court's factual determinations must be supported by a preponderance of the evidence and are reviewed for clear error. "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."
People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013).
Id.
In interpreting statutes, "our goal is to give effect to the Legislature's intent, focusing first on the statute's plain language." In doing so, "we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme. When a statute's language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written."
Madugula v. Taub, 496 Mich. 685, 696, 853 N.W.2d 75 (2014).
Id. (quotation marks and citations omitted).
III. ANALYSIS
OV 5 is scored when a homicide or homicide-related crime causes psychological injury to a member of a victim's family. MCL 777.35, which governs OV 5, provides as follows:
In particular, OV 5 is scored for "homicide, attempted homicide, conspiracy or solicitation to commit a homicide, or assault with intent to commit murder." MCL 777.22(1). This limitation may be contrasted with Offense Variable 4 (OV 4), which is scored for all crimes against a person, property, public order, public trust, and public safety when there is psychological injury to a victim. MCL 777.22.
(1) Offense variable 5 is psychological injury to a member of a victim's family. Score offense variable 5 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) Serious psychological injury requiring professional treatment occurred to a victim's family .......................................................... 15 points
(b) No serious psychological injury requiring professional treatment occurred to a victim's family ............................................................ 0 points
(2) Score 15 points if the serious psychological injury to the victim's family may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive.
Therefore, a trial court properly assesses 15 points for OV 5 when "[s]erious psychological injury requiring professional treatment occurred to a victim's family." However, the very next subsection of the statute provides that 15 points should be assessed "if the serious psychological injury to the victim's family may require professional treatment," and that "[i]n making this determination, the fact that treatment has not been sought is not conclusive."
MCL 777.35(2) (emphasis added).
At first blush, the second subsection of MCL 777.35 appears to contradict the first concerning whether professional treatment is required for points to be assessed. However, the more specific second subsection is clearly intended as a further explication of the circumstances justifying a 15–point score. "[W]e examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme." In addition, when a statute contains a general provision and a specific provision, the specific provision controls. While MCL 777.35(1)(a) requires the injury to be one "requiring professional treatment," the statute does not require proof that a victim's family member has already sought or received, or intends to seek or receive, professional treatment. The second subsection makes this clear by stating that "the fact that treatment has not been sought is not conclusive," and by specifying that a 15–point score is appropriate if the injury "may require professional treatment."
Madugula, 496 Mich. at 696, 853 N.W.2d 75.
DeFrain v. State Farm Mut. Auto. Ins. Co., 491 Mich. 359, 367 n. 22, 817 N.W.2d 504 (2012).
MCL 777.35(2) (emphasis added); see Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 612, 321 N.W.2d 668 (1982) ("[C]ourts should give the ordinary and accepted meaning to ... the permissive word ‘may’ unless to do so would clearly frustrate legislative intent....").
Although this threshold may seem low, trial courts must bear in mind that OV 5 requires a "serious psychological injury." In this context, "serious" is defined as "having important or dangerous possible consequences." Thus, in scoring OV 5, a trial court should consider the severity of the injury and the consequences that flow from it, including how the injury has manifested itself before sentencing and is likely to do so in the future, and whether professional treatment has been sought or received. However, even when professional treatment has not yet been sought or received, points are properly assessed for OV 5 when a victim's family member has suffered a serious psychological injury that may require professional treatment in the future.
Merriam–Webster's Collegiate Dictionary (11th ed.). To understand the meaning of words in a statute that are not otherwise defined, we may resort to dictionary definitions for guidance. Ronnisch Constr. Group, Inc. v. Lofts on the Nine, LLC, 499 Mich. 544, 559 n. 41, 886 N.W.2d 113 (2016).
See MCL 777.35(2) ("[T]he fact that treatment has not been sought is not conclusive."). By like token, the fact that treatment has been sought or received will not always be dispositive—for example, when the treatment sought or received is not indicated by the injury.
We disagree with the Court of Appeals to the extent that it held that in order to properly assess points for OV 5 in the absence of evidence that a victim's family member sought or received treatment, there must at least be evidence that a victim's family member had a present intention to seek or receive professional treatment. The Court of Appeals' holding on this point is not entirely clear because, after reviewing some of the statements by the victim's stepfather, the Court simply concluded its analysis by stating that "there is no evidence indicating that any member of the victim's family intended to receive professional treatment in relation to the incident or required professional treatment because of the incident."
Calloway, unpub. op. at 7, 2016 WL 1125760, citing Portellos, 298 Mich.App. at 449, 827 N.W.2d 725.
Portellos , the case the Court of Appeals cited in its OV 5 analysis, is equally opaque. There, to support its conclusion that OV 5 was properly scored at zero, the Court of Appeals stated as follows:
Though [the victim's grandmother] expressed her emotional response to the [victim's] death, she did not state that she intended to receive treatment. Nor did [the victim's father] state that he intended to receive treatment. [The victim's grandmother] only stated that she hoped that [the defendant] would be able to receive treatment while in prison.[ ]
Portellos, 298 Mich.App. at 449, 827 N.W.2d 725.
However, the Court of Appeals did not discuss any details regarding the victim's grandmother's "emotional response to the [victim's] death," or consider the letter she submitted "that spoke about her disbelief, grief, anger, and heartbreak at the loss of [the victim]." As noted above, OV 5 is not limited to situations in which a victim's family member has already sought or received treatment, or expressed an intention to do so. Points are also properly assessed when the serious psychological injury may require professional treatment in the future, regardless of whether the victim's family member presently intends to seek treatment. We overrule Portellos to the extent it stated or implied otherwise.
Id. at 441, 449, 827 N.W.2d 725.
Although our opinion interprets OV 5, we note that our interpretation is consistent with published Court of Appeals cases construing OV 4, which contains identical statutory language in pertinent part. See MCL 777.34(1)(a) (requiring trial courts to assess 10 points for OV 4 when "[s]erious psychological injury requiring professional treatment occurred to a victim"); MCL 777.34(2) (providing that 10 points should be assessed "if the serious psychological injury may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive"). The Court of Appeals has held that OV 4 may properly be scored at 10 points even absent proof that a victim sought or received, or intended to seek or receive, professional treatment. See People v. Schrauben, 314 Mich.App. 181, 197–198, 886 N.W.2d 173 (2016) ; People v. Williams, 298 Mich.App. 121, 124, 825 N.W.2d 671 (2012) ; People v. Earl, 297 Mich.App. 104, 109–110, 822 N.W.2d 271 (2012) ; People v. Ericksen, 288 Mich.App. 192, 202–203, 793 N.W.2d 120 (2010) ; People v. Waclawski, 286 Mich.App. 634, 681, 780 N.W.2d 321 (2009) ; People v. Apgar, 264 Mich.App. 321, 329, 690 N.W.2d 312 (2004).
IV. APPLICATION
Applying the plain language of MCL 777.35 to the facts of this case, the statements by the victim's stepfather in the presentence investigation report and at the sentencing hearing demonstrate that the victim's family members suffered serious psychological injuries that may require professional treatment in the future.
In the presentence investigation report, the victim's stepfather stated that the victim's mother "is having a very hard time dealing with this situation." He indicated that he met and married the victim's mother when the victim was approximately four months old. He stated that "this incident has had a tremendous, traumatic effect on him and his family." He indicated that the victim had just become a father four months earlier, and that the incident "will change them for the rest of their lives."
The victim's stepfather also addressed the trial court at sentencing, stating that "my family feels horrible about this incident," and that defendant "[does not] understand what he has done to our family and what he has done to my wife. And that's something that I can't change. I'll never be able to change it." After noting that the victim was only 24 years old when he was killed and that he had a four-month-old baby, the victim's stepfather stated:
I want you to feel my pain, your Honor. I want you to feel my pain. Because something happened that was final, we can't change it. He'll never have another birthday. He'll never see his child. His child will never see him. This is something that I have to go through the rest of my life with, I have to teach my grandbaby about her father.
He further stated that "since [the day of the murder], I've thought about this every single day, every day. And I'll probably think about it for the rest of my life. But this is something that I have to live through. And I will go through this till [sic] the end."
After reviewing this evidence, we believe that the trial court correctly concluded that two members of the victim's family suffered serious psychological injuries that may require professional treatment in the future. There was ample evidence of the seriousness of the injuries and their long-lasting effects to support the trial court's decision to assess 15 points for OV 5.V. CONCLUSION
We reverse the Court of Appeals' decision that the trial court improperly assessed 15 points for OV 5, and we remand this case to the trial court to determine whether it would have imposed a materially different sentence under the sentencing procedure described in People v. Lockridge .
People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015). We remand under Lockridge given the Court of Appeals' conclusion that the trial court engaged in judicial fact-finding in scoring two offense variables. Calloway, unpub. op. at 5–6, 2016 WL 1125760.
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Stephen J. Markman, C.J., Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Joan L. Larsen, JJ., concur.
Wilder, J., took no part in the decision of this case.