People v. Day

Full title: PEOPLE v DAY

Court: Michigan Court of Appeals

Date published: Jun 21, 1988

426 N.W.2d 415 (Mich. Ct. App. 1988)

426 N.W.2d 415

Opinion

Docket No. 102133.

Decided June 21, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, and Mary Sue Czarnecki, Assistant Prosecuting Attorney, for the people.

Douglas Hamel and Frank Singer, for defendant on appeal.

Before: G.R. McDONALD, P.J., and M.J. KELLY and W.F. LAVOY,^_ JJ.

_ Circuit judge, sitting on the Court of Appeals by assignment.

PER CURIAM.

Following defendant's plea of guilty in two separate cases to bank robbery, MCL 750.531; MSA 28.799, and armed robbery, MCL 750.529; MSA 28.797, defendant was sentenced to concurrent prison terms of from fifteen to forty years on each charged offense. Defendant appeals from his sentences as of right. We affirm.

On appeal defendant claims that the sentencing judge erred in calculating the sentencing guidelines recommended sentence. Specifically defendant claims error in the assessment of four points for offense variable one, "weapon: presence, type and use" and two points for offense variable six, "multiple victims."

A sentencing judge has discretion in determining the number of points to be scored for any offense variables in the sentencing guidelines provided there is evidence on the record which adequately supports a particular score. People v Jannifer Williams, 147 Mich. App. 1; 382 N.W.2d 191 (1985). In the instant case defendant admitted to the use of a toy gun while committing the bank robberies. The sentencing guidelines robbery offense variable defines a firearm as "an operational or a non-operational firearm, or any instrument fashioned to reasonably appear to be a firearm." Thus, as the evidence indicated that defendant pointed the firearm at a victim, the sentencing judge was within his discretion in assessing defendant four points under offense variable 1.

We also find no abuse of discretion in the sentencing judge's assessment of two points for offense variable 6, multiple victims. We do not believe "victims" for purposes of this variable are limited to those from whom the defendant takes property. Here, in the event of police or other third party apprehension intervention, each individual in the bank at the time of the robbery was a victim subject to possible injury or death.

Affirmed.