Opinion
356047
12-21-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. GERALD THEODOREANWAR POLZIN, Defendant-Appellant.
UNPUBLISHED
St. Clair Circuit Court LC No. 19-001184-FH
Before: Boonstra, P.J., and Gleicher and Letica, JJ.
PER CURIAM
Gerald Polzin pleaded guilty to charges of failure to stop at the scene of an accident resulting in serious impairment, MCL 257.617(2); operating a motor vehicle without security, MCL 500.3102; and operating a motor vehicle while his license was suspended, MCL 257.904(1). We granted leave to appeal, People v Polzin, unpublished order of the Court of Appeals, entered February 23, 2021 (Docket No. 365047), to consider Polzin's challenges to the scoring of Offense Variables (OVs) 3, 4, and 17. We discern no error in the scoring of Polzin's guidelines. We affirm.
I. BACKGROUND
On October 16, 2015, Polzin decided to drive, angry and intoxicated, with his nephew, Clemence Polzin (Clemence), in the passenger seat. Not only was Polzin intoxicated; his driver's license had been suspended and he had not secured no-fault insurance for his vehicle. A concerned family member followed Polzin in a separate vehicle. Polzin soon lost control of the vehicle and drove nose down into a ditch. The family member helped Clemence and Polzin out of the damaged vehicle and drove them to the McLaren Lapeer Emergency Room. A hospital staff member notified the St. Clair County Sheriff's Office that they were treating two individuals injured in an unreported motor vehicle accident. By the time deputies arrived, Polzin had left the building. The deputies interviewed Clemence and located the abandoned vehicle in the ditch.
Clemence was seriously injured in the accident. He required stitches over his right eye and doctors performed a skin graft around his left eye. Clemence underwent two surgeries to reconstruct the area around his left eye and had scarring and "constant irritation" to the skin in that area. He also experienced nerve damage that resulted in a loss of sensation on the right side of his face. Four years later, Clemence's face remained visibly disfigured. Clemence suffered two ruptured and herniated discs in his back. And Clemence required neurologic treatment for seizures and assistance from a pain clinic as a result of his injuries. These injuries prevented Clemence from working for an extended period of time. Clemence reported that that had all taken an "emotional toll" on him and his family.
Deputies had difficulty locating Polzin, leading to an extensive delay in charging him. Polzin eventually pleaded guilty in 2019 to failure to stop at the scene of an accident resulting in serious impairment, operating a motor vehicle without security, and operating with a suspended license. The court ultimately sentenced Polzin as a third habitual offender to 2 to 10 years' imprisonment for his failure to stop at the scene of an accident resulting in serious impairment conviction, and 20 days' incarceration for his other offenses.
II. ANALYSIS
Polzin now challenges the assessment of 25 points for OV 3, 10 points for OV 4, and 5 points for OV 17. We review for clear error the trial court's factual determinations at sentencing, findings that must be supported by a preponderance of the evidence. People v Carter, 503 Mich. 221, 226; 931 N.W.2d 566 (2019). "Whether the facts, as found, are adequate to warrant the assessment of points under the pertinent OVs . . . is a question of statutory interpretation" that we review de novo. Id. "Our goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature . . . . If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written." People v Dumback, 330 Mich.App. 631, 637; 950 N.W.2d 493 (2019) (cleaned up).
A. OVs 3 AND 4
MCL 777.33(1)(c) provides for the assessment of 25 points for OV 3 when "[l]ife threatening or permanent incapacitating injury occurred to a victim" of an offense. MCL 777.34(1)(a) provides for the assessment of 10 points for OV 4 when "[s]erious psychological injury requiring professional treatment occurred to a victim." Polzin argues that the court could assess no points for either variable because Clemence's physical and psychological injuries were caused by the accident itself, not by Polzin's failure to stop at the scene of the accident. As courts may only score the OVs in reference to the sentencing offense, Polzin urges, the trial court in this case could only look to the failure to stop and not the preceding accident. See People v McGraw, 484 Mich. 120, 135; 771 N.W.2d 655 (2009). Polzin's argument reveals a misunderstanding of the crime to which he pled.
Polzin pleaded guilty to failure to stop at the scene of an accident resulting in serious impairment or death in violation of MCL 257.617(2). MCL 257.617 provides:
(1) The driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident upon public or private property that is open to travel by the public shall immediately stop his or her vehicle at the scene of the accident and shall remain there until the requirements of [MCL 257.619] are fulfilled or immediately report the accident to the nearest or most convenient police
agency or officer to fulfill the requirements of [MCL 257.619(a) and (b)] if there is a reasonable and honest belief that remaining at the scene will result in further harm. The stop shall be made without obstructing traffic more than is necessary.
(2) Except as provided in subsection (3), if the individual violates subsection (1) and the accident results in serious impairment of a body function or death, the individual is guilty of a felony punishable by imprisonment for not more than 5 years or by a fine of not more than $5,000.00, or both.
(3) If the individual violates subsection (1) following an accident caused by that individual and the accident results in the death of another individual, the individual is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not more than $10,000.00, or both.
This Court has already interpreted MCL 257.617 and determined that the underlying accident and a resultant serious impairment or death are both elements of the sentencing offense. In Dumback, 330 Mich.App. at 637, the defendant pleaded guilty of leaving the scene of accident that resulted in death in violation of subsection (3). The question before this Court was whether the victim's death was a "homicide." If so, the trial court could not score 100 points for OV 3 under MCL 777.33(1)(a) despite that "[a] victim was killed," as MCL 777.33(2)(b) precluded such a score when homicide is the sentencing offense. Dumback, 330 Mich.App. at 633.
Relevant to the issue now before us, this Court held in Dumback, 330 Mich.App. at 642, that MCL 257.617(3) was not merely a penalty enhancement of MCL 257.617(1); rather, it was a separate offense with its own elements. To be convicted of MCL 257.617(3), the defendant must have committed all the elements of MCL 257.617(1) ("the driver of a vehicle was involved in an accident, knew or had reason to know that the accident occurred, and did not stop or report it") plus the accident must have resulted in the death of another individual. Dumback, 330 Mich.App. at 642. Accordingly, the accident, the failure to stop, and the victim's injury are all elements of the offense.
Further supporting application of the Dumback analysis to the current case is the Dumback Court's analysis of the unpublished case of People v Lacosse, unpublished per curiam opinion of the Court of Appeals, issued September 16, 2014 (Docket No. 310987). Dumback, 330 Mich.App. at 640. In Lacosse, unpub op at 1, the defendant pleaded guilty to failure to stop at the scene of an accident caused by the defendant and resulting in death, MCL 257.617(3). The defendant objected to the trial court's assessment of points for OV 3, arguing that his failure to stop did not cause the victim's death, the accident preceding his failure to stop did. Lacosse, unpub op at 4. The Lacosse Court found that argument unpersuasive. Id. Although Dumback overruled the result of Lacosse, the Dumback Court agreed with the Lacosse Court's finding that the underlying accident caused by a defendant is an element of MCL 257.617(3).
The same logic applies to a violation of MCL 257.617(2). The elements of the sentencing offense include not only the failure to stop at the scene of the accident and the serious impairment of a victim, the elements include the underlying accident itself. All elements are required to commit the offense and therefore all elements may be considered when scoring the OVs relevant to the offense. See McGraw, 484 Mich. at 135.
It is undisputed that Polzin was involved in a motor vehicle accident. It is uncontested that Clemence suffered "permanent incapacitating injury" as a result of the accident. Accordingly, the 25-point assessment for OV 3 was clearly supported. While the evidence of a "serious psychological injury" is not as strong, Polzin does not raise a challenge on that ground. Accordingly, we have no ground to interfere with the assessment of 10 points for OV 4 either and these scores remain in place.
Clemence's physical injuries, facial disfigurement, as well as his expressed hardships support an assessment of 10 points for OV 4. Therefore, the trial court did not err when it assessed 25 points for OV 3 and 10 points for OV 4.
B. OV 17
The probation department originally recommended assessing 10 points for OV 17 (degree of negligence exhibited), reflecting that Polzin "showed a wanton or reckless disregard for the life or property of another person." MCL 777.47(1)(a). Polzin and the prosecutor agreed with that score at sentencing, but Polzin later sought the elimination of this score in his motion to correct his sentence. Following a hearing on Polzin's motion, the court reduced OV 17 to a 5-point score, reflecting instead that he "failed to show the degree of care that a person of ordinary prudence in a similar situation would have shown."
At the hearing, Polzin contended that he was not negligent in leaving the scene of the accident, because he and the victim went with a family member to the hospital. And Polzin argued that his act of leaving the emergency room was too attenuated to be connected to leaving the scene of the accident, and therefore could not be scored as negligent conduct.
Now Polzin contends that "OV 17 relates to the degree of negligence displayed by defendant in the commission of the sentencing offense." He again misunderstands that the sentencing offense includes both the underlying accident and his act of leaving the scene. He therefore misapprehends that the negligence he exhibited in causing the accident can be considered, not just his negligence in leaving the scene.
Polzin further contends, "On its face, the statute provides that OV 17 should 'only' be scored related to the 'operation of a vehicle,' along with other types of moving crafts." MCL 777.47 does not include this language. However, MCL 777.22(1) provides, "Score offense variables 17 and 18 if the offense or attempted offense involves the operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive." And this offense involved the operation of a vehicle.
And the evidence more than supports the court's 5-point score. Polzin was intoxicated and stormed out of a party because he was angry with a friend. Despite others trying to stop him, Polzin decided to drive while intoxicated. Because of his condition, Polzin drove too quickly, spun out on a gravel road, and drove his vehicle into a ditch. Although it was reasonable to leave with a family member to go to the hospital, Polzin fled the hospital before the police came to the hospital. This was not too attenuated to be connected to leaving the scene of the accident. Moreover, according to Clemence, Polzin showed a lack of concern at the scene for Clemence's obviously serious condition. Instead, Polzin attempted to remove the license plate from his car so he could avoid detection, while another family member assisted Clemence.
Ultimately, the court made no errors in scoring the sentencing guidelines and Polzin is not entitled to resentencing.
We affirm.