Opinion
Docket No. 290017.
Submitted May 12, 2010, at Lansing.
Decided May 20, 2010. Approved for publication July 6, 2010, at 9:00 a.m.
Appeal from Gratiot Circuit Court, LC No. 08-005583-FH.
Ronald D. Ambrose and Michael A. Faraone PC. (by Michael A. Faraone) for defendant.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, J J.
This case has been remanded for consideration as on leave granted. Defendant challenges the sentence imposed for his conviction of attempting to arrange for child sexually abusive activity, MCL 750.145c(2), based on a plea of no contest. We vacate defendant's sentence and remand for resentencing. This appeal has been decided without oral argument. MCR 7.214(E).
People v. Wiggins, 485 Mich. 875 (2009).
During sentencing, defendant argued that only 10 points should be assessed for offense variable (OV) 12 (contemporaneous felonious criminal acts) rather than 25 points. MCL 777.42. Defendant argued that OV 12 had been misscored because only one of the other three initial charges against him, specifically an additional charge of attempting to arrange for child sexually abusive activity, is designated as a crime against a person in the sentencing guidelines, while the other charges of disseminating sexually explicit matter to a minor are designated as crimes against public order. The trial court disagreed, finding that all three of the additional charges were crimes involving other persons, namely the minor children involved. Defendant now challenges that decision.
When calculating the appropriate guidelines minimum sentence range, "[a] sentencing court has discretion in determining the number of points to be scored, provided that evidence of record adequately supports a particular score." People v. Hornsby, 251 Mich. App. 462, 468; 650 N.W.2d 700 (2002). "Where effectively challenged, a sentencing factor need be proved only by a preponderance of the evidence." People u Harris, 190 Mich. App. 652, 663; 476 N.W.2d 767 (1991); see also People v. Drohan, 475 Mich. 140, 142-143; 715 N.W.2d 778 (2006). We review sentencing guidelines scoring decisions to determine whether the sentencing court properly exercised its discretion and whether the evidence adequately supported a particular score. People v. McLaughlin, 258 Mich. App. 635, 671; 672 N.W.2d 860 (2003). Any statutory interpretation concerning the application of the sentencing guidelines presents a question of law subject to review de novo on appeal. People v. Cannon, 481 Mich. 152, 156; 749 N.W.2d 257 (2008).
The primary goal of statutory interpretation is to ascertain and effectuate the intent of the Legislature. People v. Davis, 468 Mich. 77, 79; 658 N.W.2d 800 (2003). When construing a statute, we first examine the language of the statute. Id. Where the language of the statute is clear and unambiguous, further construction is unnecessary and unwarranted and the statute will be applied as written. 7c?. If the statute defines a term, that definition controls. People v. Schultz, 246 Mich. App. 695, 703; 635 N.W.2d 491 (2001). In addition, provisions must be read in the context of the entire statute so as to produce a harmonious whole, People v. Couzens, 480 Mich. 240, 249; 747 N.W.2d 849 (2008), and identical language in various provisions of the same act should be construed identically, People ex rel Simmons v. Munising Twp, 213 Mich. 629, 633; 182 NW 118 (1921).
To calculate the appropriate guidelines range, a court must determine the offense category and which offense variables apply, score the offense variables, total the points to determine the offender's offense variable level, and then assess points for the prior record variables to determine the offender's prior record variable level. MCL 777.21(1)(a) and (b); People v. Morson, 471 Mich. 248, 255; 685 N.W.2d 203 (2004). The court must then use the resultant offense variable level and prior record variable level with the applicable sentencing grid to determine the recommended minimum sentence range. MCL 777.21(1)(c); Morson, 471 Mich. at 255.
MCL 777.5 provides:
The offense categories are designated in [MCL 777.11 et seq.] as follows:
(a) Crimes against a person are designated "person".
(b) Crimes against property are designated "property".
(c) Crimes involving a controlled substance are designated "CS".
(d) Crimes against public order are designated "pub ord".
(e) Crimes against public trust are designated "pub trst".
(f) Crimes against public safety are designated "pub saf".
MCL 777.6 provides, "The offense descriptions in [MCL 777.11 et seq.] are for assistance only and the statutes listed govern application of the sentencing guidelines." (Emphasis added.) MCL 777.42(1) provides in pertinent part:
The "offense descriptions" are contained in a column separate from the offense category designations in MCL 777.11 through MCL 777.18.
Offense variable 12 is contemporaneous felonious criminal acts. Score offense variable 12 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) Three or more contemporaneous felonious criminal acts involving crimes against a person were committed . . . . . . . . . . . . . . . 25 points
* * *
(c) Three or more contemporaneous felonious criminal acts involving other crimes were committed . . . . . . . . 10 points
Pursuant to MCL 777.15g, two of the crimes used to score OV 12 in this case, those involving disseminating sexually explicit matter to a minor, MCL 722.675, are specifically designated as "[c]rimes against public order." MCL 777.5(d). Under the plain statutory language, the trial court should not have used those crimes as concurrent offenses involving "[c]rimes against a person" when scoring OV 12. The trial court erred when it found that it was free to look at the substance of the crime rather than the offense category designations under the guidelines themselves because the Legislature used the term "involving crimes against a person" instead of the phrase "categorized as crimes against a person" in MCL 777.42. The trial court essentially read MCL 777.42 as requiring the assessment of 25 points for three contemporaneous "criminal acts involving a person" or "criminal *acts against a person" and not, as the statute states, "criminal acts involving crimes against a person." "Crimes against a person" is a technical term, at least as used in the guidelines, and MCL 777.5 is essentially a definitional section. In addition, under MCL 777.6, the statutes listed in MCL 777.11 to MCL 777.18 govern the application of the sentencing guidelines, including MCL 777.42. Given that identical language in various provisions of the same act must be construed identically, Simmons, 213 Mich. at 633, we conclude that only crimes with the offense category designated as "person" under MCL 777.11 to MCL 777.18 can be considered "crimes against a person" for purposes of scoring OV 12 pursuant to MCL 777.5 and MCL 777.6. In light of the relevant statutory language, the trial court erred when it assessed 25 points for OV 12. Only 10 points should have been assessed for OV 12, using defendant's three other "crimes."
We note that the same reasoning applies to scoring OV 13 (continuing pattern of criminal behavior), MCL 777.43, although that offense variable is not at issue in this case.
The trial court's calculations placed defendant in the C-V cell on the sentencing grid for his class B offense, with a corresponding minimum sentence range of 51 to 85 months. With only 10 points assessed for OV 12, defendant's total OV score of 40 points places him in the C-IV cell on the sentencing grid, with a recommended minimum sentence range of 45 to 75 months. MCL 777.63. Accordingly, defendant must be resentenced because the scoring error altered the appropriate guidelines range, and defendant's minimum sentence of 85 months in prison lies outside that range. See People v. Francisco, 474 Mich. 82, 89-91; 711 N.W.2d 44 (2006).
We vacate defendant's sentence and remanded for resentencing. We do not retain jurisdiction.