Trial Lawyer’s Takeaway: points for OV 4 may not be assessed solely on the basis that a serious psychological injury would normally occur as a result of the crime; fear while the crime is being committed, by itself, is insufficient to assess points for OV 4.

At sentencing in a criminal case, the trial court weighs so-called “offense variables” to determine how serious the defendant’s crime was for purposes of determining the sentence length.  These variables review the characteristics about the crime to determine its seriousness.  For example, the offense variable at issue in this case—Offense Variable (OV) 4—recommends a longer sentence if a “serious psychological injury requiring professional treatment occurred to the victim.”  The list of offense variables operates like a checklist, allowing the judge to tally up a total at the end, which will recommend a particular sentence length.

Here, White, while robbing a gas station, held a gun to the cashier’s head.  The cashier said she thought she heard the trigger being pulled. During White’s plea colloquy, he agreed that the cashier “was afraid” that he “was going to shoot her.”  The trial court decided that OV 4 was satisfied because “people would typically suffer a psychological injury when confronted with the instant crime.”

Trial Lawyer’s Takeaway: multiple felony-firearm convictions can arise from a single criminal incident.

MCL 750.227b(1) sets out mandatory sentencing if a person is convicted of multiple convictions of felony-firearm possession: 5 years for a second conviction and 10 years for a third conviction.  Before Wilson’s felony-firearm conviction in this case, he had been convicted twice of felony-firearm, but these two convictions arose from the same criminal incident.  Under the Court’s decision in People v. Stewart, 441 Mich. 89 (1992), Wilson argued that these prior felony-firearm convictions should only count as one for purposes of the statute because they arose from the same criminal incident.

Trial Lawyer’s Takeaway: all sentencing guidelines are advisory; a sentence’s reasonableness is based on Milbourn proportionality.

Both cases involved sentencing in the aftermath of the Court’s decision in Lockridge, which made Michigan’s sentencing guidelines advisory.  Justice McCormack wrote the majority opinion, joined by Justices Viviano, Bernstein, and Larsen. 

Trial Lawyers’ Bottom Line: Trial court cannot correct an invalid sentence sua sponte after judgment; instead, a party must move for resentencing.

In 2011, Comer pled guilty to criminal sexual conduct.  Under MCL 750.520n and People v Brantley, 296 Mich App 546 (2012), the trial judge should have imposed lifetime monitoring on the defendant, but the judge failed to do so. Even after a remand for resentencing due to incorrect scoring of offense variables, the trial court still did not impose lifetime monitoring.

The Michigan Department of Corrections wrote a letter to the trial court saying that the defendant’s sentence should have included lifetime monitoring; but the prosecution never moved for resentencing.  The trial court then imposed life monitoring sua sponte. After a remand from the Michigan Supreme Court for consideration as on leave granted, the Court of Appeals affirmed, holding that “the trial court was empowered to correct defendant’s invalid sentence without time limitation.”  The Court granted leave to appeal.

Trial Lawyers’ Bottom Line: OV 5 should be assessed for “significant psychological injury,” even if victim’s family has no intention of seeking medical treatment

Damian Jones shot and killed a man he suspected of stealing his girlfriend’s phone.  Calloway served as the getaway driver and was convicted of second-degree murder on an aiding and abetting theory.  He was sentenced to 20 to 50 years in prison.

The trial court scored fifteen points for OV 5, which asks whether a “serious psychological injury requiring professional treatment occurred to a victim’s family.”  The Court of Appeals reversed because there was no evidence that any member of the victim’s family required or intended to seek professional treatment.  The Court granted leave to determine whether evidence of an intention to seek treatment is required to score fifteen points for OV 5.