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People v. Smith

Court of Appeals of Michigan

December 13, 2016

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
CHAZ NICHOLAS SMITH, Defendant-Appellant.

         Eaton Circuit Court LC No. 14-020208-FH

          Before: M. J. Kelly, P.J., and O'Connell and Beckering, JJ.

          M. J. Kelly, P.J.

         Defendant Chaz Smith pleaded guilty to breaking and entering with intent to commit a felony, MCL 750.110, first-degree retail fraud, MCL 750.356c, and resisting or obstructing a police officer, MCL 750.81d. In September 2014, under the terms of a sentencing agreement, Smith originally was sentenced to 120 days in the county jail and two years' probation as part of the Eaton Circuit Court's priority drug court program. In 2015, Smith pleaded guilty to violating his probation by stealing a drug test from Meijer and violating his curfew. The trial court revoked his probation and sentenced him as a second habitual offender, MCL 769.10, to concurrent prison terms of 33 to 180 months for his breaking and entering conviction, 33 to 90 months for his first-degree retail fraud conviction, and 24 to 36 months for his resisting and obstructing conviction. Smith filed an application for delayed leave, which we denied.[1] Smith then appealed to our Supreme Court, which remanded to this Court for consideration as on leave granted. People v Smith, 499 Mich. 924; 878 N.W.2d 846 (2016). For the reasons stated in this opinion, we affirm.

         I. BASIC FACTS

         On May 22, 2014, Smith stole property from a Meijer store. Loss prevention personnel saw him attempt to enter vehicles in the parking lot before heading into a residential neighborhood. A police officer searching for Smith spotted him lying in a grassy area. Smith admitted at his plea hearing that when he saw the officer, he ran. The officer commanded Smith to stop, but he got away by jumping over a fence. A canine unit was called in and tracked Smith to a locked camper in the yard of a nearby home. Smith admitted that he entered the camper to hide from the police. The camper's owner did not have keys to unlock the door. However, with the owner's permission the police broke a window to gain entry. Smith did not immediately exit the camper, and when he did he refused to comply with police commands and had to be physically taken into custody.

         II. OFFENSE VARIABLE 19

         A. STANDARD OF REVIEW

         Smith argues that the trial court erred in scoring offense variable (OV) 19 at fifteen points. "Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). "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." Id.

         B. ANALYSIS

         "Our primary task in construing a statute is to discern and give effect to the intent of the Legislature." People v Williams, 268 Mich.App. 416, 425; 707 N.W.2d 624 (2005). "In discerning legislative intent, this Court gives effect to every word, phrase, and clause in the statute" and "must consider both the plain meaning of the critical words or phrases as well as their placement and purpose in the statutory scheme." Id. Further, we "must avoid a construction that would render any part of a statute surplusage or nugatory." Id. "If the statutory language is clear and unambiguous, then no judicial construction is necessary or permitted." People v Campbell, ___ Mich.App. ___, ___; ___ N.W.2d ___ (2016) (Docket No. 324708); slip op at 10 (citation omitted).

         OV 19 addresses an offender's "threat to the security of a penal institution or court or interference with the administration of justice or the rendering of emergency services." MCL 777.49. In assessing points under OV 19, a court may consider the offender's conduct after the completion of the sentencing offense. People v Smith, 488 Mich. 193, 200; 793 N.W.2d 666 (2010). The sentencing court must assess fifteen points if:

The offender used force or the threat of force against another person or the property of another person to interfere with, attempt to interfere with, or that results in the interference with the administration of justice or the rendering of emergency services. [MCL 777.49(b).]

         However, the court must only assess ten points if "[t]he offender otherwise interfered with or attempted to interfere with the administration of justice." MCL 777.49(c). "[T]he plain and ordinary meaning of 'interfere with the administration of justice' for purposes of OV 19 is to oppose so as to hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes by judicial process." People v Hershey, 303 Mich.App. 330, 343; 844 N.W.2d 127 (2013). Moreover, "OV 19 is generally scored for conduct that constitutes an attempt to avoid being caught and held ...


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