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People v. Calloway

Supreme Court of Michigan

May 19, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
TIWAUN MAURICE CALLOWAY, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
TIWAUN MAURICE CALLOWAY, Defendant-Appellee.

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder

         Syllabus

         Tiwaun M. Calloway was convicted of second-degree murder, MCL 750.317, on an aiding-and-abetting theory following a jury trial in the Wayne Circuit Court for his role in a man's death. The court, Megan Maher Brennan, J., sentenced Calloway to 20 to 50 years of imprisonment. At sentencing, the court scored Offense Variable 5 (OV 5), MCL 777.35, at 15 points for the serious psychological injury suffered by two of the victim's family members as a result of the victim's death. Calloway sought delayed leave to appeal. While his leave application was pending, Calloway moved in the trial court for reissuance of the judgment of sentence under MCR 6.428. The trial court granted the motion, and Calloway filed a claim of appeal from the reissued judgment. The Court of Appeals then granted Calloway's delayed application for leave. The appeals were consolidated. The Court of Appeals, Gleicher, P.J., and Jansen and Shapiro, JJ., affirmed Calloway's conviction in an unpublished per curiam opinion issued on March 22, 2016, but the Court vacated Calloway's sentence after it determined that OV 5 should have been scored at zero points. Both Calloway and the prosecution sought leave to appeal in the Supreme Court-Calloway, to appeal his conviction, and the prosecution, to appeal the Court of Appeals' decision regarding OV 5.

         In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to appeal and without oral argument, held:

         Points may be assessed for OV 5 even absent proof that a victim's family member has sought or received, or intends to seek or receive, professional treatment. OV 5 may also be scored when a victim's family member has suffered a serious psychological injury that may require professional treatment in the future, regardless of whether the victim's family member presently intends to seek treatment. Because there was adequate proof of such an injury in this case, the Court of Appeals' ruling that the trial court erred by assessing 15 points for OV 5 had to be reversed.

         1. Pursuant to MCL 777.22(1), OV 5 must be scored for certain homicide or homicide-related offenses. MCL 777.35 specifies that 15 points should be assessed if the serious psychological injury to a victim's family member may require professional treatment and that the fact that treatment has not been sought is not determinative. In scoring OV 5, a trial court should consider the severity of the injury and the consequences that flow from it, including how the injury has manifested itself before sentencing and how it is likely to do so in the future, and whether professional treatment has been sought or received. Contrary to the suggestion of the Court of Appeals, points may be assessed for OV 5 even when the family member does not have a present intention to seek treatment. All that is required to assess points for OV 5 is the existence of a serious psychological injury that may require treatment. In this case, evidence was presented that two of the victim's family members suffered serious psychological injuries that may require professional treatment in the future. The trial court properly assessed 15 points for OV 5 because there was ample evidence of the seriousness of the injuries and their long-lasting effects. The Court of Appeals' contrary ruling had to be reversed.

         2. Calloway's application for leave to appeal that portion of the Court of Appeals' judgment rejecting his challenges to his conviction was denied for failure to persuade the Court that the questions presented in his application should be reviewed.

         3. Remand was required under People v Lockridge, 498 Mich. 358 (2015), given the Court of Appeals' conclusion that the trial court engaged in judicial fact-finding in scoring two offense variables.

         Reversed in part and remanded.

         BEFORE THE ENTIRE BENCH (except Wilder, J.)

          OPINION

          PER CURIAM.

         At issue in this case is whether the trial court properly assessed 15 points for Offense Variable 5 (OV 5).[1] This question turns on whether the proofs were sufficient to establish that a "[s]erious psychological injury requiring professional treatment occurred to a victim's family."[2] We hold that 15 points may be assessed for OV 5 even absent proof that a victim's family member has sought or received, or intends to seek or receive, professional treatment. In particular, OV 5 may also be scored when a victim's family member has suffered a serious psychological injury that may require professional treatment in the future, regardless of whether the victim's family member presently intends to seek treatment. Because there was adequate proof of such an injury in this case, we reverse the Court of Appeals' ruling that the trial court erred by assessing 15 points for OV 5.

         I. FACTS AND PROCEDURAL HISTORY

         Defendant, Tiwaun Calloway, and his friend Damian Jones were searching for the man they believed stole a cell phone from Jones's girlfriend. Defendant drove to Jones's residence, where Jones retrieved an AK-47 rifle. They later confronted the suspected thief. As the man tried to run away, Jones opened fire, killing him. Defendant then drove Jones away from the scene. Defendant was convicted of second-degree murder[3] on an aiding and abetting theory and was sentenced to 20 to 50 years in prison.

         At sentencing, the trial court scored OV 5 at 15 points. The Court of Appeals summarized the evidence supporting this score as follows:

The presentence investigation report (PSIR) reflects that the victim's stepfather was interviewed. He stated that the victim's mother was "having a very hard time dealing with this situation, " and explained that the "incident has had a tremendous, traumatic effect on him and his family." He explained that the incident "will change them for the rest of their lives." The victim's stepfather expressed similar thoughts when he made a statement at sentencing.[4]

         However, the Court of Appeals concluded that OV 5 should have been scored at zero points because

there is no evidence indicating that any member of the victim's family intended to receive professional treatment in relation to the incident or required professional treatment because of the incident. See People v Portellos, 298 Mich.App. 431, 449; 827 N.W.2d 725 (2012) (affirming the trial court's refusal to assess points for OV 5 when there was no evidence that members of the victim's family intended to receive treatment).[5]

         The prosecution now seeks leave to appeal in this Court from the Court of Appeals' holding that OV 5 was misscored.[6]

         II. STANDARD OF REVIEW

         A trial court's factual determinations must be supported by a preponderance of the evidence and are reviewed for clear error.[7] "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 ...


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