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People v. White

Supreme Court of Michigan

December 26, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ANTHONY TYJUS WHITE, Defendant-Appellant.

          Stephen J. Markman Chief Justice, Justices Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Kurtis T. Wilder, Elizabeth T. Clement.

         Syllabus

         Anthony T. White pleaded guilty in the Berrien Circuit Court to charges of armed robbery, MCL 750.529, and breaking and entering, MCL 750.110, in connection with the robbery of a gas station during which he held a gun to the cashier's head. The court, Dennis M. Wiley, J., sentenced defendant to 108 to 480 months in prison for armed robbery and 23 to 120 months in prison for breaking and entering. The court had assessed defendant 10 points for Offense Variable (OV) 4, MCL 777.34, to reflect its finding that serious psychological injury requiring professional treatment occurred to a victim. This finding was based solely on the facts that defendant had held a gun to the cashier's head and that she heard a trigger being pulled, which the court concluded was sufficient to support its scoring of OV 4 despite the lack of evidence that the cashier had suffered psychological distress as a result. The Court of Appeals denied defendant's delayed application for leave to appeal, and defendant sought leave to appeal in the Supreme Court.

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

         Points for OV 4 may not be assessed solely on the basis of a trial court's conclusion that a serious psychological injury would normally occur as a result of the crime perpetrated against the victim, and evidence of fear while a crime is being committed, by itself, is insufficient to assess points for OV 4. Accordingly, the trial court erred by assessing 10 points for OV 4. Because the subtraction of 10 points lowered defendant's guidelines range for his guilty plea to armed robbery from a minimum of 81 to 135 months in prison to a minimum of 51 to 85 months in prison, the judgment of sentence was vacated and the case was remanded for resentencing. To the extent that People v Apgar, 264 Mich.App. 321 (2004), held that a victim's fear during a crime was sufficient to assess 10 points for OV 4 without any other showing of psychological harm, it was overruled.

         1. MCL 777.34(1)(a) provides that OV 4 is correctly scored at 10 points when a serious psychological injury requiring professional treatment occurred to a victim. The trial court here assessed 10 points on the sole basis of its conclusion that a person would typically suffer a psychological injury when confronted with the instant crime. However, to support a score of 10 points, MCL 777.34 requires that serious psychological injury occurred to a victim, not that a reasonable person in that situation would have suffered a serious psychological injury. Accordingly, the trial court erred in scoring OV 4.

         2. Defendant's admission during his plea that the victim was afraid that he was going to shoot her could have supported scoring OV 4 at 10 points under Apgar, which was often cited for the proposition that a victim's expression of fearfulness during a crime was sufficient to assess 10 points for OV 4. However, the fact that a victim is afraid at the time of the incident, by itself, does not give rise to a serious psychological injury requiring professional treatment. Therefore, to the extent that Apgar held that a victim's fear during a crime, by itself and without any other showing of psychological harm, was sufficient to assess 10 points for OV 4, it was overruled, and defendant's admission was insufficient to sustain the trial court's scoring.

         Judgment of sentence vacated; case remanded to the circuit court for further proceedings.

          Justice Clement took no part in the decision of this case.

         BEFORE THE ENTIRE BENCH (except CLEMENT, J.)

          OPINION

          PER CURIAM.

         The issue in this case is whether the trial court erred by assessing 10 points for Offense Variable (OV) 4 ("serious psychological injury" to a victim occurred) when the only evidence to support this scoring was the victim's fear while the crime was being committed. We conclude that (a) points for OV 4 may not be assessed solely on the basis of a trial court's conclusion that a "serious psychological injury" would normally occur as a result of the crime perpetrated against the victim and (b) evidence of fear while a crime is being committed, by itself, is insufficient to assess points for OV 4. Accordingly, the trial court erred by assessing 10 points for OV 4. Because the subtraction of 10 points lowers defendant's guidelines range for his guilty plea to armed robbery, MCL 750.529, from a minimum of 81 to 135 months in prison to a minimum of 51 to 85 months in prison, we vacate the sentence of the trial court and remand for resentencing. People v Francisco, 474 Mich. 82; 711 N.W.2d 44 (2006).[1]

         Defendant and an accomplice entered a gas station in Berrien County with guns drawn. Defendant held a gun to the cashier's head and demanded money while his accomplice searched the store. The cashier gave them money, and they ordered her to lie down until they left. The victim told police that she thought she heard a trigger being pulled, but neither of the guns went off. During his plea colloquy, defendant agreed that the victim "was afraid that [defendant] was going to shoot her." At sentencing, the trial court rejected defendant's challenge to the scoring of OV 4 at 10 points, reasoning:

Clearly, any person who has been held at gunpoint has some psychological distress, and, clearly, in a situation where they believe their life may be ending. I would suggest when they hear what they believe to be a trigger pulled, that that would heighten their psychological distress to somewhat a greater-much greater degree. While there's nothing, per se, indicating this-that there-that she actually suffered psychological distress, there's nothing to indicate that she was fine, either. And, the Court believes it is reasonable to draw a conclusion that as a result of being held at gunpoint with a trigger being ...

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