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People v. Carpenter

Court of Appeals of Michigan

January 9, 2018

CHAD MICHAEL CARPENTER, Defendant-Appellant.

         Iosco Circuit Court LC No. 15-009390-FC

          Before: Meter, P.J., and Borrello and Boonstra, JJ.

          Boonstra, J.

         Defendant pleaded guilty to armed robbery, MCL 750.529, breaking and entering a building with intent, MCL 750.110, and attempted possession of a firearm by a felon, MCL 750.224f. The trial court sentenced defendant to concurrent prison terms of 225 to 480 months for the armed robbery conviction, 60 to 120 months for the breaking and entering conviction, and 18 to 30 months for the attempted felon in possession conviction. Defendant filed a delayed application for leave to appeal with respect to his sentence for the armed robbery conviction only, which we granted.[1] We affirm.


         Defendant provided a factual basis for his pleas at his plea hearing, admitting that on December 16, 2014 he and his accomplice entered a Rite Aid Store located in the City of Oscoda with the intent to rob the store, that he brandished and pointed a knife at the clerk and demanded money from the cash register, and that the clerk handed him money. Defendant then fled the premises with the money. Defendant further testified that later that day, after the robbery at the Rite Aid, he broke into the Mai Tiki Resort with the intent to steal, taking various hand tools and an air compressor from a storage unit, placing them in his vehicle, and leaving the premises. Finally, defendant testified that on September 17, 2015 he attempted through text messages to buy a handgun from an undercover police officer. Defendant admitted that he knew that he was a felon and could not legally possess a handgun. Defendant went to the designated sale location with $200 in order to complete the sale, but was arrested by police officers for his attempted purchase of the handgun.

         As part of defendant's plea bargain, defendant and the prosecution agreed that Offense Variable (OV) 19 (interference with the administration of justice) would be assessed zero points for the armed robbery and breaking and entering convictions. However, after the plea hearing but before sentencing, defendant attempted to smuggle controlled substances into jail, and when discovered, allegedly struck and injured another inmate whom defendant believed had informed jail authorities of his smuggling scheme. At sentencing, defendant recognized that the trial court could no longer assess zero points for OV 19, but argued that it should be assessed at 15 points because "the incident that was alleged to have occurred at the jail allegedly required medical attention, and did allegedly disrupt the criminal justice system or the pursuance of criminal justice." See MCL 777.49(b). The prosecution argued that OV 19 should be assessed at 25 points because the conduct "threatened the security of a penal institution or court." See MCL 777.49(a). The trial court assessed 25 points for OV 19.

         Based on the OV 19 score and the other OV and Prior Record Variable ("PRV") scores that are not being challenged on appeal, defendant was subject to a guidelines minimum sentence range of 135 to 225 months. The trial court sentenced defendant to 225 months to 480 months, with credit for 334 days served.

         After sentencing, defendant moved to correct his OV 19 score and for resentencing, claiming that the trial court had improperly assessed 25 points for OV 19 when it should have assessed zero points. Defendant argued that since OV 19 "only applies to the sentencing offense, " and the charge of assault of an inmate had been dismissed and the controlled substance smuggling was not connected to the sentencing offense, OV 19 should have been assessed at zero points. With an OV 19 score of zero points, defendant's guidelines minimum sentence range would have changed to 126 months to 210 months. The prosecution argued that defendant's interference with the administration of justice was connected to the sentencing offense because "the reason he was in jail in the first place was because of the underlying armed robbery charge." The trial court denied defendant's motion, concluding that because defendant's conduct of smuggling drugs and allegedly assaulting an individual in jail "threatened the security of the penal institution, and [did so] while he was in there awaiting [sentencing, ]" it was "connected enough." Further, the court noted that defendant's sentencing occurred after People v. Lockridge, 498 Mich. 358, 391-392; 870 N.W.2d 502, cert den __US__ 136 S.Ct. 590; 193 L.Ed.2d 487 (2015), that the advisory guidelines therefore only had to be taken into account, and that, given defendant's prior record and the seriousness of this offense, even if OV 19 were to be assessed at zero points, the sentence imposed was reasonable and resentencing would not be required.

         This appeal followed. On appeal, defendant challenges the scoring of OV 19 at 25 points, as well as the reasonableness of his armed robbery sentence.

         II. OV 19

         Defendant argues that the trial court erred by scoring 25 points for OV 19, because the alleged subsequent actions in jail were not connected to the sentencing offense. We disagree. Defendant preserved this issue by moving the trial court for resentencing. See People v. Kimble, 470 Mich. 305, 311; 684 N.W.2d 669, 672 (2004). With regard to sentencing guidelines, we review for clear error a trial court's factual determinations; those factual determinations must be supported by a preponderance of the evidence. See People v. Hardy, 494 Mich. 430, 438; 835 N.W.2d 340, 344 (2013). However, "[w]hether 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.

         "Offense Variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise." People v. McGraw, 484 Mich. 120, 135; 771 N.W.2d 655, 664 (2009); citing People v. Sargent, 481 Mich. 346, 350; 750 N.W.2d 161 (2008). The sentencing offense is defined as "the crime of which the defendant has been convicted and for which he or she is being sentenced." Id. at 122 n 3. The calculation of an OV 19 score is governed by MCL 777.49, which provides:

Offense variable 19 is threat to the security of a penal institution or court or interference with the administration of justice or the rendering of emergency services. Score offense variable 19 by determining which of the following apply and by assigning the number of ...

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