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People v. Dixon-Bey

Supreme Court of Michigan

July 29, 2019

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Dawn Marie DIXON-BEY, Defendant-Appellee.

          Jackson CC: 15-004596-FC

         Bridget M. McCormack, Chief Justice, David F. Viviano, Chief Justice Pro Tem, Stephen J. Markman, Brian K. Zahra, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Justices

          Order

          On January 23, 2019, the Court heard oral argument on the application for leave to appeal the September 26, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

         Markman, J. (dissenting).

          I respectfully dissent from this Court’s order denying leave to appeal. Because I do not believe the trial court abused its discretion in sentencing defendant, I would reverse the judgment of the Court of Appeals and reinstate the sentence imposed by the trial court for second-degree murder.

         Following a jury trial, defendant was acquitted of first-degree murder and convicted of second-degree murder. The trial court sentenced defendant to imprisonment for 35 to 70 years, which was a 15-year departure from the guidelines minimum sentence range. In a published and split decision, the Court of Appeals held that defendant’s sentence was not proportionate and therefore vacated her sentence and remanded for resentencing. People v. Dixon-Bey, 321 Mich.App. 490, 909 N.W.2d 458 (2017).

         The Court of Appeals held that "most, if not all, of the factors discussed by the trial court to support its departure sentence were contemplated by at least one offense variable (OV) ... [and] [t]he trial court offered no rationale as to why that scoring was insufficient." Id. at 526-527, 909 N.W.2d 458. However, the Court of Appeals misapprehended why the trial court relied on those factors. The Court of Appeals held that the trial court erred by taking into account that defendant stabbed the victim twice in the chest, failed to disclose the location of the murder weapon, and murdered the victim in cold blood:

The trial court emphasized that defendant had stabbed the victim twice in the chest. However, defendant’s aggravated use of a lethal weapon is contemplated in the scoring of OV 1 (aggravated use of weapon), MCL 777.31, and OV 2 (lethal potential of weapon possessed or used), MCL 777.32. The trial court offered no rationale as to why that scoring was insufficient to reflect the nature of the stabbing.... Further, the trial court’s reliance on the fact that defendant apparently failed to disclose the location of the murder weapon would ordinarily trigger the application of OV 19 (interfering with the administration of justice), MCL 777.49, not an upward departure. The trial court also referred to the "cold-blooded" nature of the crime; yet we find it interesting that the trial court and parties apparently agreed that OV 7 (aggravated physical abuse), MCL 777.37, under which points may be assessed for excessive brutality, should not be scored given the facts and circumstances of this case. [Id. ]

          However, the Court of Appeals failed to recognize that the trial court relied on these facts not because it believed the guidelines accorded them inadequate weight, but because it believed they indicated

Page 303

that defendant had actually committed first-degree premeditated murder, something that was not fully taken into consideration by the guidelines.[1] That is, the trial court did not rely on the fact that defendant stabbed the victim in the chest twice simply because it was evidence of an "aggravated use of [a] weapon" or because it was evidence that defendant used a weapon that had a "lethal potential." Similarly, it did not rely on the fact that defendant failed to disclose the location of the murder weapon simply because it was evidence that defendant "interfered with the administration of justice." Nor did it rely on the cold-blooded nature of the crime simply because it was evidence of "aggravated physical abuse." Rather, the court relied on each of these facts, as well as others, as evidence that defendant had committed first-degree premeditated murder, and this was altogether proper on its part.[2]

          While the Court of Appeals acknowledged in passing that the trial court might have relied on the cold-blooded nature of the crime for this reason, see id. at 527, 909 N.W.2d 458 ("The trial court’s reference to the ‘cold-blooded’ nature of the crime may have been based on its belief that the killing was premeditated, which it also emphasized was part of the basis for its sentence."), it failed to appreciate that the court might also have relied on the other factors for the same reason. The Court of Appeals then added that it was "highly skeptical of a trial court’s decision to sentence a defendant convicted of second-degree murder as though the murder was premeditated." Id. at 528, 909 N.W.2d 458.[3] In so asserting, it relied on the fact

Page 304

that OV 6, which pertains to the offender’s intent to kill, must be scored "consistent with a jury verdict unless the judge has information that was not presented to the jury." MCL 777.36(2)(a). The judge here did not possess information that was not presented to the jury regarding defendant’s intent to kill and thus, according to the Court of Appeals, ...


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