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People v. Dumback

Court of Appeals of Michigan

December 17, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
TIFFANY LYN-DEE DUMBACK, Defendant-Appellant.

          Chippewa Circuit Court LC No. 17-003168-FH

          Before: Murray, C.J., and Sawyer and Gleicher, JJ.

          PER CURIAM.

         The legislative sentencing guidelines counsel the assessment of 100 points for Offense Variable (OV) 3 when "[a] victim was killed" as a result of "the commission of" the sentencing offense, but only if "homicide is not the sentencing offense." MCL 777.33(1)(a), (2)(b). For purposes of scoring the guidelines, "homicide" includes "any crime in which the death of a human being is an element." MCL 777.1(c). Unpublished cases from this Court indicate that "the death of a human being" is not an element of failure to stop at the scene of an accident when at fault and resulting in death, MCL 257.617(3); rather, this Court has described MCL 257.617(3) as a "penalty provision." Those cases were wrongly decided and we now clarify that a violation of MCL 257.617(3) is a "homicide" for purposes of scoring OV 3 under MCL 777.33. Therefore, a 100-point score for OV 3 is not permitted.

         Tiffany Dumback pleaded guilty to failure to stop at the scene of an accident when at fault and resulting in death and the trial court assessed 100 points for OV 3 at sentencing. As this score was not permitted, we vacate Dumback's sentences and remand for resentencing under the corrected guidelines. We otherwise affirm Dumback's convictions.

         I. BACKGROUND

         At approximately 10:30 p.m. on December 3, 2016, Chippewa County Sheriff's deputies responded to a single vehicle rollover accident. The only person inside the pickup truck, Benjamin Hilts, was in the passenger seat; he had been killed in the accident. The deputies found open and unopened beer containers in the truck cabin and noted that Hilts smelled of alcohol. The deputies further noted that the driver's seat was pulled too close for Hilts to have been driving. A search of the vehicle uncovered a cellular telephone and purse belonging to Hilts's girlfriend, Tiffany Dumback.

         Dumback was driving Hilts's truck when the accident occurred. She was travelling 82 mph in a 55-mph zone. Dumback asserted that she and Hilts were arguing at the time of the accident and that the truck had many structural and mechanical issues that made it hard to control. After the accident, Dumback "did not know what to do," so she exited the vehicle and ran to her parents' house, which was approximately a mile from the accident scene. Dumback claimed that she did not report the accident to the authorities when she reached her destination because her sister was listening to a police scanner and learned that assistance had already been summoned. There is no record indication that Dumback was intoxicated during these events.

         Sheriff's deputies arrested Dumback in January 2017. The prosecutor charged her with manslaughter with a motor vehicle, failure to report an accident, reckless driving causing death, failure to stop at the scene of an accident when at fault resulting in death, and a moving violation causing death. Dumback ultimately pleaded guilty to failure to stop at the scene of an accident when at fault and resulting in death, MCL 257.617(3), and careless or negligent driving, MCL 257.626b.

         Before sentencing, the Department of Corrections (DOC) created a presentence investigation report (PSIR) and sentencing information report (SIR). In scoring Dumback's prior record variables (PRVs), the DOC assessed two points for PRV 5, placing Dumback in PRV Level B. The DOC scored several offense variables (OVs). At issue in this appeal is the DOC's assessment of 100 points for OV 3. OV 3 is governed by MCL 777.33, which provides, in relevant part:

(1) [OV] 3 is physical injury to a victim. Score [OV] 3 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:
(a) A victim was killed………………………………..100 points.
(b) A victim was killed………………………………..50 points.
* * *
(f) No physical injury occurred to a victim……………0 points.
(2) All of the following apply to scoring [OV] 3:
* * *
(b) Score 100 points if death results from the commission of a crime and homicide is not the sentencing offense. . . .

MCL 777.33(2)(c), which is not applicable in this case, directs that 50 points should be scored if the victim is killed, the "offense involve[d] the operation of a" motor vehicle, and the offender was under the influence of drugs or alcohol. The assessment of 100 points for OV 3 led to a total OV score of 120 and placement in OV Level VI.[1]

         Dumback contended at sentencing that zero points should have been assessed for OV 3 because OV 3 precludes scoring 100 points if the death of a human being is an element of the offense. She asserted that the death of a human being is an element of failure to stop at the scene of an accident when at fault and resulting in death. Relying on People v Conklin, unpublished per curiam opinion of the Court of Appeals, issued October 28, 2004 (Docket No. 248542), unpub op at 2, the trial court determined that the death of a human being is not an element of the offense because "[a] person can commit an offense of failing to stop at a scene of an accident without causing the death of another person." Accordingly, the court affirmed the 100-point score for OV 3.

         The recommended minimum sentencing guidelines range for a Class C offense against a person, for a defendant scored in grid B-VI is 36 to 71 months. The trial court sentenced Dumback within that range to a term of 57 to 180 months' imprisonment. Without the 100-point score for OV 3, Dumback would have been scored in grid B-II, with a recommended minimum guidelines range of only 5 to 17 months.

         Dumback subsequently filed a delayed application for leave to appeal to this Court. We granted the application limited to the following issues:

(1) Whether the death of a human being is an element of the offense defined in MCL 257.617(3) for purposes of Offense ...

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