Chippewa Circuit Court LC No. 17-003168-FH
Before: Murray, C.J., and Sawyer and Gleicher, JJ.
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 Unpublished cases from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
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.
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.
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.
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
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
(b) A victim was
* * *
(f) No physical injury occurred to a
(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
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.
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.
subsequently filed a delayed application for leave to appeal
to this Court. We granted the application limited to the
(1) Whether the death of a human being is an element of the
offense defined in MCL 257.617(3) for purposes of Offense