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Opinion Date: 12/18/2012
e-Journal Date: 01/24/2013
Full Text Opinion

Practice Area(s):   Criminal Law

Issues: Sentencing; Whether the trial court properly scored PRV 1 at 25 points (prior high severity felony convictions), OV 4 at 10 points (serious psychological injury to the victim), OV 10 at 10 points (exploitation of a vulnerable victim), and OV 16 at 1 point (value of lost property); People v. Lockett; People v. Davenport (After Remand); Facts in the presentence report; People v. Walker; People v. Uphaus (On Remand); People v. Waclawski; People v. Rosenberg; People v. Shively; Ineffective assistance of counsel; Ypsilanti Fire Marshal v. Kircher (On Remand); People v. Matuszak
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. McKenzie
e-Journal Number: 53552
Judge(s): Per Curiam - Whitbeck, Fitzgerald, and Beckering

The court vacated the defendant's sentence and remanded for resentencing. The trial court improperly scored PRV 1, and the prosecution conceded that the error required resentencing. Otherwise the court affirmed. The victim G, who is both deaf and mute, testified that on 6/11, her dog alerted to defendant's presence at the front door of her home. She lives alone and did not recognize him. Defendant gestured that he needed to use a telephone and G allowed him to enter her house. Defendant asked G if he could have money for gas. She gave him $40 in cash, which she retrieved from the kitchen table. He then left. Later that evening, defendant again went to G's door and gestured that he needed to use the telephone. G again allowed him to enter her home, and he went into the dining room to use the telephone. G noticed that he "kept peeking through the doorway" at her. He took the remaining money from the kitchen table, which G testified was more that $30, and left her home. G called police. Officer H testified that G appeared upset and anxious when he arrived at her home. He said that communicating with her was "tough" but that he eventually used a pen and paper to obtain defendant's description. G later identified defendant in a lineup. The jury found him guilty of larceny in a building. In her victim's impact statement, G claimed that defendant stole between $200 and $300 and her food assistance card. G also stated that the theft affected her daily life and made her afraid to leave her home and feel unsafe while shopping. The trial court scored defendant under the sentencing guidelines as follows - 25 points under PRV 1, 10 points under OV 4, 10 points under OV 10, and 1 point under OV 16. Consistent with the recommended guidelines, the trial court sentenced defendant to serve 30 to 96 months' imprisonment. The trial court properly scores PRV 1 if the defendant had previous convictions for committing serious felony offenses as defined in the statute. The prosecution conceded that defendant's prior convictions were not for any crimes that fell under this section's definition of "prior high severity felony conviction," and thus, conceded that the trial court improperly scored 25 points for PRV 1. The court agreed. The prosecution also conceded that defendant was entitled to resentencing on the basis of this mistake because the mistake placed him in a higher guidelines range. Thus, the court vacated his sentence and remanded to the trial court to score 0 points for PRV 1 and to resentence him within the proper guideline range. Defendant also argued that there was no evidence that the victim suffered from a serious psychological injury requiring professional treatment. G expressed that defendant's crime affected her ability to undertake daily activities and characterized her fear and anxiety as "emotional distress." She did not say whether she sought professional treatment. However, whether she actually sought treatment is not determinative. The court concluded that the trial court did not clearly err when it scored defendant 10 points under OV 4, when G stated that the incident emotionally distressed her and it affected her daily life.

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