Motion for relief from judgment; MCR 6.508(D); Sentencing; Scoring of OV 5; MCL 777.35(1)(a); People v Bailey

Holding that 15 points should not have been scored for OV 5 based on the record, the court concluded defendant showed good cause and actual prejudice entitling him to resentencing under MCR 6.508(D)(3). Thus, it found that the trial court abused its discretion in denying his motion for relief from judgment. He was convicted of second-degree murder, CCW, marijuana possession, and felony-firearm. He was sentenced to concurrent terms of 300 to 650 months for murder, 2 to 5 years for CCW, and 1 day for the marijuana conviction, with a 2-year felony-firearm sentence to run consecutive to the murder sentence. Defendant argued here “that the trial court incorrectly assessed 15 points for OV 5, that his attorneys were ineffective for” not raising objections to this, and that the trial court erred by not granting his motion for relief from judgment as a result. The court noted that the “victim’s father described the following consequences of the victim’s death: the victim was no longer in his life, and the family was devastated by the loss. The only other effect described by the father was that he was upset over defendant’s demeanor at trial, but this feeling resulted from the trial, not the victim’s death. A victim’s father’s feelings about the defendant’s lack of remorse or compassion is not the kind of injury contemplated by OV 5.” The court added that, “even if such feeling could be considered, being upset is similar to grieving in this context, which is not sufficient for serious psychological harm under OV 5.” It noted that there were “no descriptions in the record of specific manifestations of present or future serious psychological injury. In fact, the PSIR provided that the victim’s family was moving on, which did not suggest a need for professional treatment.” Because the record did not support scoring 15 points for OV 5, the court concluded defense counsel was deficient for not raising a challenge to this in the trial court and in the original appeal. Further, defendant was prejudiced as a 15-point reduction “would result in a lowered minimum guidelines range of 180 months to 300 months, or life.” Reversed and remanded for resentencing.