Sentencing; Whether the trial court properly scored 10 points for Offense Variable (OV) 4 (“serious psychological injury” to a victim occurred) when the only evidence to support the scoring was the victim’s fear while the crime was being committed; MCL 777.34(1)(a); People v. Francisco; People v. Lockett; Klooster v. City of Charlevoix; Whether defendant’s admission was sufficient to sustain the scoring; Overruling a portion of People v. Apgar; People v. Davenport (After Remand); People v. Beach (Unpub.)
The court held that “(a) points for OV 4 may not be assessed solely on the basis of a trial court’s
conclusion that a ‘serious psychological injury’ would normally occur as a result of the crime perpetrated against the victim and (b) evidence of fear while a crime is being committed, by itself, is insufficient to assess points for OV 4.”
Thus, the trial court erred by assessing 10 points for OV 4. Because the subtraction of 10 points lowered defendant’s guidelines range for his guilty plea to armed robbery, from a minimum of 81 to 135 months in prison to a minimum of 51 to 85 months in prison, the court vacated the sentence and remanded for resentencing. The issue was whether the trial court erred by assessing 10 points for OV 4 when the only evidence to support the scoring was the victim’s fear while the crime was being committed. It “assessed 10 points on the sole basis of its conclusion that people would typically suffer a psychological injury when confronted with the instant crime. However, a trial court ‘may not simply assume that someone in the victim’s position would have suffered psychological harm because MCL 777.34 requires that serious psychological injury ‘occurred to a victim,’ not that a reasonable person in that situation would have suffered a ‘serious psychological injury.’” Thus, it erred in scoring OV 4. The court’s review of the scoring was not limited to the reasoning provided by the trial court. “Defendant’s admission during his plea that the victim 'was afraid that [defendant] was going to shoot her' may alternatively support scoring OV 4 at 10 points on the basis of” Apgar. However, the court agreed with the Beach panel and overruled “Apgar to the extent it held that a victim’s fear during a crime, by itself and without any other showing of psychological harm, is sufficient to assess 10 points for OV 4. While crime victims are often obviously, and understandably, frightened when a crime is being perpetrated, this fear does not necessarily result in a ‘serious psychological injury'” and “a court cannot merely assume that a victim has suffered a ‘serious psychological injury’ solely because of the characteristics of the crime.” Thus, defendant’s admission was insufficient to sustain the trial court’s scoring.