People v. Burger

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MATTHEW PRESTON BURGER, Defendant-Appellant.

No. 365782

Court of Appeals of Michigan

January 18, 2024

UNPUBLISHED

St Joseph Circuit Court LC No. 22-024212-FC.

Before: GADOLA, C.J., and MURRAY and YATES, JJ.

PER CURIAM.

Defendant Matthew Preston Burger, appeals by leave granted^[1] his sentence for assault by strangulation in violation of MCL 750.84(1)(b). Defendant pleaded guilty to assault by strangulation and was sentenced to 57 months to 10 years imprisonment. Defendant argues the trial court sentenced him pursuant to an inaccurate guidelines range. We reverse and remand for resentencing.

I. FACTS

In December 2022, defendant discovered that his fiancee, Ashley Parsons, was having an affair. Defendant and Parsons initially decided to stay together. However, in early February, defendant learned that Parsons was continuing the affair. While driving Parsons and her two children back to their home, defendant and Parsons began to argue. When they arrived at the home, the two children went inside while defendant and Parsons stayed in the car. During the course of the argument defendant hit Parsons with his elbow, causing her head to hit the inside of the car. Defendant then put his hand over Parsons' face, covering her mouth and nose. Defendant proceeded to put both of his hands around Parsons' neck, attempting to choke her.

Defendant eventually let Parsons go and she went inside the house. Defendant followed and broke the back-door window of the home. Once inside, defendant threatened to kill their two dogs. Parsons pleaded with defendant to take her car and leave. Parsons took her children and fled next door to a gas station owned by Parsons' mother. There, Parsons called 911 and police arrived at the gas station. Defendant was arrested later that night.

At sentencing on the assault by strangulation conviction, the trial court assessed 10 points for offense variable (OV) 9, finding that defendant put two to nine people in danger of physical injury or death. Defense counsel objected and argued that OV 9 should be assessed 0 points because the two children were not present for the assault, therefore they were not placed in danger of physical injury or death. The trial court found that "the children were placed in danger after, immediately after the assault. He went inside where the children were, still acting out, still threatening the animals and the people there so I'll score it at 10 points." The trial court calculated defendant's sentencing guidelines range to be 29 to 57 months imprisonment. The trial court sentenced defendant to 57 months to 10 years imprisonment (the statutory maximum).

Through appellate counsel defendant timely moved to correct an invalid sentence. Defendant argued that (1) the trial court erred in assessing 10 points for OV 9 because only Parsons was placed in danger of physical injury, and (2) for the first time, defendant argued that the trial court erred in assessing 10 points for prior record variable (PRV) 5 because defendant's juvenile adjudication should not be considered when it is unclear whether he had the assistance of counsel at the plea proceeding. The trial court heard oral argument and denied defendant's motion. Defendant now appeals.

II. DISCUSSION

Defendant raises two issues on appeal. First, defendant argues that the trial court erred when it relied on his post-offense conduct in finding that two to nine victims were placed in danger of injury or loss of life for purposes of assessing 10 points under OV 9. Second, defendant asserts the trial court erred in using defendant's misdemeanor juvenile adjudication in assessing points for PRV 5 because it is unclear whether he had the assistance of counsel. We address each argument in turn.

A. STANDARD OF REVIEW

"This Court reviews for clear error a trial court's findings in support of a particular score under the sentencing guidelines but reviews de novo whether the trial court properly interpreted and applied the sentencing guidelines to the findings." People v Teike, __ Mich.App. __, __; __ N.W.2d __ (2023) (Docket No. 363705); slip op at 1, quoting People v McFarlane, 325 Mich.App. 507, 531-532; 926 N.W.2d 339 (2018). Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made. Id. at __; slip op at 1. "We review de novo issues of statutory construction." Id. at; slip op at 1, quoting People v Gerhard, 337 Mich.App. 680, 685; 976 N.W.2d 907 (2021).

B. OV 9

Defendant argues the trial court erroneously assessed 10 points for OV 9, finding that the children and pets were placed in danger of injury or loss of life. Defendant argues the children were not present for the assault, and pets are not persons for purposes of scoring OV 9. This resulted in an increased inaccurate guidelines range and defendant argues he is entitled to resentencing. We agree.

"Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence." People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013) (citation omitted). The "[o]ffense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable." People v McGraw, 484 Mich. 120, 133; 771 N.W.2d 655 (2009). "The 'sentencing offense' for purposes of scoring OVs is 'the crime of which the defendant has been convicted and for which he or she is being sentenced.'" Id. at 122 n 3.

Offense variables are generally offense-specific. People v Sargent, 481 Mich. 346, 348; 750 N.W.2d 161 (2008). OV 9 assesses points based on the number of victims. MCL 777.39(1). The statute provides that in assessing points, "count each person who was placed in danger of physical injury or loss of life or property as a victim." MCL 777.39(2)(a). Our Supreme Court has found that this language indicates that OV 9 is an offense-specific variable in which only people placed in danger of injury or loss of life when the sentencing offense was committed should be considered. Sargent, 481 Mich. at 350. Also known as McGraw variables, offense-specific variables limit the consideration to conduct occurring during the sentencing offense. See McGraw, 484 Mich. at 126. This is in contrast to offense variables such as OV 12 (contemporaneous felonious acts), where the statute provides that OV 12 applies to acts that occurred within 24 hours of the sentencing offense and have not resulted in separate convictions. See id. at 126-127; MCL 777.42(2)(a). Absent a specific mandate to consider factors or conduct beyond the sentencing offense itself, or in other words "the entire criminal transaction," the court may only consider conduct that occurred during the crime of which defendant was convicted. McGraw, 484 Mich. at 129. A sentencing court may not consider post-offense conduct, id. at 133-134, nor pre-offense conduct to assess points under OV 9, People v Thompson, 314 Mich.App. 703, 711-712; 887 N.W.2d 650 (2016) (holding the trial court erred in considering "conduct engaged in by defendant throughout the two-year course of the sexual abuse, instead of confining its examination to conduct occurring during the sexual assault on [the offense date], which was the only criminal offense to which defendant pleaded no contest."). See also People v Baskerville, 333 Mich.App. 276, 294295; 963 N.W.2d 620 (2020) (finding a child in another room during a murder was not "in danger of physical harm" and was thus not a victim under OV 9).

This is not to say that the entire criminal transaction may never influence a defendant's sentence. McGraw, 484 Mich. at 129. The sentencing court may consider the entire criminal transaction when deciding the ultimate sentence to impose and whether to depart from the guidelines recommendation. Id. But when assessing points for offense-specific variables the court must limit its consideration to the specific sentencing offense to ensure an accurate guidelines range. See id. at 129-130.

Furthermore, "a sentence is invalid if it is based on inaccurate information." People v Miles, 454 Mich. 90, 96; 559 N.W.2d 299 (1997). "A defendant is entitled to be sentenced in accord with the law, and is entitled to be sentenced by a judge who is acting in conformity with such law." People v Francisco, 474 Mich. 82, 90-91; 711 N.W.2d 44 (2006). When there is a scoring error and the error altered the appropriate sentencing guidelines range, it would be "fundamentally unfair to deny a defendant ... the opportunity to be resentenced on the basis of accurate information." Id. at 90.

Here, the trial court assessed 10 points for OV 9, finding that "there were 2 to 9 victims who were placed in danger of physical injury or death." MCL 777.39(1)(c). The sentencing offenses at issue are defendant's convictions for assault by strangulation and domestic violence. See Teike, __ Mich.App. at __; slip op at 2. The trial court relied on the following undisputed facts to find defendant guilty of assault by strangulation:

The Court: And the allegation is that you put your hands over her mouth and nose preventing her from breathing. Did that happen?

The Defendant: Yes, sir. The Court: All right. And it wasn't an accident, is that correct?

The Defendant: That's correct.

And the trial court relied on the following undisputed facts to find defendant guilty of domestic violence:

The Court: . [S]o it first says that you may have struck her in the head with your elbow and then, cause [sic] she had a bloody lip.

The Defendant: Okay. The Court: So was that one movement but you struck her and then you put your hands over her face?

The Defendant: Yes, sir. I didn't continue to

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