People v. Dumback

330 Mich.App. 631

950 N.W.2d 493

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Tiffany Lyn-Dee DUMBACK, Defendant-Appellant.

No. 345467

Court of Appeals of Michigan.

Submitted December 11, 2019, at Detroit.

Decided December 17, 2019, 9:05 a.m.

Eaman & Gabbara PLLC, Detroit (by Jennifer J. Qonja and Suzan Gabbara ), for Tiffany Dumback.

Amicus Curiae: Criminal Defense Attorneys of Michigan (by Jacqueline J. McCann).

Before: Murray, C.J., and Sawyer and Gleicher, JJ.

Per Curiam.

The 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) and (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 Unpublished cases from this Court indicate that "the death of a human being" is not an element of the offense of failure to stop at the scene of an accident when at fault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 permitted.

Tiffany Dumback pleaded guilty to failure to stop at the scene of an accident when at fault and resulting in death and to careless or negligent driving, MCL 257.626b. The trial court sentenced Dumback to serve 4 years and 9 months to 15 years in prison for failure to stop, and assessed 100 points for OV 3 at sentencing. As this score was not permitted, we vacate Dumback's sentence and remand for resentencing under the corrected guidelines. We otherwise affirm Dumback's convictions.

I. BACKGROUND

At approximately 10:30 p.m. on December 3, 2016, Chippewa County Sheriff's deputies responded to a single-vehicle rollover accident involving a pickup truck. 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.

Dumback was driving Hilts's truck when the accident occurred. She was traveling 82 miles per hour 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 one 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.

Sheriff's 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 and careless or negligent driving.

Before 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, MCL 777.55(1)(e), placing Dumback in PRV Level B. The DOC scored several offense variables. 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 killed .......... 100 points.

(b) A victim was killed .......... 50 points.

* * *

(f) No physical injury occurred to a victim .......... 0 points.

(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 VI.¹

Dumback contended at sentencing that zero points should have been assessed for OV 3 because OV 3 precludes assessing 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), 2004 WL 2412694, 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.

The recommended guidelines minimum sentence 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.

Dumback subsequently filed a delayed application for leave to appeal in this Court. We granted the application limited to the following issues:

(1) Whether the death of a human being is an element of the offense defined in MCL 257.617(3) for purposes of Offense Variable 3 (OV) 3, MCL 777.33, and if so

(2) Whether Model Criminal Jury Instruction 15.14a conflicts with this Court's decision regarding OV 3 scoring in People v. Lacosse , unpublished opinion per curiam of the Court of Appeals, issued September 16, 2014 (Docket No. 310987) , rev'd in part on other grounds 499 Mich. 873 [876 N.W.2d 242] (2016). [People v. Dumback , unpublished order of the Court of Appeals, entered October 26, 2018 (Docket No. 345467).]

II. ANALYSIS

We review de novo the trial court's interpretation of the statutory sentencing guidelines. People v. Babcock , 469 Mich. 247, 253, 666 N.W.2d 231 (2003). "[O]ur goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature. The touchstone of legislative intent is the statute's language. If the statute's language is clear and unambiguous, we assume that the Legislature intended its plain meaning and we enforce the statute as written." People v. Hardy , 494 Mich. 430, 439, 835 N.W.2d 340 (2013) (cleaned up).²

As noted, MCL 777.33(2)(b) precludes assessing 100 points for OV 3 if homicide is the sentencing offense. A "homicide" for purposes of the sentencing guidelines is "any crime in which the death of a human being is an element of that crime." MCL 777.1(c).

Relevant to this appeal, Dumback pleaded guilty to a violation of MCL 257.617(3). MCL 257.617 provides in full:

(1) The driver of a vehicle who knows or who has reason to believe that he or she has been involved in an accident upon public or private property that is open to travel by the public shall immediately stop his or her vehicle at the scene of the accident and shall remain there until the requirements of [ MCL 257.619 ] are fulfilled or immediately report the accident to the nearest or most convenient police agency or officer to fulfill the requirements of [ MCL 257.619(a) and (b) ] if there is a reasonable and honest belief that remaining at the scene will result in further harm. The stop shall be made without obstructing traffic more than is necessary.

(2) Except as provided in subsection (3), if the individual violates subsection (1) and the accident results in serious impairment of a body function or death, the individual is guilty of a felony punishable by imprisonment for not more than 5 years or by a fine of not more than $5,000.00, or both.

(3) If the individual violates subsection (1) following an accident caused by that individual and the accident results in the death of another individual, the individual is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not more than $10,000.00, or both.

MCL 257.617(1) criminalizes leaving the scene after being involved in an accident. MCL 257.617(2) more specifically criminalizes leaving the scene after being involved in an accident that resulted "in serious impairment of a body function or death," and MCL 257.617(3) criminalizes leaving the scene of an accident when at fault and resulting "in the death of another individual."

A

In two unpublished opinions, this Court has held that the conduct described in MCL 257.617(3) does not amount to a "homicide" under the sentencing guidelines and therefore that a convicted defendant can be assessed 100 points for OV 3. See Conklin , unpub. op. at 2; Lacosse , unpub. op. at 4. In Conklin , unpub. op. at 2, a panel of this Court held:

Homicide, i.e., the death of a human being, MCL 777.1(c), is not an element of the failing to stop offense. A person can commit the offense of failing to stop at the scene of

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