People v. Lydic

335 Mich.App. 486

967 N.W.2d 847

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Shaun Paul LYDIC, Defendant-Appellee.

No. 349216

Court of Appeals of Michigan.

Submitted November 10, 2020, at Lansing.

Decided January 28, 2021, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Nancy E. Borushko, Prosecuting Attorney, and Sylvia L. Linton, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jacqueline J. McCann) for defendant.

Before: Redford, P.J., and Riordan and Tukel, JJ.

Tukel, J.

The prosecution appeals as of right defendant's sentence following his jury-trial conviction of assault by strangulation, MCL 750.84(1)(b), and domestic violence, MCL 750.81(2). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve 17 months to 10 years in prison for the assault-by-strangulation conviction and 93 days in jail for the domestic-violence conviction. The prosecution appeals by right, challenging defendant's assault-by-strangulation sentence on the basis that the trial court abused its discretion by imposing an out-of-guidelines sentence below that recommended by the advisory guidelines.¹ Defendant disagrees and argues that the trial court erred by assessing 50 points for Offense Variable (OV) 7. We affirm defendant's sentence.

I. UNDERLYING FACTS

This appeal arises from a physical altercation that took place between defendant and TK on October 14, 2018. TK and defendant were involved in a romantic relationship, and they resided together in an apartment in Bay City, where the events took place. On the day of the altercation, defendant had been to the hospital and was taking antibiotics to treat a serious injury to his arm. After leaving the hospital, defendant began drinking beer at home. TK told defendant to stop drinking because she believed the beer would make the antibiotics defendant was taking less effective. An argument ensued, and TK spat on defendant. Defendant then pushed TK to the ground, put a belt around her neck, choked her with it, and made threatening statements, which we detail below. Following a jury trial, defendant was convicted of assault by strangulation and domestic violence. This appeal followed.

II. OV 7

Defendant argues that the trial court erred by assessing 50 points for OV 7.² We disagree.

A. STANDARD OF REVIEW

When reviewing a trial court's guidelines scoring decisions, the trial 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). "A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made."

People v. Antwine , 293 Mich. App. 192, 194, 809 N.W.2d 439 (2011) (quotation marks and citation omitted). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Hardy , 494 Mich. at 438, 835 N.W.2d 340. "The sentencing court may consider facts not admitted by the defendant or found beyond a reasonable doubt by the jury. Offense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise." People v. Roberts (On Remand) , 331 Mich. App. 680, 687-688, 954 N.W.2d 221 (2020) (quotation marks and citations omitted), rev'd in part on other grounds 506 Mich. 938, 949 N.W.2d 455 (2020).

B. OV 7 IN GENERAL

OV 7 provides that 50 points are to be assessed when

[a] victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense. [ MCL 777.37(1)(a).]

The threshold legal question in this case is whether the phrase "designed to substantially increase the fear and anxiety a victim suffered during the offense" modifies only the fourth category, i.e. , conduct that is "similarly egregious" to sadism, torture, and excessive brutality, or whether even in a case involving sadism, torture, or excessive brutality, the 50-point enhancement applies only if the conduct also was "designed to substantially increase the fear and anxiety a victim suffered during the offense." This issue has evolved over the last several years, as we explain.

C. PEOPLE v HARDY: "SUBSTANTIALLY INCREASE THE FEAR AND ANXIETY" AND THE LEGISLATIVE RESPONSE

In Hardy , our Supreme Court considered the predecessor to the current OV 7. At that time,³ OV 7 provided that 50 points were to be applied if "[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense." MCL 777.37(1)(a), as amended by 2002 PA 137. Our Supreme Court held that

"[o]r" is a word "used to indicate a disunion, a separation, an alternative." While the first "or" may be interpreted as linking the first three categories in a common series, the second "or" separates the last OV 7 category from the series that precedes it. Thus, the use of "or" before the phrase "conduct designed" shows that this phrase is an independent clause that has an independent meaning. [ Hardy , 494 Mich. at 441, 835 N.W.2d 340 (citation omitted).]

Thus, following Hardy , a trial court would "properly assess 50 points under OV 7 if it finds that a defendant's conduct falls under one of the four categories of conduct listed in subsection (1)(a)." Id. at 439-440, 835 N.W.2d 340. As noted, the four categories of conduct listed in Subsection (1)(a) were sadism, torture, excessive brutality, or "conduct designed to substantially increase the fear and anxiety a victim suffered during the offense."

Id. at 440, 835 N.W.2d 340. In other words, if a defendant's conduct constituted at least one of the first three categories of sadism, torture, or excessive brutality, then the 50-point enhancement would apply simpliciter; the fourth category was "conduct designed to substantially increase the fear and anxiety a victim suffered." Id. at 441, 835 N.W.2d 340.

Justice MCCORMACK concurred in Hardy . While joining the majority opinion in full, Justice MCCORMACK wrote "separately to encourage the Legislature to amend MCL 777.37, offense variable (OV) 7, to define, or more clearly articulate its intent in including, the language ‘conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.’ " Id. at 448, 835 N.W.2d 340 ( MCCORMACK , J., concurring). Justice McCormack expressed concern that "the potential for subjectivity inherent in the ‘conduct designed’ language is likely to cause disparate outcomes for criminal defendants in this state even with the guiding principles today's decision provides." Id.

The Legislature did, in fact, amend OV 7 following Hardy . See 2015 PA 137. The amended version of OV 7, still in force today, now provides for a 50-point enhancement when "[a] victim was treated with sadism, torture, excessive brutality, or similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense." MCL 777.37(1)(a).⁴

D. COURT OF APPEALS DECISIONS FOLLOWING THE AMENDMENT OF OV 7

Following the amendment of OV 7, courts have addressed the question of whether the slightly amended phrase "similarly egregious conduct designed to substantially increase the fear and anxiety a victim suffered during the offense" is a separate, fourth category and thus whether "sadism," "torture," and "excessive brutality" also retain their preamendment statuses as separate and independent categories. As with the original enactment that was at issue in Hardy , this inquiry boils down to whether the unamended phrase "designed to substantially increase the fear and anxiety a victim suffered during the offense," modifies only the newly added "similarly egregious" conduct or whether it also applies to each of the categories of sadism, torture, and excessive brutality to which fourth-category conduct must be similarly egregious. This Court has twice addressed the question in published cases following Hardy and the amendment of the guideline language.⁵ See People v. Walker , 330 Mich. App. 378, 948 N.W.2d 122 (2019) ; People v. Rodriguez , 327 Mich. App. 573, 935 N.W.2d 51 (2019).

Rodriguez , decided first, involved only the fourth category of conduct and held that this fourth category requires conduct that substantially increased a victim's fear in a manner "similarly egregious" to sadism, torture, or excessive brutality. Rodriguez , 327 Mich. App. at 578-581, 935 N.W.2d 51. Rodriguez did not reach the issue of whether any one of the categories of sadism, torture, or excessive brutality, standing on its own, required a substantial increase in the victim's level of fear because, as noted, only the fourth category was at issue. Id.

Walker analyzed the legislative amendment of OV 7 and, by essentially following the analysis in Hardy, held that the fourth category remained independent of the others. Walker , 330 Mich. App. at 389-390, 948 N.W.2d 122. Although the Walker Court recognized that legislative amendments of language generally are presumed to change statutory meaning, it dismissed the post- Hardy amendment of the guideline on the basis that "here it is clear that the Legislature only intended a stylistic change to improve clarity." Id. at 390, 948 N.W.2d 122. The Court reached that conclusion by noting that the word "or" used before the last item in the list made the entire list disjunctive; thus, it held that "similarly egregious conduct" constitutes its own category, and the "substantially increase the fear and anxiety" language is part of that category only. Id. The Walker Court thus read the phrase "similarly egregious conduct...