People v. Polzin

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. GERALD THEODOREANWAR POLZIN, Defendant-Appellant.

No. 356047

Court of Appeals of Michigan

December 21, 2021

UNPUBLISHED

St Clair Circuit Court LC No. 19-001184-FH

Before: Boonstra, P.J., and Gleicher and Letica, JJ.

PER CURIAM

Gerald Polzin pleaded guilty to charges of failure to stop at the scene of an accident resulting in serious impairment, MCL 257.617(2); operating a motor vehicle without security, MCL 500.3102; and operating a motor vehicle while his license was suspended, MCL 257.904(1). We granted leave to appeal People v Polzin, unpublished order of the Court of Appeals, entered February 23, 2021 (Docket No. 365047), to consider Polzin's challenges to the scoring of Offense Variables (OVs) 3, 4, and 17. We discern no error in the scoring of Polzin's guidelines. We affirm.

I. BACKGROUND

On October 16, 2015, Polzin decided to drive, angry and intoxicated, with his nephew, Clemence Polzin (Clemence), in the passenger seat. Not only was Polzin intoxicated; his driver's license had been suspended and he had not secured no-fault insurance for his vehicle. A concerned family member followed Polzin in a separate vehicle. Polzin soon lost control of the vehicle and drove nose down into a ditch. The family member helped Clemence and Polzin out of the damaged vehicle and drove them to the McLaren Lapeer Emergency Room. A hospital staff member notified the St. Clair County Sheriff's Office that they were treating two individuals injured in an unreported motor vehicle accident. By the time deputies arrived, Polzin had left the building. The deputies interviewed Clemence and located the abandoned vehicle in the ditch.

Clemence was seriously injured in the accident. He required stitches over his right eye and doctors performed a skin graft around his left eye. Clemence underwent two surgeries to reconstruct the area around his left eye and had scarring and "constant irritation" to the skin in that area. He also experienced nerve damage that resulted in a loss of sensation on the right side of his face. Four years later, Clemence's face remained visibly disfigured. Clemence suffered two ruptured and herniated discs in his back. And Clemence required neurologic treatment for seizures and assistance from a pain clinic as a result of his injuries. These injuries prevented Clemence from working for an extended period of time. Clemence reported that that had all taken an "emotional toll" on him and his family.

Deputies had difficulty locating Polzin, leading to an extensive delay in charging him. Polzin eventually pleaded guilty in 2019 to failure to stop at the scene of an accident resulting in serious impairment, operating a motor vehicle without security, and operating with a suspended license. The court ultimately sentenced Polzin as a third habitual offender to 2 to 10 years' imprisonment for his failure to stop at the scene of an accident resulting in serious impairment conviction, and 20 days' incarceration for his other offenses.

II. ANALYSIS

Polzin now challenges the assessment of 25 points for OV 3, 10 points for OV 4, and 5 points for OV 17. We review for clear error the trial court's factual determinations at sentencing, findings that must be supported by a preponderance of the evidence. People v Carter, 503 Mich. 221, 226; 931 N.W.2d 566 (2019). "Whether the facts, as found, are adequate to warrant the assessment of points under the pertinent OVs . . . is a question of statutory interpretation" that we review de novo. Id. "Our goal in interpreting a statute is to ascertain and give effect to the intent of the Legislature . . . . 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 Dumback, 330 Mich.App. 631, 637; 950 N.W.2d 493 (2019) (cleaned up).

A. OVs 3 AND 4

MCL 777.33(1)(c) provides for the assessment of 25 points for OV 3 when "[l]ife threatening or permanent incapacitating injury occurred to a victim" of an offense. MCL 777.34(1)(a) provides for the assessment of 10 points for OV 4 when "[s]erious psychological injury requiring professional treatment occurred to a victim." Polzin argues that the court could assess no points for either variable because Clemence's physical and psychological injuries were caused by the accident itself, not by Polzin's failure to stop at the scene of the accident. As courts may only score the OVs in reference to the sentencing offense, Polzin urges, the trial court in this case could only look to the failure to stop and not the preceding accident. See People v McGraw, 484 Mich. 120, 135 771 N.W.2d 655 (2009). Polzin's argument reveals a misunderstanding of the crime to which he pled.

Polzin pleaded guilty to failure to stop at the scene of an accident resulting in serious impairment or death in violation of MCL 257.617(2). MCL 257.617 provides:

(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.

This Court has already interpreted MCL 257.617 and determined that the underlying accident and a resultant serious impairment or death are both elements of the sentencing offense. In Dumback, 330 Mich.App. at 637, the defendant pleaded guilty of leaving the scene of accident that resulted in death in violation of subsection (3). The question before this Court was whether the victim's death was a "homicide." If so, the trial court could not score 100 points for OV 3 under MCL 777.33(1)(a) despite that "[a] victim was killed," as MCL 777.33(2)(b) precluded such a score when homicide is the sentencing offense. Dumback, 330 Mich.App. at 633.

Relevant to the issue now before us, this Court held in Dumback, 330 Mich.App. at 642, that MCL 257.617(3) was not merely a penalty enhancement of MCL 257.617(1); rather, it was a separate offense with its own elements. To be convicted of MCL 257.617(3), the defendant must have committed all the elements of MCL 257.617(1) ("the driver of a vehicle was involved in an accident, knew or had reason to know that the accident occurred, and did not stop or report it") plus the accident must have resulted in the death of another individual. Dumback, 330 Mich.App. at 642. Accordingly, the accident, the failure to stop, and the victim's injury are all elements of the offense.

Further supporting application of the Dumback analysis to the current case is the Dumback Court's analysis of the unpublished case of People v Lacosse unpublished per curiam opinion of the Court of Appeals, issued September 16, 2014 (Docket No. 310987). Dumback, 330 Mich.App. at 640. In Lacosse, unpub op at 1, the defendant pleaded guilty to failure to stop at the scene of an accident caused by the defendant and resulting in death, MCL 257.617(3). The defendant objected to the trial court's assessment of points for OV 3, arguing that his failure to stop did not cause the victim's death, the accident preceding his failure to stop did. Lacosse, unpub op at 4. The Lacosse Court found that argument unpersuasive. Id. Although Dumback overruled the result of Lacosse, the Dumback Court agreed with the Lacosse Court's finding that the underlying accident caused by a defendant is an element...