Opinion
Docket No. 78957.
Decided April 11, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Robert B. Ebersole, Chief Appellate Attorney, and Susan L. LeDuc, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
On February 8, 1984, defendant pled guilty to three counts of uttering and publishing, MCL 750.249; MSA 28.446. He was sentenced on March 21, 1984, to concurrent terms of from 7 to 14 years' incarceration. He appeals as of right challenging the allocation of points pursuant to the Michigan Sentencing Manual. We affirm.
At sentencing, defense counsel objected to the scoring of several of the offense variables. He explained his position and then, in turn, the court gave its rationale for the point scores. On appeal defendant challenges the scoring of Fraud Offense Variable 8, "Professional/Organized Crime or Ring", and Fraud Offense Variable 17, "Aggregate Value of Property Obtained, Damaged or Destroyed". No objection is made to the determination of defendant's prior record level (F) or the scoring of the remaining offense variables (4 points total). If we uphold the trial court on either point allocation, the offense severity level remains at III and the sentence imposed will be within the recommended range.
We first consider defendant's challenge to O.V. 8. He claims that he is not a member of a professional crime ring and, therefore, zero points should have been awarded. He asserts that this variable applies only to the "criminal elite" or to a "dangerous criminal group". We disagree and find that the trial court properly interpreted and applied this variable. The instruction section for O.V. 8 clearly provides that four points should be scored "if the offense is part of a pattern of criminal activities over a period of time from which the offender has derived a substantial portion of his or her income". Thus, the application is broader than the construction urged by defendant.
The trial court awarded four points on the grounds that defendant had derived a substantial portion of his income from a check cashing and video rental scam by which he fraudulently obtained over $18,000, while his only other sources of income were general assistance, some part time jobs, and some support from his wife. The trial court based its assessment upon admissions of the defendant contained in the presentence report. At sentencing the trial court allowed both defendant and his attorney the opportunity to dispute, explain and clarify the facts underlying this point allocation. The facts upon which the judge based his decision were not challenged so much as were the conclusions he drew from those basically undisputed facts. Under such circumstances, we find no basis for this Court to interfere with the trial court's discretionary assessment. Thus, four points were properly awarded under O.V. 8.
Given our resolution of that variable, a further review of the point allocation under O.V. 17 would be academic inasmuch as 8 points were properly awarded, thus placing defendant well within Offense Severity Level III. We only note that that variable pertains to the facts of the specific conviction for which defendant is being sentenced. Thus, the element of aggregate value involves the total value of property "obtained, damaged or destroyed" through that offense. Consideration of the total amount of money involved in admitted but uncharged offenses or dismissed charges may provide a basis for deviation from the recommended sentence range but should not be considered in assessing points for the individual conviction.
The guidelines do not rise to the level of criminal statutes and we find no reason to apply a vagueness analysis to the individual variables.
Although defendant only challenged the individual point allocation of the guideline variables, we have reviewed his sentence under the standard set forth in People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983). We find no abuse of judicial discretion and our collective judicial conscience is not shocked by the 7- to 14-year sentences.
Affirmed.