No. 132876

Click to view briefs in Adobe format:

Plaintiff-Appellee's Brief on Appeal>>

Defendant-Appellant's Brief on Appeal>>

Prosecuting Attorneys Association of Michigan's Amicus Curiae Brief>>

Background
At issue in this case is the sentence that Matthew McGraw received for a January 5, 2003 break-in of the Marion Springs General Store. According to the presentence report, police responded to an audible alarm at the General Store on that date. A witness saw a large car backed up to the door with the trunk open and three unknown males near the vehicle. En route to the store, police officers observed a vehicle matching the description and pulled it over. When the police exited their vehicle, the car sped away and the officers pursued. The car crashed into a chain-link fence and the three occupants fled on foot. The officers apprehended McGraw in the area and recovered stolen merchandise from the trunk. The store owner reported a total loss of $4,918, including $100 in unrecovered cash.

McGraw pled guilty to three counts of breaking and entering a building with intent to commit larceny (MCL 750.110), in exchange for the prosecution dismissing other pending charges and the promise of a sentence within the sentencing guidelines. At the plea hearing, he admitted that on three separate occasions he and two others went to a store, broke a window intending to steal property, took property from the store, loaded it into a car, and drove away.

In sentencing criminal defendants, trial courts use statutory “offense variables,” which assign a number of points based on various factors in the crime; the number of points is used to determine the sentencing guidelines that the trial court considers in setting the minimum length of the defendant’s sentence. OV 9, MCL 777.39, is scored based upon the number of victims of a crime. At the relevant time, OV 9 was to be scored at 10 points if there were two to nine crime victims. MCL 777.39 instructs the court to “[c]ount each person who was placed in danger of injury or loss of life as a victim.” MCL 777.39(2)(a).

In McGraw’s case, OV 9 was scored at 10 points; his minimum sentence was calculated to be between 29 and 114 months. McGraw’s trial counsel stated, at sentencing, that the sentencing guidelines used to arrive at these numbers appeared to be correct. For the January 5, 2003 break-in, McGraw was sentenced, as a fourth habitual offender, to serve nine to 30 years; he received concurrent terms of six to 30 years for his other two convictions. In the Court of Appeals, McGraw challenged the scoring of OV 9 and argued that his trial counsel provided ineffective assistance of counsel in failing to object to the OV 9 scoring. McGraw contended that, at most, the store owner was the sole victim of the January 5, 2003 break-in, although even the store owner was not placed in danger of physical injury or loss of life, McGraw maintained. OV 9 should have been scored at zero points, McGraw argued, which would have resulted in a minimum sentence within the sentencing guidelines of no more than 76 months. The prosecutor countered that both the store owner and the police officer who pursued McGraw were placed in danger of injury as a result of McGraw’s crime, so OV 9 was properly scored at 10 points. The Court of Appeals affirmed defendant’s sentence in an unpublished per curiam opinion. McGraw appeals.

Top of Page

Get the latest version of Internet Explorer. Some of the files on this site are PDF files. To view PDF files, you need Acrobat Reader. Download your free copy here.

Technical questions about this site should be sent to webinfo@courts.mi.gov.
Questions about the content on this site should be sent to msc-info@courts.mi.gov.