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No. 131994
| The People of the State of Michigan, |
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John T. Horiszny |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Saginaw - Heathscott, L.) |
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| Trumon Dontae Cannon, |
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Patrick K. Ehlmann |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Background
Three men entered a Saginaw Burger King. According to testimony in the case, two of the men went into the restroom, while the third man, Trumon Cannon, approached the counter. When the employee asked if she could help him, Cannon acted nervous and said he needed another minute. The other two men then emerged from the restroom with their faces hidden by bandanas; they proceeded to round up the employees and rob the restaurant. One employee escaped and hid in the freezer, calling 911 from a cell phone. Meanwhile, Cannon was pacing back and forth, looking out the front windows of the restaurant. Then, as Cannon and his companions ran from the restaurant, the police gave chase and apprehended the men. Cannon was charged with armed robbery, conspiracy to commit armed robbery, and felony-firearm; the prosecutor argued in part that Cannon helped plan the robbery and served as the lookout. A jury convicted Cannon of conspiracy to commit armed robbery, but acquitted him of the other charges. At sentencing, the prosecutor asked the trial judge to assess 15 points for Offense Variable (OV) 10, alleging that Cannon had engaged in predatory conduct. Predatory conduct is defined as “preoffense conduct directed at a victim for the primary purpose of victimization.” MCL 777.40(3)(a). The prosecutor argued that Cannon and his companions engaged in predatory conduct because they waited until there were no customers in the restaurant in order to victimize the employees. The trial court agreed, and assessed OV 10 at 15 points; as a result, the guidelines range for Cannon’s minimum sentence was 126 to 210 months in prison. If no points had been scored for OV 10, the range would have been only 108 to 180 months. The court imposed a sentence at the top of the calculated range, sentencing Cannon to a term of 210 to 500 months. The Court of Appeals affirmed Cannon’s conviction and sentence in an unpublished per curiam opinion. Cannon appeals, arguing that he and his companions intended only to rob the store and so did not engage in “predatory conduct” within the statute’s meaning.
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