PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Anthony WELLMAN, Defendant-Appellant., 910 N.W.2d 304

Per Curiam. Early in the afternoon on January 23, 2015, the victim and defendant, longtime friends, took a bus together to a walk-in clinic. They returned around 4:00 p.m. The victim went back to her apartment alone. Defendant texted the victim that evening indicating that she should come over around 8:00 p.m. for a drink at his apartment. She went and had one spiced rum and coke. From there she went home to meet another friend. The victim and her friend drove around a park and went to the store.

As that friend dropped the victim off at her apartment, the victim witnessed defendant stumbling and staggering back from the Kon Tiki Bar. After the victim's friend dropped her off, the victim started walking to her girlfriend's house, and she passed by defendant's apartment. Remembering she had left a basket of clean laundry at defendant's apartment, she decided to stop by and retrieve it. While there, the assault occurred.

Defendant appeals by right the sentence imposed by the trial court after his jury trial conviction of assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1). Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve a prison term of 5 to 25 years. We affirm. A trial court's factual determinations under the sentencing guidelines must be supported by a preponderance of the evidence and are reviewed for clear error. People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013).

"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." Id . at 438, 835 N.W.2d 340. MCL 769.12. "[W]hen determining how offense variables should be scored, this Court reads the sentencing guideline statutes as a whole." People v. Bonilla-Machado , 489 Mich. 412, 422, 803 N.W.2d 217 (2011). "The cardinal rule of statutory construction is to identify and to give effect to the intent of the Legislature." Turner v. Auto Club Ins. Ass'n , 448 Mich. 22, 27, 528 N.W.2d 681 (1995). See also Mull v. Equitable Life Assurance Society of the United States , 444 Mich. 508, 514, n. 7, 510 N.W.2d 184 (1994).

We found first on the plain language of the statute. Lamphere Schools v. Lamphere Federation of Teachers , 400 Mich. 104, 110, 252 N.W.2d 818 (1977). Individual words and phrases are not only read for bare meaning but are also read in the context of the entire legislative scheme. Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). "When, as here, 'the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted.' " Malpass v.

Dep't of Treasury , 494 Mich. 237, 249, 833 N.W.2d 272 (2013) quoting Sun Valley Foods Co. v. Ward , 460 Mich. 230, 236, 596 N.W.2d 119 (1999). Defendant does not dispute the conviction but alleges there to be an error in the scoring of Offense Variable 4 (OV) 4, resulting in an incorrect sentence. Defendant argues that OV 4 was scored on the basis of inaccurate information and, thus, that OV 4 was scored in violation of his state and federal due process rights. OV 4 should be scored at 10 points when "[s]erious psychological injury requiring professional treatment occurred to the victim[.]" MCL 777.34(1)(a).

"In making this determination, the fact that treatment has not been sought is not conclusive[,]" MCL 777.34(2). Defendant argues that the record does not support a score of 10 points because it cannot be proved that the victim sustained a serious psychological injury from his attack, let alone an injury requiring professional treatment. Further, defendant emphasizes that the victim did not supply a victim impact statement or explicitly testify that defendant caused her psychological injuries.

An OV 4 score of 10 points resulted in a total OV score of 50 points, the lowest number for OV Level V (50-74 points) for a Class D offense. MCL 777.21(1)(a). While the Crime Victim's Rights Act, MCL 780.751 et seq., affords a victim the right to submit an impact statement for the presentence investigation report and at sentencing, such a submission is not necessary in order to establish evidence of psychological harm.

The term "right" is defined, in relevant part, as "the power or privilege to which one is justly entitled" or "something to which one has a just claim." Merriam Webster 's Collegiate Dictionary (11th ed.) Although the victim did not provide a statement, she did testify at trial, relaying how the assault occurred.

She stated that after walking into defendant's basement to pick up a load of clean laundry she had finished there because her apartment did not have a washer or dryer, defendant shut and locked the door behind her, and pinned her in a bear hug, picked her up, and lifted her up the stairs into his apartment. There, he pinned her against the refrigerator and pulled off her t-shirt, repeatedly punching her in the face with his fists. She testified that he then laid atop her and stated, "I will drag you bloody and beaten to my bed and then rape you," threatening to kill her if she refused.

When he momentarily lost his footing, she escaped and called 911. She testified that she had been "scared for [her] life" and that the beating had been "traumatic." The police described the victim as "hysterical" and noted that she had multiple facial lacerations and was dripping in blood upon their arrival. "When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a [presentence investigation report]." People v. Thompson , 314 Mich.App. 703, 708-709; 887 N.W.2d 650 (2016).

A sentencing court may also consider "plea admissions[ ] and testimony presented at a preliminary examination." People v. McChester , 310 Mich.App. 354, 358, 873 N.W.2d 646 (2015). Based on an analysis of the statute's clear meaning, the scoring of OV 4 was not clearly erroneous. Whether the victim had undergone psychological treatment is not determinative. MCL 777.34(2).

The trial court explained that 10 points was the appropriate score "[n]ot simply because these events that occurred to an ordinary person would give rise [to psychological injury which would require professional treatment], but in her particular case, they, in fact, did give rise [to psychological injury]," noting the victim's reluctance and difficulty in giving testimony and appearing on the witness stand. Furthermore, we note that the preliminary examination was closed to the public by the trial court at the victim's request.

The trial court explained that cases involving criminal sexual conduct are "very sensitive" and can be "emotionally traumatic for the victims involved," and the court emphasized that this case involved a "fairly significant alleged violent act with blood...." Also of note, the victim was allowed to bring her mother as a support person to the preliminary examination, and during cross-examination at trial, the victim stated that she was "going to need a break pretty quick" as she was "pretty shook up." In addition, the victim was currently on disability for her anxiety and post-traumatic stress disorder.

This Court has held that a victim's "statements about feeling angry, hurt, violated, and frightened" support a score of 10 points for OV 4. People v. Williams , 298 Mich.App. 121, 124, 825 N.W.2d 671 (2012). This approach also comports with People v. Calloway , 500 Mich. 180, 895 N.W.2d 165 (2017), which reversed this Court's opinion in People v. Calloway , the unpublished per curiam opinion of the Court of Appeals, issued March 22, 2016, 2016 WL 1125760 (Docket Nos. 323776 and 325524).

Therefore, this Court affirms defendant's sentence by extending Calloway , which involved OV 5, in deference to the plain meaning and the exact verbiage of both OV 4 and OV 5. The statutory language of OV 5, concurring serious psychological injury to victim's family requiring treatment, MCL 777.35, is as follows:

(1) Offense variable 5 is psychological injury to a member of a victim's family. Score offense variable 5 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points: (

a) Serious psychological injury requiring professional treatment occurred to a victim's family......................... 15 points (

b) No serious psychological injury requiring professional treatment occurred to a victim's family............... 0 points

(2) Score 15 points if the serious psychological injury to the victim's family may require professional treatment. In making this determination, the fact that treatment has not been sought is not conclusive.

Considering the trial court's scoring of OV 5 at 15 points, this Court's Calloway panel noted that although the victim's stepfather reported that the "incident has had a tremendous, traumatic effect on him and his family" that the incident "will change them for the rest of their lives," "there is no evidence indicating that any member of the victim's family intended to receive professional treatment in relation to the incident or required professional treatment because of the incident." Calloway , 500 Mich. at 183, 895 N.W.2d 165 (quotation marks and citation omitted).

In its review of this Court's opinion in Calloway, the Michigan Supreme Court examined the language of MCL 777.35. The Court reasoned that "[a]t first blush, the second subsection of MCL 777.35 appears to contradict the first concerning whether professional treatment is required for points to be assessed. However, the more specific second subsection is clearly intended as a further explication of the circumstances justifying a 15-point score." Calloway , 500 Mich. at 185, 895 N.W.2d 165.

The Court noted that "serious" means " 'having important or dangerous possible consequence[s].' " Id . at 186 895 N.W.2d 165, quoting Merriam-Webster 's Collegiate Dictionary (11th ed.). In contrast to what the Court of Appeals had held, the Supreme Court ultimately interpreted MCL 777.35 to mean that a family member need not be, at present, seeking or receiving professional treatment or intending to do so, Calloway , 500 Mich. at 186, 895 N.W.2d 165.

In deciding Calloway , the Supreme Court noted that "the Court of Appeals did not discuss any details regarding the victim's grandmother's 'emotional response to the [victim's] death,' or consider the letter she submitted 'that spoke about her disbelief, grief, anger, and heartbreak at the loss of the [victim].' " Calloway at 187-188, 895 N.W.2d 165. Given the similarity between the language of MCL 777.34 and MCL 777.35, we extend the Supreme Court's analysis of OV 5 in Calloway to OV 4.

There is no reason to assume that OV 4 and OV 5 should be interpreted differently when they are two branches stemming from the same tree, for "why[ should we] abandon our usual presumption that 'identical words used in different parts of the same statute' carry 'the same meaning' " ? Henson v. Santander Consumer USA Inc. , 582 U.S. ----, ----, 137 S.Ct. 1718, ----, 198 L.Ed.2d 177 (2017), quoting IBP , Inc. v. Alvarez , 546 U.S. 21, 34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). When the Legislature uses identical words or phrases, this Court interprets them as synonymous.

The Supreme Court, in applying the plain language of MCL 777.35 to the facts of Calloway , determined that the score of 15 points for OV 5 was appropriate given the statements of the victim's family in the presentence investigation report, which demonstrated the serious psychological issues they were suffering that could require future professional treatment. The Court referred to one particular statement made by the victim's stepfather.

Addressing the trial court at the sentencing, the stepfather stated that " 'since [the day of the murder], [he had] thought about this every single day" and how he would "probably think about it for the rest of [his] life.' " This statement in Calloway is no great departure from the statements the victim in this case made at trial.

The victim here has explained that the assault was traumatic for her and that one of the lasting effects on her was how her "everyday life was harder now." Moreover, her body language was evidence of this difficulty; while testifying she was "fidgeting" and nervous, not wanting to have to be in the same room with defendant. She also testified about her continuing memory loss. Furthermore, all involved in the trial, save for the jury, acknowledged that the victim had been experiencing some digestive issues since the incident.

She was experiencing them on the day she testified-while trying to get to the courthouse to give her testimony, she had to stop at several rest stops on her way to court. Therefore, we adhere to the Legislature's intent and hold that the victim's statements support a score of 10 points for OV 4 and the trial court did not clearly err in its decision to assess 10 points for OV 4. Affirmed. Markey, P.J., and Ronayne Krause and Boonstra, JJ., concurred. MCL 780.763(1)(

c) and (f). At defendant's preliminary examination, the trial court stated that the prosecutor had been in counseling at Pathways. This clearly is a transcription error, or the judge misspoke, because it is obvious from the context that the court meant the victim.