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141312 - People v Huston (Cecil)

The People of the State of Michigan,
 
Aaron J. Mead
 
Plaintiff-Appellant,
 
v
(Appeal from Ct of Appeals)
 
 
(Berrien – Wiley, D.)
 
Cecil D. Huston,
 
Ronald D. Ambrose
 
Defendant-Appellee.
 

Summary

​Over the course of a few weeks, the 15-year-old defendant, Cecil Huston, and 16-year-old Keyon Brown went on a crime spree that consisted primarily of burglaries, but ended with the armed robbery of Jackie Flanagan at a mall. Flanagan, who was alone, was getting out of her SUV in the mall parking lot when Huston and Brown accosted her, pointing guns at her head and demanding her purse, wallet, and car keys. Flanagan turned over her cell phone and car keys, but when she had some trouble getting the purse off her shoulder, Brown knocked her to the ground and took the purse. Huston and Brown then fled in Flanagan’s car. Ultimately, Huston and Brown were arrested and Huston confessed. He was charged with armed robbery and carjacking; in six other cases, he was charged with breaking and entering various businesses.

The prosecutor offered to let Huston plead guilty to the armed robbery count in exchange for dismissal of the carjacking count, all of the burglary charges, and a couple of other juvenile court cases. In addition, Huston would be required to testify against Brown. Huston accepted the offer and offered a guilty plea. As to sentencing, Huston argued that Offense Variable 10, MCL 777.40 (exploitation of vulnerable victim), was incorrectly assessed at 15 points for predatory conduct. In People v Cannon, 481 Mich 152 (2008), the Supreme Court held that, in order to assess 15 points for predatory conduct, the sentencing judge must find that the offender’s pre-offense conduct was directed at one or more specific victims who suffered from a “readily apparent susceptibility to injury, physical restraint, persuasion, or temptation.” The statute is aimed at pre-offense conduct where victimization is the primary purpose, the Supreme Court said. The legislature did not intend that “predatory conduct” include run-of-the-mill planning to commit a crime or escape without detection; rather, the Cannon Court said, the focus of OV 10 is on the exploitation of “vulnerable victims.”

In Huston’s case, the trial judge determined that lying in wait to assault the victim constituted predatory conduct, and that OV 10 was properly scored at 15 points. Huston’s minimum guidelines range was calculated by the court at 108 to 180 months. The court sentenced Huston at the top of the guidelines, imposing a 15- to 50-year sentence.

Huston filed an application for leave to appeal in the Court of Appeals, arguing that OV 10 had been improperly scored. The Court of Appeals denied the application in a standard order, citing lack of merit in the grounds presented. The Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted. In a published per curiam opinion, the Court of Appeals held that OV 10 had been misscored and that Huston was entitled to resentencing. “On the basis of the characteristics of vulnerability listed in Cannon, the focus being on characteristics of the victim, rather than the victim’s circumstances, and on the basis of the record before this Court, we conclude that OV 10 was improperly scored at 15 points. It should have been scored at zero points,” the appellate panel stated. The prosecutor appeals.