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141795 - People v Ivey (Franklin)

People of the State of Michigan,
 
Jon P. Wojtala
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Wayne – Kenny, T.)
 
Franklin Edward Ivey,
 
Michael B. Skinner
 
Defendant-Appellant.
 

​Plaintiff-Appellee's Response to Application for Leave to Appeal>>

Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Supplemental Brief>>

Summary

​On August 17, 2008, Franklin Ivey shot and killed Kerry Booker in Detroit. Ivey was charged with first-degree murder, felon in possession of a firearm, and felony-firearm; he was tried before a Wayne County jury in late February and early March 2009. Ivey admitted that he killed Booker, but claimed that he did so in self-defense. The jury acquitted Ivey of first-degree murder and felony-firearm, but found him guilty of being a felon in possession of a firearm.

At sentencing, over defense counsel’s objection, the trial court assessed 100 points under Offense Variable 3, MCL 777.33 (physical injury to a victim). Under MCL 777.33(1)(a), 100 points should be scored under OV 3 if “[a] victim was killed.” Under MCL 777.33(2)(b), 100 points should be scored “if death results from the commission of a crime and homicide is not the sentencing offense.” Ivey argued that, because the jury acquitted him of the murder charge, the jury accepted his claim of self-defense, and therefore he should not be sentenced as if he shot a “victim” or caused a “victim’s” death. The prosecutor argued that, even if the verdict shows that the jury concluded that Ivey acted in self-defense, the trial court was obligated to score 100 points for OV 3. The trial court agreed, and sentenced Ivey as a second habitual offender to three years of probation, with the first year in jail and credit for 203 days already spent in jail. The trial court allowed Ivey to post a bond that has allowed him to remain out of jail while he pursues this appeal.

Ivey appealed as of right. The Court of Appeals affirmed in a split unpublished per curiam opinion. The majority explained that, for purposes of OV 3, a victim includes “any person harmed by the criminal actions of the charged party.” Ivey was convicted of the felon-in-possession charge, and the decedent died as a result of Ivey’s possession of a firearm; accordingly, there was sufficient evidence that the decedent was a “victim,” the majority said. Moreover, that the prosecutor had established that the decedent’s death “resulted from” the commission of a crime, which is sufficient to support a 100 point score under MCL 777.33(2)(b). “There is no question here that defendant factually caused the decedent’s death, regardless of whether the specific act of killing was in self-defense.” The dissenting judge did not agree that a “victim” was killed or that the death resulted from the commission of “a crime.” The jury found that Ivey acted in self-defense, so his firearm possession was justified at the time of the shooting, the dissenting judge reasoned. Ivey’s possession of the firearm only became wrongful when Ivey failed to rid himself of the firearm after the shooting. Because Ivey’s possession of the firearm was justified, the dissenting judge would have held that the decedent was not a victim for purposes of OV 3. Ivey appeals.