Donald Hardy and an accomplice accosted a man at gunpoint in a parking lot, demanding everything he had. Hardy pointed a shotgun at the victim and pumped it, then, with his accomplice, began going through the victim’s pockets. A struggle ensued, with the victim grabbing the barrel of the shotgun to point it away from him. As the victim and Hardy struggled for control of the shotgun, the other perpetrator got into the victim’s car; Hardy joined him, and the two fled. The victim suffered a cut on his hand and a bump on the head.
Police officers arrested Hardy and his accomplice; Hardy confessed and later pleaded guilty to the carjacking. The trial court sentenced Hardy, then 17, as an adult, to a prison term of 12 to 50 years. As a result of the judge’s scoring decisions, the minimum guideline range for Hardy’s carjacking sentence was 108-180 months. Statutory sentencing guidelines include offense variables, which represent different aspects of a crime; the statute assigns a range of points for each OV. In this case, the judge scored 50 points for OV 7 (MCL 777.37, aggravated physical abuse) for Hardy’s racking the shotgun as he pointed it at the victim. If OV 7 had been scored at zero points, the guidelines would have recommended a minimum sentence in the range of 42 to 70 months. (About a week before his guilty plea, while he was on bond for the carjacking, Hardy committed another robbery, for which he was sentenced to consecutive prison terms of 6 years, 9 months to 50 years for armed robbery and two years for felony firearm. Both of these sentences will run consecutively with his carjacking sentence.)
After the trial court denied Hardy’s motion for resentencing, he appealed, but the Court of Appeals denied leave to appeal for lack of merit in the grounds presented, though one judge would have granted leave on the ground that OV 7 was misscored.
Hardy appealed to the Supreme Court, arguing that the trial court erred by assessing 50 points for OV 7. MCL 777.37(1)(a) provides for a score of 50 points for OV 7 when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” Hardy asserted that he racked the shotgun, once only, to proceed with the robbery, not to increase the victim’s fear. Moreover, OV 7 is properly scored at 50 points only in aggravated cases that require for harsh sanctions, Hardy contended. During the robbery, Hardy did not torture the victim, beat or brutalize him, or subject him to prolonged pain or humiliation to produce suffering or for his own gratification, Hardy maintained. Hardy also argued that his trial lawyer rendered ineffective assistance of counsel by failing to object to the judge’s scoring of OV 7.
The prosecution argued that Hardy’s racking the shotgun was designed to put the victim in immediate fear for his life, so Hardy did “substantially increase the fear and anxiety” the victim suffered for the purposes of scoring OV 7 at 50 points.
At sentencing, the prosecutor cited People v Hornsby, 251 Mich App 462 (2002). In that case, the Court of Appeals upheld a trial court’s scoring of OV 7 at 50 points, based largely on the trial court’s finding that the defendant, by cocking a shotgun, had substantially increased the victims’ fear and anxiety by putting them in immediate fear of their lives. Hardy argued on appeal that Hornsby should not apply to his case, because in Hornsby, the defendant not only racked his gun, but repeatedly threatened the victims’ lives – conduct designed to substantially increase the victims’ fear and anxiety.
In an order dated June 8, 2012, the Supreme Court granted leave to appeal. The Court directed, “The parties shall address whether the trial court erroneously assessed 50 points for offense variable 7 (OV 7), MCL 777.37(1)(a), because the defendant racked a shotgun during the carjacking, and whether trial counsel was ineffective for waiving this issue.” The Court also ordered the circuit court to determine whether Hardy is indigent “and, if so, to appoint counsel to represent the defendant in this Court.”