Devon Glenn and an accomplice robbed a gas station and convenience store, which was staffed by two clerks. Glenn was carrying what appeared to be a sawed-off shotgun – in reality, an airsoft gun. Glenn hit one clerk in the head with the butt of the gun, demanding that the clerk open the cash register; he also hit the other clerk in the head with the gun, knocking him to the ground. After taking money from the cash register and the store safe, Glenn and his accomplice fled to a getaway car with a third man at the wheel, but not before Glenn again hit one of the clerks in the head with the gun. As the two ran across the street, they were seen by an off-duty deputy, who gave chase in his own car. When he caught up to them, one of the robbers approached the deputy’s car and stuck the air gun inside the passenger window, telling the deputy to stop following. In response, the deputy pulled a real firearm, and the robber fled, getting away with Glenn and the driver of the getaway car. The three were later arrested, and Glenn confessed to the robbery.
Glenn was charged with conspiracy to commit armed robbery, two counts of armed robbery, and two counts of felonious assault. He was notified that, if convicted, he would be sentenced as a third habitual offender. Glenn pleaded guilty to one count of armed robbery and one count of felonious assault, in exchange for the prosecutor’s agreement to dismiss the other charges and the habitual offender notice; Glenn also agreed to testify against his co-defendants.
The judge sentenced Glenn to 15 to 30 years for armed robbery, and one and a half to four years for felonious assault. As a result of the judge’s scoring decisions, the minimum guideline range for Glenn’s armed robbery sentence was 126-210 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 10 points for OV 12 (contemporaneous felonious acts). Over defense counsel’s objection, the judge also scored 50 points for OV 7 (MCL 777.37, aggravated physical abuse) for Glenn’s striking the two clerks with the air gun. If OV 7 had been scored at zero points, the guidelines would have recommended a minimum sentence in the range of 81 to 135 months. In explaining his decision, the judge said:
Clearly, they used a weapon. They struck, you know, several of the victims with the gun. Certainly, the victims – they could have certainly done this armed robbery, number one, without even using what appeared to be a sawed-off shotgun; and, moreover, striking at least one, or if not both of the clerks, with the weapon in the course of the thing. So I think it’s properly scored under OV-7.
Glenn appealed, limited to the trial judge’s scoring of OV 7, and in a published per curiam opinion, the Court of Appeals vacated Glenn’s sentences, saying that the trial judge should have scored “zero points” for OV 7.
“Fifty points can be assessed under OV 7 for ‘sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered,’” the appellate panel explained, citing MCL 777.37(1)(a). The prosecutor argued that Glenn, by hitting both clerks in the head with what appeared to be a shotgun, had engaged in “conduct designed to substantially increase the fear and anxiety” the victims suffered, the panel noted.
The panel rejected the prosecutor’s argument that Glenn’s actions were “designed to substantially increase the fear and anxiety” of the victims. While Glenn’s conduct was “certainly illegal and reprehensible,” it was not “savage or inhuman” compared to the conduct of others who perpetrate armed robberies or felonious assaults, the Court of Appeals said.
Moreover, Glenn’s conduct was not egregious enough to “substantially increase” the victims’ fear, the panel opined. “‘Substantial’ means ‘of ample or considerable amount, quantity, size, etc.’ … ‘Ample,’ in turn, is defined as ‘plentiful . . . liberal; copious….’ Therefore, defendant’s conduct would have substantially increased the victims’ fear only if the conduct was designed to cause copious or plentiful amounts of additional fear.”
And, although “conduct designed to substantially increase the fear and anxiety a victim suffered” has its own meaning independent of the other terms in the statute – “sadism, torture, or excessive brutality” – “it should nonetheless be construed to cover similarly egregious conduct,” the Court of Appeals said. “The conclusion that the Legislature intended OV 7 to apply only in egregious cases is also supported by the fact that assessing 50 points under OV 7, on its own, is enough to raise an offender’s OV level to III, considerably increasing a criminal’s minimum-sentence range.” Too, an overly broad reading of the term “conduct designed to substantially increase the fear and anxiety a victim suffered” would render the other terms in the list unnecessary, the panel reasoned.
Previous Court of Appeals decisions had upheld 50 points for OV 7 only in cases involving “specific acts of sadism, torture, or excessively brutal acts by the defendant,” the appellate panel said. Moreover, because using a dangerous weapon is an element of armed robbery and felonious assault, “the presence of a weapon and the use of a certain amount of force or intimidation must be discounted for purposes of OV 7. All such crimes against a person involve the infliction of a certain amount of fear and anxiety. OV 7 is designed to respond to particularly heinous instances in which the criminal acted to increase that fear by a substantial or considerable amount.”
Glenn’s “actions were undoubtedly designed to cause fear and anxiety in his victims,” and he “may have used more violence that would be strictly necessary to complete an armed robbery,” the Court of Appeals stated. “However, because OV 7, by its own terms, is to be scored at 50 points only for conduct ‘designed to substantially increase the fear and anxiety’ of a victim, we conclude that zero points should have been assessed for OV 7.”
The prosecutor appealed, and in an order dated June 8, 2012, the Supreme Court granted leave to appeal. The Court directed the parties to “address whether the trial court erroneously assessed 50 points for offense variable 7 (OV 7), MCL 777.37(1)(a), for committing assaultive acts beyond those necessary to commit the offense.”