                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     August 3, 2017
               Plaintiff-Appellee,                                   9:00 a.m.

v                                                                    No. 332429
                                                                     Delta Circuit Court
MICHAEL ANTHONY WELLMAN,                                             LC No. 15-009076-FH

               Defendant-Appellant.


Before: MARKEY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

PER CURIAM.

        Early in the afternoon on January 23, 2015, 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 p.m. for a drink at his apartment. She went and had one spiced rum and coke. From
there she went to another friend’s home. 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, and she started walking to her girlfriend’s house, she passed by
defendant’s apartment. Remembering she had left a basket of clean laundry there, 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, MCL 750.520g(1).
Defendant was sentenced as a fourth habitual offender, MCL 769.12, to serve a prison term of 5
to 25 years. We affirm.

        Regarding sentencing, this Court reviews the trial court’s determination for clear error.
Sentencing guidelines must be supported by a preponderance of the evidence. People v Hardy,
494 Mich 430, 438; 835 NW2d 340 (2013). “Under the sentencing guidelines, the circuit court’s
factual determinations are reviewed for clear error . . . ” Id. at 438 “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. MCL 769.12. “In 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 NW2d 217 (2011).



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        “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 NW2d 681 Mich (1995).
Mull v Equitable Life Assurance Society of the United States, 444 Mich 508, 514, n7; 510 NW2d
184 (1994). The goal in doing so is to give effect to the Legislature’s intent, focusing first on the
plain language of the statute. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich
104, 110; 252 NW2d 818 (1977). Individual words and phrases are not read for bare meaning
but instead, read in the context of the entire legislative scheme. Bailey v United States, 516 US
137 (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 Department of Treasury, 494
Mich 237, 249; 833 NW 2d 272 (2013) citing Sun Valley Foods Co v Ward, 460 Mich 120, 123;
596 NW 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 based upon inaccurate information and thus, in violation of his state and federal due
process rights. OV 4 should be scored 10 points where “[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 been sought is not conclusive,” MCL 777.34(2).
Defendant argues that the record does not support a score of 10 points because the victim cannot
be proven to have sustained a serious psychological injury, let alone one requiring professional
treatment, from his attack. Further, defendant emphasized the fact that the victim did not supply
a victim impact statement or explicitly testify that defendant caused her psychological injuries.
The ruling placed the total offense variables (OVs) scoring at 50 points, the lowest number for
Level V (50-74 points).

        While the Crime Victim’s Rights Act, MCL 780.751 et seq., affords a victim the right to
submit impact statements into the presentence investigation report and at sentencing, such a
submission is not necessary in order to establish evidence of psychological harm. A right is
defined in relevant part as “a power or privilege to which one is justly entitled” or “something to
which one has a just claim.” Merriam Webster’s Collegiate Dictionary, 11th Edition. Although
the victim did not provide a statement, she did testify at trial, relaying how the assault occurred.
She stated that, upon walking into the apartment to pick up a load of clean laundry she had
finished in defendant’s basement 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
ripped 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 how the beating had been
“traumatic.” The police witnessed the victim “hysterical”, with multiple facial lacerations and
dripping in blood upon arrival.

       “A sentencing court may consider all record evidence before it when calculating the
guidelines, including, but not limited to, the contents of the presentence investigation report,
admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary


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examination or trial,” as stated by People v Ratklov (after remand), 201 Mich App 123, 125; 505
NW2d 886 (1993).

        Based on analysis of the statute’s clear meaning, the scoring of OV 4 is not an abuse of
discretion by the trial court. Whether or not the victim has undergone psychological treatment is
irrelevant.1 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, the preliminary examination
was closed to public by the trial court at the victim’s request, with an explanation of how cases
involving sexual crimes were “very sensitive” and could be “emotionally traumatic for the
victims involved,” especially because this one involved a “fairly significant violent act with
blood.” Also, the victim was allowed to bring her mother as a support person, to the preliminary
examination. During cross-examination, the victim stated that she was “going to need a break
pretty quick” as she was “pretty shook up.” Furthermore, she was currently on disability for her
anxiety and posttraumatic stress disorder (PTSD).

        This Court has held that a victim’s “statements about feeling angry, hurt, violated, and
frightened” supports a score of 10 points for OV 4. People v Williams, 298 Mich App 121, 124;
825 NW2d 671 (2012). This approach also comports with People v Calloway, _ Mich _;_
NW2d_ (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. Therefore, this Court affirms
the sentence by extending Calloway, which involved a sentence of OV 5, in deference to the
statute’s plain meaning and exact verbiage, both included in the same legislation. At issue in
Calloway was the scoring of OV 5 (serious psychological injury to victim’s family requiring
treatment), MCL 777.35, which provides 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




1
  At trial the trial court stated that the prosecutor has been counseling with Pathways which
clearly is a transcription error or the judge misspoke because it is obvious from context that the
court meant the victim.


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       (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 “the ‘incident has had a tremendous
traumatic effect on him and his family’” “that ‘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, unpub at 7.

        The Michigan Supreme Court looked to 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, __ Mich at __; slip op at 5. The Court
defined “serious” to mean “ ‘having important or dangerous possible consequences.’ ” Id. at 6,
quoting Merriam-Webster’s Collegiate Dictionary (11th ed). The Supreme Court interpreted the
statute to mean that the family member need not be, at present, seeking or receiving professional
treatment nor carrying the intent to do so, in contrast to what the Court of Appeals had held. In
deciding this, they overruled People v Portellos, 298 Mich App 431, 449; 827 NW2d 725
(2012), noting 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, __ Mich at __; slip op at 8.

        Given the similarity between the language of MCL 777.34 and MCL 777.35, we extend
the Supreme Court’s analysis in Calloway to OV 4. There is no reason to assume that OV 4 and
OV 5 should be interpreted contrastingly 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 statute’ carry ‘the same meaning’ ” Henson v Santander Consumer USA Inc., ___ US
___, ___; 137 S Ct 1718, ___ L Ed 2d ___ (2017), quoting IBP, Inc v Alvarez, 546 US 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 the
case, determined in Callaway that the score of 15 points for OV 5 was appropriate upon
consideration of the statements the victim’s family gave in the presentence investigation report
which demonstrated the serious psychological issues they were suffering that may require future
professional treatment in the future. One of the statements referenced in making this
determination, for example, was by the victim’s stepfather. Addressing the trial court at the
sentencing, the stepfather stated how “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 is no great departure from the statements the victim made in this case 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 “everyday life was harder for her now.” Moreover, her body

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language was evidence of this difficulty; while testifying she was “fidgeting” and nervous, not
wanting to have to be in the same room as defendant. She also testified about her “continuing
memory loss.” Furthermore, it was acknowledged by all involved in the trial, save for the jury,
that she was suffering digestive issues since the incident and was experiencing them that day in
trying to get to the courthouse to give her testimony, as she had to stop at several rest stops just
to make it there. Therefore, the victim’s statements support a score of 10 points for OV 4 in
adherence to the legislative intent and thus, the trial court did not abuse its discretion in
determining such.

       Affirmed.

                                                             /s/ Jane E. Markey
                                                             /s/ Amy Ronayne Krause
                                                             /s/ Mark T. Boonstra




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