Actual Versus Potential Danger or Threats Under OV 19 and OV 9

When it comes to interpretation of the statutory sentencing guidelines, the Michigan Supreme Court has often weighed in on the thornier questions. One of those questions percolating now is whether the offense variables were meant to capture actual rather than potential or hypothetical danger and threats. The Court recently resolved that question with respect to Offense Variable (OV) 19, but it dodged a similar question posed under Offense Variable 9.

Addressing OV 19, the Court held in People v Dixon, ___ Mich ___ (Docket No. 162221, 4/28/22), that not every possession of a cell phone in prison warrants the 25-point assessment. Rather, 25 points are reserved by statute for a situation where an “offender by his or her conduct threatened the security of a penal institution or court.” MCL 777.49(a). This language requires some form of “conduct.” People v Dixon, slip op at 4. Possession of a weapon in prison by an unauthorized individual would be sufficient conduct, but possession of a cell phone in prison depends on the context of that possession because “if a 25-point score is warranted under OV 19 for mere possession of any object that hypothetically could pose a threat with some creativity, the OV becomes boundless.” Id., slip op at 5, 6. The Court concluded that a “hypothetical threat isn’t enough,” and reversed the assessment where it was based on constructive possession with no evidence the defendant used or planned to use the phone and no evidence the phone was even operable. Id., slip op at 4.

From the opinion, the Dixon Court appears to require an actual or concrete threat to the security of a prison or court in order to assess 25 points under OV 19. Does the requirement of an actual threat apply to the scoring of OV 9, where an individual must be placed in “danger of physical injury or death” under MCL 777.39? Put another way, is actual harm required or may a court consider potential or hypothetical harm?
  The Supreme Court recently heard oral argument on the OV 9 question in People v Hunt, but it denied leave to appeal following the argument. People v Hunt, 508 Mich 946 (10/1/21) (granting mini oral argument), ___ Mich ___ (3/22/22) (denying leave to appeal after argument). That leaves in place an unpublished opinion of the Court of Appeals that is not binding on other courts but nevertheless contains an interesting debate. According to Judges Gadola and Fort Hood, “home invasions, when the occupants are in the home, are inherently dangerous.” People v Hunt, unpublished decision per curiam of the Court of Appeals (Docket No. 352385, 4/8/21), slip op at 3. According to Judge Anica Letica, in dissent, home invasions have the “potential to result in physical injury or death,” but the wording of OV 9 requires that the victims “were actually placed in danger of physical injury or death.” Id., slip op at 5. Judge Letica would have reversed the assessment of ten points under OV 9 where the unarmed defendant stole items from a kitchen and living area, but he never ventured into the bedroom area where the residents were sleeping.

Does the more recent decision in Dixon provide any guidance on this unresolved question under OV 9? To be sure, the statutory language differs between OV 19 and OV 9. The former requires conduct that threatens the security of a penal institution; the latter requires “danger” of physical injury or death. In addition, the Dixon Court appeared to concede that possession of a weapon (but not a cell phone) in a prison would be inherently dangerous conduct. The Court might similarly conclude that home invasions are inherently dangerous when the occupants are in the home. Yet there is language in Dixon addressing the “hypothetical” nature of some threats that could potentially spill over into OV 9.

In sum: Whether the danger of injury must be actual or merely potential under OV 9 remains an open question. For a discussion of the various factors that could make a home invasion more dangerous or less dangerous, see the Supreme Court argument in Hunt, (929) 162869 People of MI v Robert Hunt - YouTube.

by Anne Yantus
Copyright Anne Yantus 2022
Michigan Sentencing PLLC

Anne Yantus is a sentence consultant, working with court-appointed and retained attorneys to promote more favorable sentencing outcomes.  Anne credits her knowledge of Michigan sentencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office.  Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC.  Anne welcomes your Michigan felony sentencing questions and is happy to arrange a no-cost consultation for court-appointed attorneys using available Michigan Indigent Defense Commission funds.