People of Michigan v. Donald Michael Hardy

Summary

The Michigan Supreme Court held that 50 points under offense variable 7 (OV 7), MCL 777.37(1)(a), are properly assessed for conduct intended to make a victim's fear or anxiety greater by a considerable amount, even if the conduct is not as egregious as sadism, torture, or excessive brutality. Reading the second 'or' in MCL 777.37(1)(a) as rendering 'conduct designed to substantially increase the fear and anxiety a victim suffered during the offense' an independent clause, the Court also held that absent an express prohibition courts may consider conduct inherent in a crime when scoring offense variables, and it announced a two-step inquiry: whether the defendant engaged in conduct beyond the minimum required to commit the offense and, if so, whether the conduct was intended to increase the victim's fear or anxiety by a considerable amount, measured against a baseline derived from the severity, elements, and possible variations of the offense. Applying that framework, the Court affirmed the circuit court's 50-point OV 7 score in Hardy (racking a shotgun during a carjacking) and rejected his ineffective-assistance claim because any objection would have been meritless, while reversing the Court of Appeals in Glenn (striking store employees with the butt of a weapon during an armed robbery) and remanding for reinstatement of the original sentence. The Court also clarified that guidelines factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence, while application of the facts to the statutory scoring conditions is reviewed de novo. Justice McCormack concurred in full but urged the Legislature to clarify OV 7's subjective 'conduct designed' language; Justice Cavanagh concurred in the standard of review but dissented from the interpretation, contending the category must be of the same class as sadism, torture, and excessive brutality and that the trial court clearly erred in Hardy.