|
No. 128161
| The People of the State of Michigan, |
|
David G. Gorcyca |
Plaintiff-Appellee, |
|
|
| v |
(Appeal from Ct of Appeals) |
|
|
(Wayne - Ryan, D.) |
|
|
| Raymond A. McCuller, |
|
Desiree M. Ferguson |
Defendant-Appellant. |
|
|
| __________________________________________ |
|
|
Click to view briefs in Adobe format:
**Case added per remand Order from U.S. Supreme Court. ***
(Supplemental Briefs on remand due by April 4, 2007. )
Plaintiff-Appellee's Supplemental Brief on Appeal>>
Defendant-Appellant's Supplemental Brief on Appeal>>
*******************************************************************
Plaintiff-Appellee's Response to Application for Leave to Appeal>>
Defendant-Appellant's Application for Leave to Appeal>>
Defendant-Appellant's Supplemental Brief>>
Attorney General and Prosecuting Attorneys Association of Michigan's Amici Curiae Brief>>
Attorney General and Prosecuting Attorneys Association of Michigan's Supplemental Amici Brief>>
Criminal Defense Attorneys of Michigan's Amicus Curiae Brief>>
Wayne County Prosecutor's Office's Amicus Curiae Brief>>
Background
Larry Smith testified that Raymond McCuller assaulted him with an object that looked like a bat or a pipe. Smith suffered a broken nose, broken cheek bone, broken eye socket, fractured skull, and collapsed right inner ear wall; he also lost the teeth on the right side of his lower jawbone. The jury found McCuller guilty of assault with intent to do great bodily harm. At sentencing, the trial court determined McCuller’s prior record variable score (PRV) and his offense variable (OV) score, in order to find the range within which McCuller’s minimum sentence should fall. The judge assessed points for Offense Variable 1, because McCuller touched the victim with a type of weapon; Offense Variable 2, because McCuller possessed or used a potentially lethal weapon; and Offense Variable 3, because McCuller inflicted life-threatening or permanently incapacitating injury on the victim. After adding up the PRV and OV points, the judge consulted the sentencing guidelines, which indicated that a proper minimum sentence for McCuller, as a habitual offender, was in the range of five to 28 months. The judge ordered McCuller to serve a prison term of 24 months to 15 years. McCuller claims that the judge violated Blakely by increasing the sanction for his crime on the basis of facts that McCuller did not admit and that were not submitted to the jury and proven beyond a reasonable doubt. He further argues that, if the judge had not considered the conduct described above when assessing McCuller’s offense variables, the sentencing guidelines range would have indicated a proper minimum sentence of only zero to 11 months. A range of zero to 11 months calls for the imposition of an “intermediate sanction,” which means that the sentencing judge cannot sentence such a defendant to a prison term without departing from the guidelines. Accordingly, his prison sentence is illegal, McCuller argues. The Court of Appeals affirmed McCuller’s conviction and sentence in an unpublished opinion. The Michigan Supreme Court heard oral argument on McCuller’s application for leave to appeal on March 8, 2006. On June 13, 2006, the court issued a memorandum opinion that affirmed McCuller’s conviction and sentence; Justices Cavanagh and Kelly dissented. McCuller appealed to the United States Supreme Court and, on February 20, 2007, the United States Supreme Court entered an order that vacated the Michigan Supreme Court’s June 13, 2006 opinion, and remanded this case to the Michigan Supreme Court for further consideration in light of Cunningham v California, 549 US ___; 127 S Ct 856; 166 L Ed 2d 856 (2007).
Top of Page
|
