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A Better Partnership
May 30, 2017

MSC: Sentencing points for psychological harm to the victim’s family does not require proof that treatment was sought

When a homicide or homicide-related crime causes psychological injury to a victim’s family member such that the family member may require treatment, the defendant is hit with fifteen additional sentencing points. In the consolidated cases of People v Calloway, Nos. 153636 & 153751, the Michigan Supreme Court held that these sentencing points can be assessed regardless of whether the family member has actually sought psychological treatment—allowing courts to determine on their own whether a crime objectively requires psychological treatment.
In Calloway, the defendant was convicted of second-degree murder after serving as the getaway driver. At sentencing, the victim’s stepfather was interviewed and stated that both he and the victim’s mother were “having a very hard time dealing with the situation” and that the “incident has had a tremendous, traumatic effect” on them both.
MCL 777.35 requires that, for sentencing purposes, Offense Variable (OV) 5 is scored as fifteen points if the crime caused psychological injury that may require treatment to a member of the victim’s family. Considering the victim’s stepfather’s statements, the trial court scored OV 5 as fifteen points, and the defendant was sentenced to twenty to fifty years in prison.
The Court of Appeals reversed, concluding that OV 5 should have been scored at zero points because there was no evidence that any member of the victim’s family intended to actually seek professional treatment as a result of the incident.
But the Michigan Supreme Court reversed again, agreeing with the trial court’s initial interpretation. The court noted that, while MCL 777.35(1)(a) requires the serious psychological injury to be one “requiring professional treatment,” the statute does not require proof that the victim’s family member has received, sought, or intends to receive or seek professional treatment. Instead, the second subsection of MCL 777.35, expressly states that “the fact that treatment has not been sought is not conclusive,” noting that a score of fifteen points for OV 5 is appropriate if the injury sustained to the victim’s family “may require professional treatment.”
The court noted that while this threshold may seem low, OV 5 requires a “serious psychological injury,” that has “important or dangerous possible consequences.” So when scoring for OV 5, courts should consider both the injury’s severity and consequences, including:
  • How the injury manifested itself before sentencing;
  • Likely future manifestations of the injury; and
  • Whether professional treatment has been sought or received.
 The Court’s holding expressly overruled People v Portellos, 298 Mich App 431 (2012) to the extent that decision held or implied that OV 5 is limited to situations in which a victim’s family member has already sought or received treatment or has expressed an intention to do so. 

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