Offense Variable 19 Has New Limits

From the July 2023 Criminal Defense Newsletter
Many defense attorneys have argued against an assessment of ten points under Offense Variable 19 (interference with the administration of justice) on the theory that to score for ordinary or trifling conduct would render the variable applicable in most if not all cases. That argument has nearly always failed, at least until now. The Michigan Supreme Court heard oral argument on an important OV 19 claim earlier this year and rendered a decision (an order, to be precise) on June 9, 2023. There are new limits to the scoring of this variable. 

In People v Deweerd, ___ Mich ____ (Docket No.162966, 6/9/23) (Endnote 1), the Court concluded that a denial of culpability, even when made in the form of denying the consumption of methamphetamine, denying awareness that meth was being used or produced in the apartment, and a statement by the defendant that he would have left had he known, is insufficient to assess points for the interference or attempted interference with the administration of justice. OV 19 requires more.

According to the majority, the defendant’s statements did not slow or prevent the investigation, or even attempt to do so. The denial of culpability “did no more to affect the investigation than if the defendant had not spoken at all.” The dissent, in contrast, agreed that a general denial of culpability was protected under OV 19, but this defendant did more by lying about specific underlying facts.

When does a denial of culpability verge into interference? The majority answered by pointing to prior cases affirming an assessment of points where the defendant actively redirected the investigation by providing a false name, by attempting to conceal evidence, by attempting to prevent a witness from testifying or offering evidence, and by attempting to evade arrest by hiding from the police. The test is whether there is opposing conduct that seeks to “hamper, hinder or obstruct the act or process of administering justice,” or attempts to “slow or prevent” a criminal investigation. People v Deweerd, supra, quoting language from People v Hershey, 303 Mich App 330, 343 (2013).

This new decision in Deweerd joins a very small number of cases restricting the scoring OV 19. There was the 2013 decision in People v Hershey, supra  (ten points not permitted for failure to pay child support or for a violation of probation), the 2016 decision in People v Sours, 315 Mich App 346 (ten points not permitted for failure to report on parole before committing the sentencing offense), and the 2022 decision in People v Dixon, 509 Mich 170 (25 points not permitted for constructive possession of a cell phone in prison). There was also the unusual 2012 decision in People v Portellos, 298 Mich App 431 (affirming trial court’s decision not to score OV 19 where defendant gave false statement to the police while in the hospital recovering from anesthesia), overruled on other grounds in People v Calloway, 500 Mich 180 (2017), although that decision was highly fact-specific. Deweerd expands the field significantly by holding that a denial of culpability – something that occurs in many cases – does not satisfy the variable.

Some decisions stand out by moving the law in a new direction. Deweerd fits that description. Prosecutors may not be happy, but defense attorneys can take a breath as they offer new ammunition in the fight to not score Offense Variable 19.

Anne Yantus
Michigan Sentencing PLLC
Copyright Anne Yantus 2023

Anne Yantus is a sentence consultant working with 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 consultation where appropriate. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.

Endnote

1. Congratulations to SADO Assistant Defender Michael Waldo, who represented Mr. Deweerd in the Supreme Court.