People v. Rodriguez , 212 Mich. App. 351 ( 1995 )

212 Mich. App. 351 (1995) 538 N.W.2d 42

PEOPLE
v.
RODRIGUEZ

Docket No. 161283.

Michigan Court of Appeals.

Submitted July 11, 1995, at Grand Rapids. Decided July 25, 1995, at 9:15 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Kevin A. Lynch, Senior Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by F. Michael Schuck), for the defendant on appeal.

Before: DOCTOROFF, C.J., and NEFF and CONNOR, JJ.

CONNOR, J.

As a result of a plea bargain, defendant pleaded nolo contendere^[1] to a charge of second-degree murder, MCL 750.317; MSA 28.549, in exchange for a dismissal of the original charge of open murder. The sentencing guidelines recommended a minimum sentence range of ninety-six to three hundred months' imprisonment. The trial court sentenced defendant to twenty-five to seventy-five years. Defendant appeals as of right. We affirm.

Defendant first argues that the trial court erred in scoring Offense Variable (ov) 3, Intent to Kill or Injure, asserting that the court should have scored ten points rather than twenty-five points. The pertinent instructions for this variable provide: "Score `10' where a killing is intentional within the definitions of murder second degree or voluntary manslaughter but the death occurred in a combative situation or in response to victimization of the offender by the decedent." Sentencing Guidelines (2d ed, 1988) p 77 (emphasis added).

Defendant maintains that the circumstances rose to the level of a combative situation in part because the victim retrieved a crutch to use as a defensive weapon during a fight. Whether lawful defense of oneself or others constitutes a "combative situation" under OV 3 is an issue of first impression in this Court.^[2] Courts should interpret statutes according to the common and approved usage of any undefined words within them. People v Fields, 448 Mich. 58, 67; 528 NW2d 176 (1995). Random House Webster's College Dictionary (1992) defines "combative" as "ready or inclined to fight; pugnacious."

In this case, the deceased attended a birthday party and interceded in an argument that arose between two other guests, a male and a female. The male left the party, but returned about thirty minutes later with a group of fifteen to twenty other males, including defendant. Members of the group, including defendant, threatened to kill the ten or so partygoers, struck some of them, and smashed windows. The deceased then retrieved a wooden crutch from inside the house. When he returned, a fight had broken out. The deceased swung the crutch once before someone snatched it from him. The trial court remarked that the deceased was not an aggressor; rather, he lawfully acted in self-defense and in defense of others. Rather than being pugnacious or inclined to fight, the deceased was merely attempting to defend himself and the others at the party. We agree with the trial court that it would be absurd to reward defendant with a lower score merely because the deceased tried unsuccessfully to defend himself. Courts should avoid absurd results in statutory construction when possible. People v Pegenau, 447 Mich. 278, 295, n 16; 523 NW2d 325 (1994) (opinion by MALLETT, J.).

Also, we find that the circumstances here do not meet the threshold of a combative situation because the deceased was helpless when defendant stabbed him. After the deceased retrieved the crutch, another man wrested it from him and hit him with it, felling him. While the deceased was on the ground, four people pulled his shirt up over his arms, leaving him defenseless. Defendant then stabbed the deceased four times and killed him. Thus, we find that evidence exists to support the higher ov 3 score. See, generally, People v Hoffman, 205 Mich. App. 1, 24; 518 NW2d 817 (1994).

We also note that defendant's reliance on People v Payton, 186 Mich. App. 387; 464 NW2d 907 (1990), is misplaced. The Payton Court did not define a "combative situation" under ov 3, and the opinion includes no pertinent facts to permit a comparison with the facts of the instant case. Finally, Payton is distinguishable in that the defendant in Payton was convicted of voluntary manslaughter, whereas defendant's conviction here was for second-degree murder.^[3]

Defendant also argues that the brawl outside the party comprised a combative situation. However, defendant and his fellow gang members, who outnumbered the people at the party, were the initial aggressors who created the altercation. They broke windows, threatened to kill the partygoers, and physically assaulted them. Under these circumstances, it would be incongruent to reward defendant with a lower ov 3 score.

Defendant next argues that his sentence is disproportionate. We note that because defendant failed to provide this Court with a copy of his presentence investigation report, as required under MCR 7.212(C)(6), he has waived this issue. People v Oswald, 208 Mich. App. 444, 446; 528 NW2d 782 (1995). Even considered on its merits, defendant's sentence reflects no error requiring resentencing. First, defendant's sentence is within the guidelines recommended range and is thus presumed proportionate. People v Broden, 428 Mich. 343, 354-355; 408 NW2d 789 (1987). Second, we reject defendant's proportionality argument in light of People v Cobbs, 443 Mich. 276, 285; 505 NW2d 208 (1993), which is controlling. Defendant's sentence is in accordance with his plea, which demonstrates his agreement that the sentence is proportionate. Id.

We also find that defendant was not denied effective assistance of counsel at sentencing. As indicated above, the trial court correctly scored ov 3; therefore, defense counsel had no grounds upon which to object to the score. Counsel is not required to argue a meritless motion; by analogy, counsel is not required to make a groundless objection at sentencing. People v Gist, 188 Mich. App. 610, 613; 470 NW2d 475 (1991). Additionally, we find that defense counsel acted properly at defendant's allocution. The record shows that defense counsel asked the court to impose a sentence, within the guidelines range, based on defendant's lack of a prior criminal record. MCR 6.425(D)(2). See, generally, People v Jones (On Rehearing), 201 Mich. App. 449, 453; 506 NW2d 542 (1993).

Affirmed.

NOTES

[1] Defendant did not have sufficient memory of the offense to submit a guilty plea.

[2] The guidelines do not define "combative situation."

[3] Defendant also relies on People v Kouza, unpublished opinion per curiam of the Court of Appeals, decided June 11, 1992 (Docket No. 126590). We decline to follow Kouza because, as an unpublished opinion, it is not binding precedent. MCR 7.215(C)(1); People v Powell, 199 Mich. App. 492, 496, n 2; 502 NW2d 353 (1993). We also reject Kouza as a precedent because the Court in that case did not interpret the meaning of a "combative situation." As noted by the Court, the facts in Kouza abundantly demonstrated that the deceased victimized the defendant — which is not true in the instant case.