People of Michigan v. Robert Cecil Burr II ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 15, 2021
Plaintiff-Appellee,
v No. 351778
Ogemaw Circuit Court
ROBERT CECIL BURR II, LC No. 15-004517-FH
Defendant-Appellant.
Before: SHAPIRO, P.J., and CAVANAGH and REDFORD, JJ.
PER CURIAM.
Defendant appeals by leave granted1 his June 5, 2019 amended judgment of sentence
related to his plea of no contest to the commission of second-degree arson, MCL 750.73(1) (willful
or malicious burning of a dwelling). The circuit court originally sentenced defendant to 13 to 20
years’ imprisonment—an upward departure from the guidelines range. On January 6, 2016, the
court resentenced defendant to 10 to 20 years’ imprisonment. Because of a sentencing guidelines
scoring error, the court resentenced defendant again on March 22, 2017, but imposed the same
sentence of 10 to 20 years’ imprisonment which exceeded the recalculated guidelines range. This
Court vacated that sentence and remanded because the trial court erred by imposing a departure
sentence without allowing defendant the opportunity to withdraw his plea.2 On June 5, 2019, the
court sentenced defendant to serve 95 months to 20 years’ imprisonment, with credit for 1,492
days served. In this appeal, defendant challenges the assessment of 10 points for Offense Variable
(OV) 4, which is scored for all felony offenses (MCL 777.22) resulting in serious psychological
injury to a victim (MCL 777.34). We affirm.
1
People v Burr, unpublished order of the Court of Appeals, entered March 31, 2020 (Docket
No. 351778) (MAPPIS Event 20).
2
People v Burr, unpublished per curiam opinion of the Court of Appeals, issued March 21, 2019
(Docket No. 340195).
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I. FACTUAL BACKGROUND
On February 28, 2015, defendant set fire to George and Terri Clauss’s home and the fire
spread to two unoccupied houses next door. George and Terry had reared their children in the
home. Stacy Clauss, their daughter, lived in the Clauss family home with her five-year-old son,
his cat, the Clauss family dog, and Stacy’s boyfriend, Paul Esch. Stacy and Paul were sleeping
upstairs when the fire broke out and they barely escaped. The family pets, however, died in the
fire. About two years before the arsons, Stacy ended her relationship with defendant but he
continually sought to rekindle the romance. Stacy’s intimacy with Esch ignited defendant’s anger
so he lit the Clauss family home on fire resulting in its total destruction and the spread to the
neighboring houses, severely damaging them.
This Court recounted the procedural history in its previous opinion, People v Burr,
unpublished per curiam opinion of the Court of Appeals, issued March 21, 2019 (Docket
No. 340195):
In September 2015, Burr pleaded no contest to one count of second-degree
arson. In exchange for his plea, the prosecutor (1) amended the charge from first-
degree arson to second-degree arson, (2) dismissed the habitual offender notice,
and (3) dismissed a charge in a different case. Furthermore, the prosecutor and
Burr also “agreed that his sentencing guidelines for this offense that he’s pleading
to are 78 to 130, and that he will be sentenced within those guidelines.”
On November 4, 2015, the trial court departed upward from the minimum
sentencing guidelines range and sentenced Burr to serve 13 to 20 years for the
offense. Burr moved for resentencing, contending that his plea agreement entitled
him to be resentenced within the sentencing guidelines range or to be given the
opportunity to withdraw his plea in light of the court’s intention to impose a
sentence outside the guidelines range. The prosecutor did not oppose resentencing
and informed the court that the agreement was that Burr was to be sentenced within
the guidelines range. The trial court stated that it would “go along with the plea
agreement,” and it resentenced Burr to 10 to 20 years, which was a sentence within
the guidelines range.
Subsequently, Burr filed a motion for relief from judgment under MCR
6.502. The court granted the motion in part in order to correct an error in scoring
offense variable (OV) 17. The prosecutor conceded that OV 17 was improperly
scored. Due to the change in scoring, Burr’s minimum sentencing guidelines range
lowered to 57 to 95 months. Burr, representing himself, requested that he be
permitted to withdraw his plea. The court, however, did not provide him with an
opportunity to withdraw his plea. Instead, the court proceeded with resentencing.
In doing so, the court noted that the sentencing guidelines were advisory and that
any sentence imposed had to satisfy the principle of proportionality set forth in
People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). The court reasoned that,
under the circumstances, in order to impose a reasonable and proportionate
sentence the court had to depart from the guidelines range. Accordingly, the court
resentenced Burr to 120 months to 20 years. Burr objected, again noting that there
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was a plea agreement providing that he would be sentenced within a correctly
scored guidelines range. He requested to be either sentenced within the corrected
guidelines range of 57 to 95 months or to be allowed to withdraw his plea. The
court responded that “[t]here was no Killebrew[3] plea on the record in this case that
I read,” and declined to amend its sentencing decision further. In a later proceeding,
the court acknowledged that there was a plea agreement, but it concluded that in
the agreement Burr consented to be sentenced to 78 to 120 months. The court,
therefore, reasoned that although it departed upward from the corrected guidelines
range, it still imposed a sentence contemplated by the plea bargain so it did not have
to give Burr an opportunity to withdraw his plea. [Burr, unpub op at 1-2.]
Defendant appealed his March 2017 resentencing. Burr, unpub op at 1. He argued that
the trial court erred by imposing a departure sentence without giving him the opportunity to
withdraw his plea. Id. at 2. This Court agreed, and vacated defendant’s sentence and remanded
for resentencing. Id. at 4.
On remand, the court resentenced defendant to 95 months to 20 years’ imprisonment.
Defendant filed an application for leave to appeal which this Court granted on March 31, 2020.
People v Burr, unpublished order of the Michigan Court of Appeals, entered March 31, 2020
(Docket No. 351778).
II. STANDARD OF REVIEW
We review de novo the trial court’s interpretation and application of the legislative
sentencing guidelines. People v Sours, 315 Mich App 346, 348; 890 NW2d 401 (2016). We
review for clear error the trial court’s factual determinations which must be supported by a
preponderance of the evidence. Id. Clear error occurs “when the reviewing court is left with a
definite and firm conviction that an error occurred.” People v McChester, 310 Mich App 354,
358; 873 NW2d 646 (2015) (quotation marks and citation omitted). A court may consider “all
record evidence, including the contents of a PSIR, plea admissions, and testimony presented at a
preliminary examination,” when calculating the sentencing guidelines. Id. (citation omitted).
III. ANALYSIS
Defendant argues that the sentencing court erred by assessing 10 points for OV 4 on two
grounds: (1) that the record lacked sufficient evidence to establish that a victim of the sentencing
offense suffered serious psychological injury, and (2) that Terri did not constitute a “victim” for
the purposes of OV 4 because she is only a family member of a victim. We disagree with both
claims of error.
When calculating the sentencing guidelines range, a trial court may consider all record
evidence, including the contents of a PSIR, plea admissions, and testimony presented at a
3
People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982).
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preliminary examination. People v Johnson, 298 Mich App 128, 131; 826 NW2d 170 (2012).
Under MCL 780.764,
The victim has the right to submit or make a written or oral impact statement
to the probation officer for use by that officer in preparing a presentence
investigation report concerning the defendant pursuant to section 14 of chapter XI
of the code of criminal procedure, 1927 PA 175, MCL 771.14. A victim’s written
statement shall upon the victim’s request, be included in the presentence
investigation report.
A PSIR “is presumed to be accurate and may be relied on by the trial court unless effectively
challenged by the defendant.” People v Callon, 256 Mich App 312, 334; 662 NW2d 501 (2003).
OV 4 addresses psychological injury to a victim. MCL 777.34(1). Ten points are assessed
when “[s]erious psychological injury requiring professional treatment occurred to a victim . . . .”
MCL 777.34(1)(a). For the purposes of OV 4, “serious” means “having important or dangerous
possible consequence[s].” See People v Wellman, 320 Mich App 603, 610; 910 NW2d 304 (2017)
(alteration in original; quotation marks and citation omitted). The fact that a victim has not sought
professional treatment is not conclusive in determining whether points were properly assessed for
OV 4. MCL 777.34(2); People v Lockett, 295 Mich App 165, 183; 814 NW2d 295 (2012).
However, “[t]here must be some evidence of psychological injury on the record to justify a 10-
point score.” Id. (citation omitted). A trial court may not assume a psychological injury occurred
simply because a person in the victim’s circumstances would have suffered a serious psychological
injury. People v White, 501 Mich 160, 163; 905 NW2d 228 (2017). In Wellman, 320 Mich at 609,
however, this Court recognized that it previously held that “a victim’s ‘statements about feeling
angry, hurt, violated, and frightened’ supports a score of 10 points for OV 4.”
In this case, the sentencing court assessed defendant 10 points for OV 4. At defendant’s
resentencing hearing, the trial court considered defendant’s PSIR which included Terri’s and
George’s victim-impact statements. The court found that George and Terri, although not present
at the time of the fire, as owners of the home that burned had a vested interest in the property and
experienced significant loss as a result of its destruction. The court observed that, although Terri
had not yet sought medical or psychological treatment, she expressed in her victim statement how
seriously she had been psychologically and emotionally impacted as a result of loss of her family
home and her family dog which expired in the fire. The court found that George also expressed
emotional impact in his victim-impact statement, albeit not to the degree that Terri had. Based on
the victim-impact statements, the trial court assessed defendant 10 points for OV 4.
Analysis of Terri’s victim-impact statement supports the sentencing court’s OV 4 scoring
decision. Terri declared ongoing grief over the loss of her property, the home in which she reared
her children. She further expressed grief and loss over the Clauss family dog’s death which caused
her to cry every time she thought of the horrible way he died. She also lamented the total
destruction of the family home and its contents of family photos and personal belongings. She
stated that the incident broke her heart. The sorrow, depression, personal violation, and severe
loss expressed in her victim-impact statement is palpable. A preponderance of the evidence,
therefore, supported the trial court’s factual finding and assessment of 10 points for OV 4.
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Defendant has failed to establish that insufficient evidence supported the sentencing court’s
decision or that it committed clear error.
Defendant argues that Stacy alone constituted the victim in this case, not Terri, and that the
sentencing court could not assess points for OV 4 based on Terri as a victim. We disagree.
The crime of second-degree arson in violation of MCL 750.73(1) concerns the willful or
malicious burning of a dwelling. Thus, the arson to which defendant pleaded is a crime against
property. Ten points may be assessed for OV 4 where the crime against property caused serious
psychological injury to a victim. MCL 777.34(1)(a). In this case, defendant destroyed by fire
George and Terri’s family home, their family dog, and all of their family belongings within the
dwelling, and nearly killed their daughter and grandson. Terri made abundantly clear in her victim-
impact statement the emotionally devastating impact of her loss of her personal property as a result
of defendant’s crime. We are not persuaded that only Stacy constituted a victim for purposes of
OV 4 scoring. The facts establish quite the contrary. Accordingly, the trial court properly found
that Terri constituted a victim for purposes of assessing points for OV 4. Therefore, defendant is
not entitled to resentencing.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Mark J. Cavanagh
/s/ James Robert Redford
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