Background
Tyree Darius Austin was convicted in Genesee Circuit Court of second-degree murder, carrying a concealed weapon, possession of marijuana, and possession of a firearm during the commission of a felony, arising from a shooting death. At sentencing, Offense Variable (OV) 5 — which addresses serious psychological injury to a victim’s family member — was scored at 15 points based on statements in the presentence investigation report (PSIR) from the victim’s father. The father indicated he would never see his son again, that the family was devastated, and that he was upset over Austin’s lack of remorse. The PSIR evaluator noted the family had endured a long judicial process but was looking forward to moving on. No family member spoke at sentencing, and defense counsel did not object to the OV 5 score.
The 15-point OV 5 score contributed to a total OV score of 105 points, producing a minimum sentencing guidelines range of 225 to 375 months or life. Austin was sentenced to 300 to 650 months for the murder conviction. His direct appeal challenged trial issues only, and both the Court of Appeals and the Michigan Supreme Court affirmed. Five years later, Austin filed a motion for relief from judgment raising, among other things, the OV 5 scoring error and his trial counsel’s failure to challenge it. The trial court denied the motion, and Austin obtained delayed leave to appeal.
The Court of Appeals granted leave limited to three issues: sentence proportionality, OV 5 scoring error, and ineffective assistance of counsel in connection with Austin’s Standard 4 brief.
The Court’s Holding
The Court of Appeals held that OV 5 was improperly assessed at 15 points. Under MCL 777.35, the 15-point score requires that a family member suffered serious psychological injury that may require professional treatment; grief alone is insufficient. The court found the record contained no description of specific manifestations of serious psychological injury or any indication that professional treatment was or might be needed. To the contrary, the PSIR indicated the family was moving forward with their lives. The father’s upset over Austin’s lack of remorse was attributed to the trial itself, not the victim’s death, and in any event was analogous to grief, which Michigan precedent holds does not meet the OV 5 threshold.
Because the OV 5 error could have been — but was not — raised in the original appeal, Austin was required to show good cause and actual prejudice under MCR 6.508(D). The court found both elements satisfied: defense counsel’s failure to challenge the scoring at sentencing and on direct appeal constituted deficient performance under the ineffective-assistance standard, and the error was prejudicial because correcting the score would reduce the minimum guidelines range from 225–375 months to 180–300 months. The trial court therefore abused its discretion in denying relief from judgment.
The court vacated Austin’s sentence and remanded for resentencing. Because resentencing was ordered, the proportionality claim and the Standard 4 brief issue were dismissed as moot.
Key Takeaways
- OV 5 requires documented serious psychological injury with potential need for professional treatment — generalized grief, devastation, or upset over a defendant’s courtroom demeanor does not satisfy the standard.
- A PSIR statement that the victim’s family was “moving on” and looking forward to closure actively cuts against an OV 5 finding, not in favor of one.
- Defense counsel’s failure to challenge an unsupported OV 5 score at sentencing and on direct appeal can constitute ineffective assistance of counsel sufficient to establish good cause for post-conviction relief under MCR 6.508(D).
- A 15-point OV 5 reduction here shifted the minimum guidelines range downward by 45 months at the low end, demonstrating the significant sentencing consequences of guideline-scoring errors.
Why It Matters
This decision reinforces that Michigan’s OV 5 scoring standard demands more than a family’s natural grief or generalized statements of loss. Prosecutors and sentencing courts must ensure the record contains specific, documented manifestations of serious psychological harm — and an indication that professional treatment may be warranted — before assessing the 15-point score. Boilerplate PSIR language describing a family as devastated, without more, will not suffice.
The case is also a significant reminder of the downstream consequences of unchallenged sentencing errors. Because defense counsel failed to object at sentencing or raise the issue on direct appeal, Austin spent years pursuing post-conviction relief before obtaining resentencing. Attorneys representing defendants at sentencing should carefully scrutinize each OV score against the record, as errors left unaddressed can be difficult — though not impossible — to remedy later.