Full Opinion

Court of Appeals, State of Michigan ORDER Michael F. Gadola PEOPLE OF MI V DARRELL WAYNE FELTON JR Presiding Judge Docket No. 375518 Mark T. Boonstra LC No. 2021-001208-FC Thomas C. Cameron Judges The motion for reconsideration is GRANTED, and this Court's opinion issued July 16, 2026 is hereby VACATED. A new opinion is attached to this order. _______________________________ Presiding Judge A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on October 15, 2026 Date Chief Clerk 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, FOR PUBLICATION October 15, 2026 Plaintiff-Appellee, 9:44 AM v No. 375518 Kalamazoo Circuit Court DARRELL WAYNE FELTON, JR., LC No. 2021-001208-FC Defendant-Appellant. ON RECONSIDERATION Before: GADOLA, C.J., and BOONSTRA and CAMERON, JJ. CAMERON, J. Defendant pleaded guilty to manslaughter, MCL 750.321, and was sentenced to serve 7 to 15 years’ imprisonment. He appeals by leave granted,1 challenging the trial court’s restitution order requiring him to pay for two memorial pendants and the trial court’s assessment of Offense Variables (OV) 5 and 6. On reconsideration, we again affirm defendant’s sentence and vacate the trial court’s order of restitution in connection with the two pendants. We further clarify our prior opinion regarding the trial court’s assessment of 25 points for OV 6. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant shared custody of his child with his former wife, Everlin Cano. In July 2021, the child, while staying with defendant, contacted Cano and complained of being hungry and not being given food. Concerned, Cano went to defendant’s apartment with her boyfriend, the victim. After arriving, Cano called defendant. During this phone call, the victim argued with defendant’s girlfriend. The argument continued after Defendant’s girlfriend ended the call and accompanied 1 People v Felton, unpublished order of the Court of Appeals, entered June 25, 2025 (Docket No. 375518). -1- defendant outside to speak with Cano and the victim. Defendant grabbed his firearm before leaving the apartment, which he testified he typically did. When defendant and his girlfriend approached Cano’s car, the victim and defendant’s girlfriend resumed arguing. The verbal exchange escalated to the point that the victim told defendant to restrain his girlfriend before he “beat [defendant’s] a**.” Defendant’s girlfriend responded by spitting at the victim. The victim then began to exit the car, at which point defendant fatally shot the victim. The manner in which the victim exited the car was disputed at trial, but it was undisputed that the victim did not have a weapon and never touched either defendant or his girlfriend. Defendant was arrested and charged with open murder, MCL 750.316, and carrying a firearm during the commission of a felony (felony-firearm), MCL 750.227b. After defendant’s jury trial ended in a hung jury, defendant, in exchange for the dismissal of the felony-firearm charge, pleaded guilty to manslaughter as a lesser offense. The plea agreement and plea colloquy referred to the offense generally as manslaughter and did not specify whether the conviction was for voluntary or involuntary manslaughter. The judgment of sentence, however, clarifies that defendant was sentenced for manslaughter using the statutory short form, which does not distinguish between voluntary and involuntary manslaughter. MCL 750.321. Relevant to this appeal, the trial court assessed 15 points for OV 5 based on serious psychological injury to members of the victim’s family, and 25 points for OV 6 based on defendant’s intent to kill or injure the victim.. Defendant later moved to correct his sentence, arguing that two memorial pendants costing a combined $780 should not have been included in the restitution award. The trial court denied the motion, and defendant now appeals. II. RESTITUTION Defendant first argues that the trial court erred when it included the cost of two pendants in its restitution award. We agree. A. STANDARDS OF REVIEW “A trial court’s decision to order restitution is reviewed for an abuse of discretion, which occurs when the trial court chooses an outcome that falls outside the range of principled outcomes.” People v Lee, 314 Mich App 266, 272; 886 NW2d 185 (2016) (quotation marks and citations omitted). “However, when the question of restitution involves a matter of statutory interpretation, review de novo applies.” Id. (quotation marks, brackets, and citation omitted). “A trial court’s factual findings underlying a restitution order are reviewed for clear error.” Id. “A finding is clearly erroneous if this Court is left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks and citation omitted). B. ANALYSIS The Crime Victim’s Right Act (CVRA), MCL 780.751 et seq., and the general restitution statute, MCL 769.1a, require sentencing courts to order defendants to make full restitution for losses directly caused by the criminal conduct underlying the conviction. See People v Corbin, -2- 312 Mich App 352, 359-360; 880 NW2d 2 (2015). Specifically, the CVRA, MCL 780.766(2), “mandates that a sentencing court order convicted defendants to ‘make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction.’ ” Corbin, 312 Mich App at 359, quoting MCL 780.766(2) (brackets omitted). The statute further provides that “[i]f a crime results in physical or psychological injury to a victim, the order of restitution shall require” the defendant to “[p]ay an amount equal to the cost of actual funeral and related services.” MCL 780.766(4)(f). Similarly, the general restitution statute requires a criminal defendant to “make full restitution to any victim of the defendant’s course of conduct that gives rise to the conviction[,]” including, as relevant here, payment of “an amount equal to the cost of actual funeral and related services.” MCL 769.1a(2) and (5). Although both statutes require sentencing courts to order restitution that is “maximal and complete[,]” restitution is limited to losses that bear a “direct, causal relationship” to the defendant’s criminal conduct. People v Bentley, 350 Mich App 285, 295; 31 NW3d 823 (2024) (quotation marks and citations omitted). “Therefore, restitution may encompass only those losses that are easily ascertained and are a direct result of a defendant’s criminal conduct.” Id. (quotation marks and citation omitted). The prosecution bears the burden of proving the amount of the victim’s loss, and any dispute regarding restitution must be resolved by a preponderance of the evidence. Id. In granting trial courts the authority to order restitution, “the Legislature has clearly manifested an intent to make victims of a crime as whole as they can fairly be made and to leave the determination of how best to do so to the trial court’s discretion on the basis of the evidence presented” by the petitioner to prove the victim’s loss. [In re White, 330 Mich App 476, 483; 948 NW2d 643 (2019) (citation omitted).] This case presents an issue of first impression requiring us to determine what constitutes “actual funeral and related services” under the restitution statutes. As this Court has explained, “[o]ur Supreme Court has defined the word ‘actual’ as ‘existing in act, fact, or reality; real.’ ” Corbin, 312 Mich App at 365 (citation omitted). Accordingly, restitution is limited to funeral costs that were actually incurred. Moreover, the costs must have been incurred for the funeral itself or for “related services” to the funeral. Finally, to be recoverable, the actual funeral or related costs must be a direct result of the defendant’s criminal conduct, Bentley, 350 Mich App at 295, meaning that only expenditures that are reasonable to conduct the funeral and related services are recoverable.2 2 The parties agree that the trial court’s responsibility to order restitution for funeral or related expenses is subject to a reasonableness requirement. For example, both acknowledge that a victim’s family cannot recover restitution for extravagant expenses, like a casket made of gold or an elaborate mausoleum. Although such purchases may technically qualify as “actual” funeral costs, we conclude that compensation for such lavish expenditures would be contrary to the actual goal of restitution: to make the victims whole, not to provide a windfall. See In re White, 330 Mich App at 480. Accordingly, we hold that, in addition to proving that the claimed expenses are -3- Defendant also argues on appeal that the restitution statutes only permit recovery for “services” not “goods.” We decline to construe the statutes so narrowly, as doing so would circumvent the overall purpose of restitution—to make the victim whole. Under defendant’s interpretation, a victim’s family would be required to bear the cost for traditional funeral items like caskets, urns, and flowers, even though those items are commonly recognized as components of a funeral. Nothing in the statutory language suggests that the Legislature intended this result. We therefore hold that the restitution statutes authorize the recovery of expenses actually incurred for the funeral, whether for goods or services, as well as for services related to the funeral.3 Here, the memorial pendants fall outside the plain language of the restitution statutes. The sliding heart pendant and wings pendant were neither funeral costs nor related services. The prosecution presented no evidence that these pendants were used to prepare, conduct, or complete the actual funeral or to facilitate the disposition of the victim’s remains or otherwise constitute a “related service[]” provided in connection with the actual funeral. Although the prosecution theorizes that one or both of the pendants are capable of storing ashes of the deceased, it is equally plausible that they were simply pieces of memorial jewelry purchased by the family for personal remembrance; commemorative keepsakes purchased for the benefit of a victim’s family member, independent of the funeral’s expenses. The fact that the pendants were purchased from the funeral home and are listed on its invoice did not transform them into compensable funeral expenses. If every memorial item sold by a funeral home necessarily qualified as a compensable funeral expense, the statutory limitation to the cost of “actual funeral and related services” would be rendered meaningless. The only evidence the prosecution presented to the trial court was the funeral home’s invoice. That invoice referenced the purchase of a basic funeral home package, together with several optional purchases related to the funeral that increased the amount owed. Among the optional purchases were the “sliding heart pendant” and “wings pendant” at issue in this case, totaling $780. Although the parties seem to agree that the items are memorial jewelry sold by the funeral home, the prosecution provided no evidence that they constituted compensable funeral expenses under either restitution statute. Because the prosecution did not satisfy its burden of proof, the trial court abused its discretion by awarding restitution for the pendants. III. OFFENSE VARIABLES Defendant next argues that the trial court erred by assessing OV 5 at 15 points and OV 6 at 25 points. We disagree. actual funeral or related costs directly resulting from the defendant’s crime, the prosecution also bears the burden of demonstrating that the claimed expenditures are reasonable. 3 We interpret “related services” to be services that were not necessarily performed contemporaneously with the funeral but are nonetheless directly related to the funeral itself. So, for example, the cost of embalming or cremation before the funeral is a related service. -4- A. STANDARDS OF REVIEW We review issues regarding “the proper interpretation and application of the legislative sentencing guidelines[]” de novo. People v Ambrose, 317 Mich App 556, 560; 895 NW2d 198 (2016) (quotation marks and citation omitted). The trial court’s factual findings “are reviewed for clear error and must be supported by a preponderance of the evidence.” Id. (quotation marks and citation omitted). “Clear error is present when the reviewing court is left with a definite and firm conviction that an error occurred.” People v Fawaz, 299 Mich App 55, 60; 829 NW2d 259 (2012) (quotation marks and citation omitted). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation,” which we also review de novo. Ambrose, 317 Mich App at 560 (quotation marks and citation omitted). B. OV 5 OV 5 addresses “psychological injury to a member of a victim’s family.” MCL 777.35(1). 15 points for OV 5 are assessed if “[s]erious psychological injury requiring professional treatment occurred to a victim’s family.” MCL 777.35(1)(a). A 15-point assessment is appropriate if the injury “may require professional treatment,” and the fact that treatment has not been sought is not conclusive. MCL 777.35(2). Defendant argues that, although the victim’s family suffered grief, the evidence did not establish the “serious” psychological injury necessary to support a 15-point score. He further contends that the trial court improperly presumed serious psychological harm based solely on the nature of the offense. The record does not support defendant’s reasoning. In explaining its decision, the trial court relied on the victim impact statements. The trial court specifically discussed the family’s statements concerning the victim’s recent loss of his father and the cumulative emotional toll on the family. Although the court also referred to “the nature of the case,” its reasoning demonstrated that its ruling relied on the evidence of the actual psychological effect the victim’s death had on his family rather than presuming serious psychological injury merely because the case involved a homicide. The trial court also correctly recognized that professional treatment need not actually have been sought for OV 5 to be assessed at 15 points. The record also does not support defendant’s assertion that the victim’s family suffered only ordinary grief as opposed to “serious” psychological injury. For purposes of OV 5, the word “serious” is defined “as having important or dangerous possible consequences.” People v Calloway, 500 Mich 180, 186; 895 NW2d 165 (2017) (quotation marks and citation omitted). The victim impact statements describe profound and lasting emotional harm the victim’s family suffered from his death. The victim’s aunt stated that the loss “destroyed” her life, leaving her unable to describe her pain and emptiness she was experiencing. The victim’s grandmother explained that defendant’s actions “left a huge hole in this family that will never close[,]” and his brother discussed the fact that while other kids in his class were “worried about what college they were going to or thinking about their futures[,]” he was “stuck thinking about if [his] family was going to make it through another day.” The victim’s mother stated that defendant “destroyed” her -5- and “ripped [the victim’s family] in half.” Additionally, the victim’s parents reported that their daughter had sought counseling because of the psychological impact of the homicide. Thus, the trial court did not err by assessing 15 points for OV 5. C. OV 6 OV 6 addresses “the offender’s intent to kill or injure another individual.” MCL 777.36(1). Under MCL 777.36(1)(b), 25 points are assessed if “[t]he offender had unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result.” On the other hand, 10 points are assessed if “[t]he offender had intent to injure or the killing was committed in an extreme emotional state caused by an adequate provocation and before a reasonable amount of time elapsed for the offender to calm or there was gross negligence amounting to an unreasonable disregard for life.” MCL 777.36(1)(c). The statute requires that the trial court assess OV 6 “consistent with a jury verdict unless the judge has information that was not presented to the jury.” A 10-point assessment is required “if a killing is intentional within the definition of second[-]degree murder or voluntary manslaughter, but the death occurred in a combative situation or in response to victimization of the offender by the decedent.” MCL 777.36(2)(a) and (b). Defendant first argues that 25 points could not properly be assessed for OV 6 because he was convicted of manslaughter, not murder, and manslaughter does not require the same criminal intent as murder. As our Supreme Court explained in People v Mendoza, 468 Mich 527, 540; 664 NW2d 685 (2003), voluntary manslaughter requires a death along with “either an intent to kill, an intent to commit great bodily harm, or an intent to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.” Murder and manslaughter are distinguished by malice—present in murder but absent in manslaughter—which, in voluntary manslaughter, “is negated by the presence of provocation and heat of passion.” Id. The mental state required for voluntary manslaughter identified in Mendoza corresponds to that identified in MCL 777.36(1)(b). Thus, the fact that defendant was convicted of manslaughter rather than murder, did not, standing alone, preclude the trial court from assessing 25 points for OV 6. Nor does the possibility that defendant’s conduct could also satisfy MCL 777.36(1)(c) necessarily require a 10-point assessment. Indeed, OV 6 expressly directs the sentencing court to determine which of the listed circumstances apply and assign “the number of points attributable to the one that has the highest number of points.” MCL 777.36(1). Accordingly, even if defendant’s conduct satisfied a circumstance identified in MCL 777.36(1)(c), this does not necessarily preclude a 25-point assessment if the trial court concludes that the evidence supports one of the mental states specified in MCL 777.36(1)(b). Finally, the trial court did not clearly err by rejecting defendant’s contention that the killing occurred in a “combative situation” or “in response to victimization of the offender by the decedent.” MCL 777.36(2)(b). The trial court found that defendant armed himself before he confronted Cano and the victim and shot the victim multiple times, including in the back, when the victim began exiting the car after being spit at by defendant’s girlfriend. The record also supports the trial court’s reasoning that the victim was not the aggressor, and, to the extent that defendant’s argument depends on the crediting of one witness’s testimony over another’s, we defer -6- to the trial court’s credibility assessments. People v Ziegler, 343 Mich App 406, 411; 997 NW2d 493 (2022). The trial court therefore did not err by assessing 25 points for OV 6. In his motion for reconsideration, defendant argues that this Court misunderstood the nature of his manslaughter conviction. Specifically, defendant contends that he pleaded guilty to involuntary manslaughter and that this Court mistakenly treated his conviction as one for voluntary manslaughter for purposes of scoring OV 6. Defendant’s argument fails for two reasons. First, defendant did not plead to a specifically designated offense of voluntary or involuntary manslaughter. Rather, defendant’s manslaughter conviction was pursuant to the short- form statute that does not differentiate between the two offenses. See MCL 767.44. Therefore, the record does not support defendant’s assertion that he pleaded guilty to involuntary manslaughter or that the trial court was required to assess 10 points for OV 6 on that basis. Second, the trial court’s 25-point assessment for OV 6 reflects its determination that defendant acted with the required intent for voluntary manslaughter. The record supports that determination. Defendant and his girlfriend ran out of their apartment and confronted Cano and the victim, who remained in the car for most of the confrontation. Defendant’s girlfriend pounded on the window of the car yelling at Cano and the victim while defendant was standing on the passenger side of the car where the victim was seated, armed with a gun. After defendant’s girlfriend spat at the victim, the victim began to exit the car. At the time defendant shot the victim, however, the victim had barely gotten one leg out of the car and was not yet fully standing. The victim never “went after” defendant or his girlfriend and was unarmed. Yet, defendant nevertheless shot the victim multiple times, including two shots to the victim’s back. Although defendant characterizes the shooting differently, the trial court was entitled to consider the evidence and make credibility determinations in order to correctly assess offense variables.4 Defendant also argues that this Court’s interpretation of MCL 777.36(1)(b) renders some or all of MCL 777.36(1)(c) surplusage. He reasons that, if both subsections may apply to voluntary manslaughter, subsection (c)’s reference to voluntary manslaughter would serve no purpose. According to defendant, because a trial court must score OV 6 at the highest applicable point value, MCL 777.26(1), any voluntary manslaughter conviction that qualifies for points under subsection (1)(b) would necessarily be scored under subsection (1)(c). We disagree. 4 We further conclude that, even if defendant could establish that the trial court should have assessed 10 points rather than 25 points for OV 6, he still would not be entitled to resentencing. Defendant’s total OV score was 95, and his Prior Record Variable (PRV) score was 0, resulting in an OV level of VI and a PRV level of A for Class C felonies. Reducing defendant’s OV 6 score by 15 points would lower his total OV score from 95 to 80. But for Class C felonies, OV level VI is reserved for OV scores of 75 or more. Thus, even accepting defendant’s proposed point assessment of OV 6, his OV level would remain VI, and his applicable guidelines range would be unchanged. Consequently, resentencing would be unwarranted. See People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring error does not alter the appropriate guidelines range, resentencing is not required.”). -7- It is well-recognized that, “as a general rule, we must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of [a] statute surplusage or nugatory.” People v Pinkney, 501 Mich 259, 282; 912 NW2d 535 (2018) (quotation marks and citation omitted). But “the cannon against superfluity assists only where a competing interpretation gives effect to every clause and word of a statute.” Id. at 284 (quotation marks and citation omitted). Defendant’s proposed interpretation does not do so. Under his interpretation, trial courts would be required to assess 10 points for OV 6 for every voluntary manslaughter conviction regardless of the underlying facts of the case. Defendant’s interpretation, however, is inconsonant with subsection (2)(b), which directs that 10 points be assessed for a voluntary manslaughter conviction when the death “occurred in a combative situation or in response to victimization of the offender by the decedent.” MCL 777.36(2)(b) (emphasis added). If subsection (c) categorically governed all voluntary manslaughter convictions, there would be no reason for subsection (2)(b) to specifically provide for a 10-point assessment in certain voluntary manslaughter cases. Ironically, adopting defendant’s interpretation would render subsection (2)(b), at least as it applies to voluntary manslaughter, surplusage. Therefore, “we must here, as in every case, give effect to the will of the Legislature by scrupulously examining the statutory text to determine its plain meaning.” Id. at 288. The plain language of MCL 777.36(1)(b) is consistent with the intent elements for both second-degree murder and voluntary manslaughter. Mendoza, 468 Mich at 540. Thus, by its terms, MCL 777.36(1)(b) may apply to a voluntary manslaughter conviction, depending on the facts of the particular case. Reading the statute as a whole further supports our interpretation. MCL 777.36(2)(a) provides that a trial court must assess OV 6 “consistent with a jury verdict unless the judge has information that was not presented to the jury.” Id. This provision demonstrates that the Legislature intended the assessment of OV 6 to be fact-specific and authorized trial courts to use their discretion within the parameters established by statute. Thus, the plain language of MCL 777.36, read as a whole, indicates that the Legislature intended that a defendant convicted of voluntary manslaughter is to be assessed 25 or 10 points under subsections (1)(b) or (1)(c), respectively, depending on the specific facts of the case. We affirm defendant’s sentence and vacate in part the trial court’s order of restitution with respect to the two pendants. /s/ Thomas C. Cameron /s/ Michael F. Gadola /s/ Mark T. Boonstra -8-