931 N.W.2d 566
Mich.2019Background
- In Jan 2015 Alonzo Carter, after an earlier verbal dispute, returned to Lawrence Sewell’s apartment wearing a ski mask and fired three shots through the apartment door at chest level; no one was hit but an infant’s air mattress was punctured.
- Carter was charged with multiple offenses; a jury acquitted him of assault with intent to murder but convicted him of assault with intent to do great bodily harm (AWIGBH) and several firearm-related offenses.
- At sentencing the trial court assessed points under PRV 1, OV 4, and OV 12; Carter objected and sought remand. The prosecution later conceded error as to PRV 1 and OV 4 but defended the 10 points under OV 12 (contemporaneous felonious acts).
- The Court of Appeals affirmed OV 12, reasoning each trigger pull was a separate act and only one act was required for conviction, so the other pulls were contemporaneous felonies.
- The Michigan Supreme Court reviewed whether multiple gunshots could be counted as separate "acts" under MCL 777.42(2)(a)(i) when the prosecution relied on all shots to prove the sentencing offense, and whether mis-scoring required resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether each gunshot is a separate "act" under OV 12 | Each trigger pull is a distinct act; only one act needed for conviction, so the other pulls are contemporaneous felonious acts | The prosecution relied on all three shots to prove intent for the sentencing offense, so the shots cannot be treated as separate acts for OV 12 | OV 12 points were improperly assessed; shots relied on to prove the sentencing offense cannot be counted as separate contemporaneous acts in this case |
| Proper interpretation of "sentencing offense" vs "act" in MCL 777.42(2)(a) | Not directly contested; prosecution treated "act" as separable from "sentencing offense" to justify OV 12 | Legislature intended a distinction; "sentencing offense" means the crime of conviction, which cannot be separated from acts the prosecution used to prove it | Court: "sentencing offense" = the crime of conviction; must ask whether the sentencing offense can be separated from other distinct acts; here it could not |
| Whether multiple potential victims would justify OV 12 scoring | Prosecution: could have charged separate assault offenses as to the woman and infant, supporting multiple acts | Defense: irrelevant because prosecution used all shots to prove the single sentencing offense | Court: possibility of other charges does not change that the prosecution relied on the same shots to establish the sentencing offense, so OV 12 points were improper here |
| Whether mis-scoring requires resentencing | Prosecution argued reduced points did not change range or require resentencing | Carter argued scoring error changed guidelines and preserved the issue | Court: reduction alters recommended minimum range; because error was relied on and preserved, resentencing required |
Key Cases Cited
- People v Francisco, 474 Mich 82 (2006) (defendant entitled to resentencing when sentence based on inaccurate guidelines calculation)
- People v Hardy, 494 Mich 430 (2013) (standard of review: factual findings at sentencing reviewed for clear error; statutory interpretation de novo)
- People v Light, 290 Mich App 717 (2010) (OV 12 multiple-act inquiry focuses on separability from the sentencing offense, not on whether separate charges could have been brought)
- People v McGraw, 484 Mich 120 (2009) (definition of "sentencing offense" for OV context)
- US Fidelity & Guaranty Co v Mich Catastrophic Claims Ass'n, 484 Mich 1 (2009) (different legislative words ordinarily signal different meanings)
- Badeen v PAR, Inc, 496 Mich 75 (2014) (statutory interpretation avoids rendering words nugatory)