People of Michigan v. Charles Terrance Underwood, 327085

In 2010 Underwood pled guilty to third-degree home invasion (class E) and domestic violence; sentenced to jail plus 48 months’ probation for the home invasion.
In 2014 he pleaded guilty to violating probation; the trial court revoked probation and resentenced him on the underlying home-invasion conviction to 48 months–10 years’ imprisonment.
The Sentencing Information Report (SIR) scored Prior Record Variables at PRV Level F and Offense Variables at OV Level IV; OV 13 (Continuing Pattern of Criminal Behavior) was scored at 25 points.
OV 13 was scored on the theory the sentencing offense plus two earlier acts within five years (a 2007 felonious-assault charge reduced to aggravated assault and an assault-on-an-officer conviction under a local Flint ordinance) constituted three or more felony crimes against a person.
Defense moved to correct the sentence arguing OV 13 lacked support; the trial court denied the motion. The prosecutor conceded on appeal that OV 13 was not supported by a preponderance of the evidence.
The Court of Appeals vacated the sentence and remanded for resentencing because the prosecution failed to prove by a preponderance of the evidence that the prior acts were felony crimes against a person for OV 13 purposes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OV 13 was properly scored at 25 points (pattern of 3+ felony crimes against a person)	Prosecution relied on record charges/convictions from 2010 and 2007 to show three qualifying crimes within five years	Underwood argued OV 13 should be 0 because the prosecution did not prove by a preponderance that the dismissed/altered charges constituted felony crimes against a person	Court held OV 13 improperly scored: prosecution failed to prove by preponderance that the 2007 offenses qualified as felony crimes against a person; vacated sentence and remanded for resentencing

Morson v. People, 471 Mich 248 (legal questions on guidelines reviewed de novo)
Hardy v. People, 494 Mich 430 (factual findings at sentencing reviewed for clear error; application of facts to law reviewed de novo)
Butler v. People, 498 Mich 859 (unproven accusations cannot be used to score OV 13; prosecution must prove by preponderance that alleged crimes occurred and qualify as felonies)
Nix v. People, 301 Mich App 195 (court may consider dismissed charges at sentencing if record contains preponderant evidence that the felonious conduct occurred)
Earl v. People, 297 Mich App 104 (dismissed prior offenses may support OV scoring where unchallenged sentencing evidence shows the conduct occurred)
Francisco v. People, 474 Mich 82 (inaccurate guidelines scoring requires resentencing)
Lockridge v. People, 498 Mich 358 (sentencing guidelines are advisory on resentencing)