Defendant was convicted by a jury of assault with intent to commit great bodily harm, MCL 750.84, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced to 5V2 years’ to 10 years’ incarceration for the assault conviction and to a consecutive sentence of 2 years for the felony-firearm conviction. Defendant appealed by right and, in our prior opinion, we affirmed his convictions and sentence. People v Rhodes, unpublished opinion per curiam of the Court of Appeals, issued August 1, 2013 (Docket No. 310135).
Defendant’s challenge to his sentence is predicated on asserting that the trial court erroneously scored Offense Variable (OV) 14, which is scored at either 10 points or zero points, depending on whether the defendant was “a leader in a multiple offender situation” when considering the “entire criminal transaction.” MCL 777.44. We affirmed the trial court’s score of 10 points in reliance on People v Davis,
In Hardy, however, our Supreme Court explicitly rejected the “any evidence” standard and held that any decisions from this Court citing the “any evidence” standard were incorrect. Hardy,
The testimony indicates that several other people were present at the scene of the assault, but only one other person, Terence Adams, who was initially a codefendant but ultimately pleaded guilty to a reduced charge in exchange for testifying against defendant, was actually involved in the assault. Multiple defendants may be considered leaders under OV 14 if there are at least three offenders involved. MCL 777.44(2) Cb). Because the record only supports a finding that two offenders were involved, only one individual may be considered a leader in the instant criminal transaction.
The trial court concluded at sentencing that defendant “was clearly. . . the leader” because defendant “was the one with the gun.” The trial court initially opined that defendant had also “sort of led the charge against” the victim and “may have been the one that had the beef, too, or thought he did.” However, the prosecutor
The victim testified that he was walking home from a bar when he stopped to go into a gasoline station. After he continued walking, he heard a car stop near him. Two men jumped out of the car and approached him, one of whom he had seen a few minutes previously in the gasoline station and the other of whom had a gun. The former was later identified as Adams, and the latter was later identified as defendant. The victim testified that both men ordered him to get on the ground, and Adams asked him what he had been “laughing at in the store.” When the victim did not comply, both men began hitting him, and at some point the gun discharged, injuring the victim. More shots were fired at the victim as he ran away. Adams testified that both he and defendant punched the victim, that defendant had something that “looked like a gun” in his hand, and that he heard gunshots before he and defendant returned to their car. Adams denied knowing why the driver stopped the car, why defendant got out of the car, or that defendant had a gun prior to getting out of the car; but he conceded that he got out with the intention “[t]o hit the guy.” Other than Adams, defendant, and the victim, the only witnesses were the three other people in the car, of whom the driver did not testify and one passenger did not recall anything. The last passenger only recalled defendant and Adams getting out of the car, arguing with a man and hitting him, hearing a single gunshot, and seeing defendant put a gun under the seat.
The Legislature did not define by statute what constitutes a leader for the purposes of OV 14. We have not found any binding caselaw defining “leader” in this context. Consequently, we turn to the dictionary. See Ter Beek v City of Wyoming,
We remain of the opinion that defendant’s exclusive possession of a gun during the criminal transaction is some evidence of leadership, however it does not meet the preponderance of the evidence standard found in Hardy. This fact alone does not support the finding by the trial court that defendant issued orders that Adams did not. The record simply fails to reflect any other evidence of leadership. Under the dictionary definition of leadership, we cannot conclude that merely posing a greater threat to a joint victim is sufficient to establish an individual as a leader within the meaning of OV 14, at least in the absence of any evidence showing that the individual played some role in guiding or initiating the transaction itself. We are therefore constrained to reverse
“If a scoring error does not alter the guidelines range, resentencing is not required.” People v Sims,
Defendant’s sentence for assault with intent to commit great bodily harm is vacated, and the matter is remanded to the trial court for resentencing. In all other respects, pursuant to our prior opinion, we continue to affirm. We do not retain jurisdiction.
Notes
Judge Kelly concurred in the result only.