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BlogsPublications | August 11, 2017
2 minute read

COA: Attempted crimes may be felonies for sentencing purposes; co-defendant convictions are used to score offense variables

Michigan’s Sentencing Guidelines are clear, said the Court of Appeals: defendants may do more time, even when acquitted of the crime. In People v. Jackson, No. 332307, the Michigan Court of Appeals reviewed the trial court’s scoring of Offense Variables (OV) 1, 2, and 13. First, a trial court should look at whether the underlying offense for an “attempt” conviction, in this case resisting and obstructing a police officer, is a felony to determine if defendant’s past attempt convictions were “felonious criminal activity” under OV 13.  Second, OVs 1 and 2 are properly scored for use of a weapon, even though the jury acquitted defendant of felony-firearm, because the OVs require all co-defendants to be assessed the same number of points, and the co-defendants here pled guilty to armed robbery.

A jury acquitted defendant of two charges of felony-firearm, but it deadlocked on the armed robbery counts. The defendant then entered into a plea deal, admitting to unarmed robbery in violation of MCL 750.530. He was then sentenced to “8 to 22 years and 6 months’ imprisonment.”

On appeal the defendant made two arguments against his sentence. First, he argued that the trial court erred in scoring OV 13 by taking into account his prior misdemeanors for “attempted resisting and obstructing a police officer.” The sentencing guidelines, he said, mandated that only past “felonious criminal activity” be considered. Because he was convicted of misdemeanors, those crimes were not rightly considered. The court disagreed, noting that, for sentencing purposes, attempted crimes are “in the same category as the offense of actually resisting and obstructing a police officer,” which is a felony offense. Thus, the trial court was correct to score the defendant’s past misdemeanor convictions as “felonious criminal activity” under OV 13.

Second, the defendant argued that he should not be assessed any points under OVs 1 and 2 because those variables require use of a weapon. He was acquitted of the charges concerning his use of a weapon in the robbery, he said, so those variables were improperly scored. The court of appeals upheld the trial court, saying that the OVs require “if one offender is assessed points under the variable, ‘all offenders shall be assessed the same number of points.’” The defendant’s co-defendants pled guilty to armed robbery and were assigned points under OVs 1 and 2. Thus, because the scoring guidelines require that all offenders be assessed the same number of points, the defendant was rightly assigned points for armed robbery after being acquitted of those charges.

The Court of Appeals therefore upheld the trial court’s sentence in all respects.