Sentencing; Scoring of OVs 9, 10, 12, 13, & 19; People v Nelson; People v Stoner; People v Smith; Ineffective assistance of counsel for failing to challenge OV scores

On remand from the Supreme Court, the court held that OVs 13 and 19 were improperly scored, and there was presently insufficient evidence to support the OV 12 score. While it rejected defendant’s challenges to the scoring of OVs 9 and 10, as well as his ineffective assistance of counsel claim, he was entitled to remand for resentencing. He pled guilty to malicious destruction of a building valued at $1,000 or more but less than $20,000 and third-offense attempted domestic violence. The trial court sentenced him as a third-offense habitual offender to concurrent terms of 4 to 10 years for the former and 40 months to 5 years for the latter. In a prior opinion, a majority of the court “limited its analysis to OV 13 and concluded that it was properly scored at 25 points because defendant engaged in a pattern of criminal activity involving three crimes against a person” in a 5-year period. The Supreme Court vacated that judgment and remanded for reconsideration of “defendant’s challenge to OV 13 in light of Nelson and for consideration of the issues” raised in his Standard 4 brief. Pursuant “to the Supreme Court’s order in Nelson, in order for the sentencing offense to be ‘part of a pattern’ of crimes against persons for purposes of scoring OV 13 at 25 points under MCL 777.43(1)(a), it must itself be a crime against a person. In our initial ruling in this case, we counted three crimes against a person by using defendant’s lesser crime class conviction of third-offense attempted domestic violence[.]” However, the offense of the highest crime class here was the malicious destruction offense, a Class E felony, “and a sentencing information report was prepared for that crime only. Therefore, third-offense attempted domestic violence was not the sentencing offense and could not be used as the basis to score OV 13. Rather, the trial court was required to score the guidelines for the malicious destruction of a building offense only.” OV 13 should be scored at 10 points here. Further, “third-offense attempted domestic violence could not be used to score OV 12 because that offense resulted in a separate conviction.” The prosecution’s argument that OV 12 was properly scored at 5 points based on defendant’s felonious conduct toward his girlfriend’s daughter who was present but “not named as a victim in the charging document[,]” was rejected in Stoner. Finally, the court found that OV 19 was improperly scored at 15 points.