2.13Issues Regarding OV Scoring In General

A.OVs Are Generally Offense-Specific

“Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable.” People v McGraw, 484 Mich 120, 133 (2009).¹ 

When scoring offense-specific variables, “a trial court may properly consider all of ‘defendant’s conduct during’ that offense.” People v Chelmicki, 305 Mich App 58, 72 (2014), quoting McGraw, 484 Mich at 134.² 

McGraw requires sentencing courts “to separate the conduct forming the basis of the sentencing offense from the conduct forming the basis of an offense that was charged and later dismissed or dropped, regardless of the sequence in which the conduct transpired.” People v Gray, 297 Mich App 22, 28, 31, 33-34 (2012).

B.Conduct Inherent in a Crime

“[A]bsent an express prohibition, courts may consider conduct inherent in a crime when scoring offense variables.” People v Hardy, 494 Mich 430, 441-442 (2013) (holding that “[t]he Court of Appeals . . . erred in [People v Glenn, 295 Mich App 529, 535 (2012),] to the extent it concluded that ‘circumstances inherently present in the crime must be discounted for purposes of scoring an OV’”). “The sentencing guidelines explicitly direct courts to disregard certain conduct inherent in a crime when scoring OVs 1, 3, 8, 11, and 13”;³ however, “[i]n all other cases, the Sentencing Guidelines allow a factor that is an element of the crime charged to also be considered when computing an offense variable score.” Hardy, 494 Mich at 442 (quotation marks and citation omitted).

C.Co-Offenders’ Conduct⁴

“[T]he court may not assess [a] defendant points solely on the basis of his or her co-offender’s conduct unless the OV at issue explicitly directs the court to do so.” People v Gloster, 499 Mich 199, 201, 209-210 (2016) (holding that “a sentencing court may not assess a defendant 15 points for predatory conduct under OV 10 solely on the basis of the predatory conduct of the defendant’s co-offenders” because “MCL 777.40 contains no language directing a court to assess a defendant the same number of points as his co-offenders in multiple-offender situations”). “[T]he Legislature has explicitly provided that all offenders in a multiple-offender situation should receive the same score for OVs 1, 2, and 3, but excluded that language from other OVs[.]” Gloster, 499 Mich at 206.

In a multiple-offender situation, the trial court must “increase a defendant’s sentence on the basis of a codefendant’s conduct where the defendant would have been assessed the same number of points had the defendant been convicted of a charged offense . . . so long as the calculation is solely based on a codefendant’s conduct and not charges for which a defendant was acquitted.” People v Ventour, ___ Mich App ___, ___ (2023) (holding that scoring OVs 1 and 2 in this manner was not contrary to the rule from People v Beck, 504 Mich 605 (2019)).

OV 14 also “addresses the role of offenders who act in concert with others and requires the court to score the variable when the offender acted as a leader.” People v Dupree, 511 Mich 1, 10 (2023), citing MCL 777.44. In contrast to the multiple offender provisions in OVs 1, 2, and 3, offenders receive different scores under OV 14 depending on the role the offender played in the offense. Dupree, 511 Mich at 9-10.

D.Judicial Fact-Finding

Despite the fact that the sentencing guidelines are now advisory only, see People v Lockridge, 498 Mich 358 (2015), the Lockridge Court specifically noted that its holding “[did] nothing to undercut the requirement that the highest number of points possible must be assessed for all OVs, whether using judge-found facts or not.” Id. at 392 n 28, citing MCL 777.21(1)(a); MCL 777.31(1); MCL 777.32(1). “The fact that a trial court engaged in judicial fact-finding is not relevant to the inquiry into an evidentiary challenge” to the scoring of the OVs. People v Biddles, 316 Mich App 148, 158, 161 (2016) (disagreeing “with any contention that a trial court can only use facts determined by a jury beyond a reasonable doubt when calculating a defendant’s OV scores under the guidelines,” which “is in direct contradiction of the Lockridge Court’s rejection of the defendant’s argument that juries should be required to find the facts used to score the OVs”), citing Lockridge, 498 Mich at 389. Under Lockridge, 498 Mich at 392 n 28, “judicial fact-finding is proper, as long as the guidelines are advisory only.” Biddles, 316 Mich App at 159, 159-160 n 5 (additionally disagreeing with the suggestion in People v Blevins, 314 Mich App 339, 362 n 8 (2016), that “judicial fact-finding ‘constitutes a departure’”). See Section 1.4 for discussion of Lockridge.

E.Acquitted Conduct

“[D]ue process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted.” People v Beck, 504 Mich 605, 629 (2019). “When a jury has made no findings (as with uncharged conduct, for example), no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard.” Id. at 626.⁵ See also People v Johnson, ___ Mich App ___, ___ (2024). However, “when a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent,” and “conduct that is protected by the presumption of innocence may not be evaluated using the preponderance-of-the-evidence standard without violating due process.” Beck, 504 Mich at 626, 627. Acquitted conduct can be identified by examining “what the parties actually disputed at trial.” People v Brown, 339 Mich App 411, 423 (2021). “This approach moves away from prohibiting any and all facts and circumstances related to any element of the crime and instead focuses on the key facts and circumstances that the parties argued about during the trial.” Id. at 423. “This approach is similar to the ‘rational jury’ standard used in the double-jeopardy context, which requires examining the record to determine the ground or grounds upon which a rational jury could have acquitted the defendant.” Id. at 423. “[U]nder the rational-jury approach, the sentencing court could consider facts and circumstances that were not, in a practical sense, put in dispute at trial, as long as those facts and circumstances were otherwise consistent with the jury’s acquittal on a particular charge.” Id. at 425. “Moreover, if a specific fact or circumstance was relevant to both the acquitted charge and the convicted charge—i.e., if there was an overlap of relevant conduct—then the trial court could consider that fact or circumstance when sentencing on the convicted charge.” Id. at 425 (concluding that the “rational-jury approach” of identifying the facts and circumstances that are prohibited at sentencing is “consistent with Beck”). See also People v Boukhatmi, ___ Mich App ___, ___ (2024).

1.Examples of Application of Beck

It is a violation of a defendant’s right to due process when a trial court considers a defendant’s acquitted conduct when imposing sentence on the defendant. People v Beck, 504 Mich 605, 629 (2019).

Where “the factual issue facing the jury in determining the defendant’s guilt or innocence of [an] assault with intent to murder charge was whether he passed a gun to another individual, who it is undisputed then fired the gun into a crowd on a city street,” and the jury acquitted the defendant of the AWIM charge, the trial court improperly sentenced the defendant based on acquitted conduct by assigning 25 points to OV 9 for endangering the crowd and departing upwards from the recommended guidelines range “in order to deter gun violence on the city’s streets[.]” People v Roberts, 506 Mich 938 (2020).

Where the defendant was convicted of being a felon in possession, but acquitted of second-degree murder and voluntary manslaughter based on a self-defense theory, with a jury finding specifically “that defendant was not criminally responsible for [the victim’s] death, . . . the trial court could not consider the actual shooting and death when sentencing on the felon-in-possession conviction.” People v Brown, 339 Mich App 411, 427 (2021). “All of the relevant facts and circumstances leading up to th[e] point [where the victim brandished his weapon] can be considered by the trial court when sentencing defendant on the felon-in-possession conviction,” but “[d]efendant’s conduct after that point and [the victim’s] resulting death fall under [the] concept of ‘acquitted conduct’ and are off-limits for purposes of sentencing.” Id. at 427.

In a multiple offender case, the trial court did not err by scoring OV 1 and OV 2 on the basis of the defendant’s codefendants’ possession of a firearm where the defendant was convicted of second-degree murder under an aiding and abetting theory but acquitted of felony-firearm. People v Ventour, ___ Mich App ___, ___ (2023). “Defendant’s acquittal for felony-firearm has no bearing on the trial court’s finding that another offender possessed a firearm during the commission of the offense.” Id. at ___. Thus, “Beck does not prohibit the trial court from adhering to the clear statutory instructions for assessing points under OVs 1 and 2” in multiple offender cases. Ventour, ___ Mich App at ___ (explaining that “defendant’s acquittal of felony-firearm prohibited the trial court from enhancing defendant’s sentence for second-degree murder on the basis of a finding that defendant personally possessed a firearm, or aided or abetted a co-offender’s possession of a firearm,” and concluding that “the trial court did not score OV 1 and OV 2 on the basis of any such finding,” instead it scored points “because defendant was a codefendant in a multiple-offender case in which the other offenders possessed and used a lethal weapon and were assessed points for the presence and use of such a weapon”).

In a criminal sexual conduct case involving multiple charges, the trial court erred by scoring OV 13 for a pattern of felonious criminal activity—three or more crimes against a person—when the jury effectively acquitted defendant of three of the four charges against him. People v Boukhatmi, ___ Mich App ___, ___ (2024). In Boukhatmi, defendant was charged with two counts of first-degree criminal sexual conduct (CSC-I) and two counts of second-degree criminal sexual conduct (CSC-II). Id. at ___. “Looking to what the parties actually put in dispute at trial, defendant never admitted touching [his daughter] inappropriately—thus, essentially all alleged acts of sexual touching were put at issue at trial.” Id. at ___. Thus, “for purposes of defendant’s sentence, (i) the jury found only one instance of CSC-II occurred, and (ii) the jury rejected the prosecutor’s argument that three other CSC crimes occurred.” Id. at ___. However, the trial court “concluded that, because the jury convicted defendant of one count of CSC-II, it is likely that other sexual contacts occurred that [defendant’s daughter] referenced in her disclosure of and testimony about defendant’s conduct.” Id. at ___. The trial court determined that OV 13 should be scored at 25 points as part of a pattern of felonious criminal activity involving three or more crimes against a person within a five-year period, including the sentencing offense. Id. at ___. “Because the prosecutor lacked sufficient evidence to convict defendant of any instance of CSC other than one count of CSC-II, the trial court could not find that defendant committed three or more CSC crimes against [his daughter] to increase his punishment under OV 13.” Id. at ___. “Doing so  . . . punished defendant as though he were convicted of four counts of CSC, when he was convicted of one count and acquitted of three.” Id. at ___. Accordingly, “the trial court violated defendant’s due-process rights by impermissibly considering acquitted conduct to increase his punishment at sentencing[.]” Id. at ___.

2.Beck Does Not Apply Retroactively

“Retroactive application of Beck on collateral review is not warranted under either the federal or Michigan frameworks.” People v Motten, ___ Mich App ___, ___ (2024). See People v Beck, 504 Mich 605 (2019). In Motten, defendant filed a successive motion for relief from judgment arguing that “he was entitled to resentencing under Beck,” and that “his motion was not procedurally barred by MCR 6.502(G)^[6] because Beck represented a retroactive change in law that occurred after the first motion for relief from judgment was filed[.]” Id. at ___ (quotation marks omitted).

The United States Supreme Court addressed federal retroactivity in the plurality opinion in Teague v Lane, 489 US 288 (1989). Motten, ___ Mich App at ___, citing Montgomery v Louisiana, 577 US 190, 198 (2016). According to Teague, “two categories of rules . . . are not subject to [the] general retroactivity bar. First, courts must give retroactive effect to new substantive rules of constitutional law. Substantive rules include ‘rules forbidding criminal punishment of certain primary conduct,’ as well as ‘rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.’” Montgomery, 577 US at 198; see also Motten, ___ Mich App at ___; Teague, 489 US at 307. The Motten Court noted that Teague set forth a framework for determining retroactivity: (1) “whether the decision at issue announced a new rule,” and (2) “whether the new rule is a substantive rule of constitutional law.” Motten, ___ Mich App at ___, citing People v Barnes, 502 Mich 265, 267, 269, 271 (2018). “Because Beck explicitly determined it was considering the question ‘on a clean slate,’  . . . Beck announced a new rule of law that was not dictated by previous precedent.” Motten, ___ Mich App at ___, quoting Beck, 504 Mich at 625. Under the second prong, the Barnes Court held that “Lockridge^[7] did not establish a substantive rule, ‘because it applies neither to primary conduct nor to a particular class of defendants but rather adjusts how the sentencing process functions once any defendant is convicted of a crime.’” Motten, ___ Mich App at ___, quoting Barnes, 502 Mich at 271. “Beck, like Lockridge, concerns an issue applicable during the sentencing process only.” Motten, ___ Mich App at ___.

“Michigan’s test for determining the retroactivity of judicial decisions considers: ‘(1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice.’” Motten, ___ Mich App at ___, quoting Barnes, 502 Mich at 273. Under the first prong, Beck supports a defendant’s presumption of innocence by making sure that a defendant is not held criminally responsible for acquitted conduct. Motten, ___ Mich App at ___. The rule in Beck is appropriate for prospective application because it is not relevant to a fact-finder’s decision about a defendant’s guilt. Motten, ___ Mich App at ___. Under the second prong, the Court noted that courts’ general reliance on previous caselaw “sanctioning the use of acquitted conduct at sentencing weighs against retroactive application of Beck.” Motten, ___ Mich App at ___. “Finally, under the third prong of Michigan’s test, the instances in which acquitted conduct was relied on at sentencing are presumably limited, such that retroactive application of Beck would have a lesser effect on the administration of justice than new rules affecting all sentences . . . or rules which would likely result in a large number of retrials.” Id. at ___. This, however, “does not outweigh the significance of the first two factors which weigh heavily in favor of the prospective-only application of Beck.” Id. at ___.

3.Determining Whether Resentencing Is Required

Where the defendant failed to establish that the trial court’s erroneous reference to acquitted conduct was “part of its sentencing rationale,” resentencing was not required. People v Beesley, 337 Mich App 50, 65 (2021) (trial court stated that a gun was used by the defendant, which was contrary to the jury’s verdict acquitting him of all charged firearm offenses). Specifically, “[u]nlike in Beck, the trial court sentenced defendant within the sentencing guidelines range,” “none of the OVs scored by the trial court involved the use of a gun,” and the trial court did not find by a preponderance of the evidence that the defendant committed one of the acquitted charges, but rather referenced “defendant’s use of a gun only in response to defense counsel’s argument that defendant had not committed a violent offense.” Beesley, 337 Mich App at 64-65.⁸ Accordingly, “the trial judge’s statement that a gun was used in this case, without more, [did] not amount to a Beck violation requiring resentencing” where defendant failed to preserve the sentencing issue and could not establish prejudice under the plain error standard. Beesley, 337 Mich App at 65-66.

4.Conduct Contained in PSIR

“[A] sentencing court may review a PSIR containing information on acquitted conduct without violating Beck so long as the court does not rely on the acquitted conduct when sentencing the defendant.” People v Stokes, 333 Mich App 304, 311 (2020). The inclusion of information about acquitted conduct in a PSIR does not create a presumption that the sentencing court relied on acquitted conduct; rather, “[t]here must be some evidence in the record that the sentencing court relied on such information to warrant finding a Beck violation.” Id. at 311-312 (noting that the acquitted conduct referenced in the PSIR was about a different and separate case and “the trial court did not refer to any acquitted conduct” nor did it “intimate that such conduct influenced its sentencing decisions”).⁹

However, when the jury has made no findings on charged conduct, or when uncharged conduct is at issue, a court may consider whether the defendant “engaged in that conduct using the preponderance of the evidence standard.” People v Johnson, ___ Mich App ___, ___ (2024) quoting People v Beck, 504 Mich 605, 626 (2019).

F.Preponderance of the Evidence Required

Facts used to score the offense variables must be in the record and supported by a preponderance of the evidence. People v Osantowski, 481 Mich 103, 111 (2008). “A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report, admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary examination or trial.” People v Allen, 331 Mich App 587, 594 (2020) (quotation marks and citation omitted), vacated in part on other grounds 507 Mich 856 (2021).¹⁰ Assertions made by the parties are not evidence and cannot support an offense variable score. People v Swift, 505 Mich 980 (2020) (vacating defendant’s sentence where OV 4 was scored solely on the basis of the prosecutor’s assertion and correction of the scoring error resulted in a lower sentencing range).