2.26OV 13—Continuing Pattern of Criminal Behavior

A.Scoring

OV 13 is scored for all felony offenses subject to the statutory sentencing guidelines. MCL 777.22.

Step 1: Determine which statements addressed by OV 13 apply to the circumstances of the offense. MCL 777.43(1).

Step 2: Assign the point value indicated by the applicable statement having the highest number of points. MCL 777.43(1).

B.Issues

1.Application of McGraw Rule

“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). MCL 777.43 specifically authorizes the consideration of facts outside the sentencing offense; accordingly, the McGraw rule does not apply to OV 13. See, e.g., MCL 777.43(2)(a) (including all crimes within a 5-year period).

See Section 2.13(A) for a general discussion of the McGraw rule.

2.Scoring Both OV 12 and OV 13

“[A]ll conduct that can be scored under OV 12 must be scored under that OV before proceeding to score OV 13.” People v Bemer, 286 Mich App 26, 28 (2009). Conduct that is properly scored under OV 12 may not be omitted from OV 12 simply because scoring the conduct under OV 13 would yield a higher OV total. Id. at 28. OV 12 is discussed in Section 2.25.

3.Required Proofs for Scoring OV 13

“Before any alleged crimes may be used to score OV 13, the prosecution must prove by a preponderance of the evidence that the crimes actually took place, that the defendant committed them, that they are properly classified as felony ‘crimes against a person,’ MCL 777.43(1)(c), and that they occurred ‘within a 5-year period’ of the sentencing offense, MCL 777.43(2)(a).” People v Nelson, 502 Mich 934, 935 (2018) (remanding for resentencing where “[t]he court assigned 25 points to [OV 13], MCL 777.43, based upon charges that were dismissed in accordance with the plea agreement, but the record provide[d] no evidence to support the conclusion that the defendant committed a third crime against a person”). See also People v McFarlane, 325 Mich App 507, 537-538 (2018) (remanding for “resentencing with zero points assessed under OV 13” where the defendant’s presentence investigation report noted only one prior felony offense in addition to the present felony offense within the five-year period and “[t]he trial court did not make any specific findings with regard to a third felony offense, so it [was] unclear how it arrived at the score of 25 points for this OV,” and holding that “[o]n this record, the trial court clearly erred to the extent that it found that defendant had committed three felony offenses against a person within the past five years”).

Ten points were properly assessed under OV 13 where the PSIR indicated that “defendant committed the sentencing offense in December 2016, had been convicted of felony breaking and entering twice in December 2014, and convicted of the felony of attempted unlawful driving away of an automobile in June 2014.” People v Muniz, 343 Mich App 437, 453-454 (2022) (holding “the prerequisite three prior felony convictions, including the sentencing offense, within five years of the sentencing offense, are matters of record requiring assessment of 10 points for OV 13”). The Court rejected the defendant’s argument that his prior felony convictions “established no ‘pattern of felonious activity’ because the earlier convictions were for crimes against property, as opposed to the instant crime against a person” since “[t]he plain language of MCL 777.43(1)(d) . . . specifies assessment of points for ‘felonious criminal activity’ consisting of ‘crimes against a person or property[.]’” Muniz, 343 Mich App at 454.

4.Five-Year Period

The five-year period to which OV 13 refers must encompass the sentencing offense. People v Francisco, 474 Mich 82, 86-87 (2006). In Francisco, the trial court scored OV 13 at 25 points for the defendant’s three previous felonies that occurred in 1986, even though the offense for which the defendant was being sentenced occurred in 2003. Id. at 88. Based on the plain language of MCL 777.43, the Francisco Court explained:

“[I]n order for the sentencing offense to constitute a part of the pattern, it must be encompassed by the same five-year period as the other crimes constituting the pattern.

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“Because MCL 777.43(2)(a) states that the sentencing offense ‘shall’ be included in the five-year period, the sentencing offense must be included in the five-year period. Therefore, MCL 777.43(2)(a) does preclude consideration of a five-year period that does not include the sentencing offense.” Francisco, 474 Mich at 87.

Similarly, in People v Nelson, 491 Mich 869, 870 (2012), the Court reversed the judgment of the Court of Appeals with respect to the scoring of OV 13 “for the reasons stated in the Court of Appeals dissenting opinion[.]” The dissenting Court of Appeals opinion cited Francisco, 474 Mich at 86-87, and concluded that in order to score 25 points under OV 13, the sentencing offense must also be a crime against a person; accordingly, where the defendant was convicted of a crime involving a controlled substance, 25 points could not be assessed under OV 13 because “the crime for which he was convicted could not have been part of a pattern of crimes against persons.” People v Nelson, unpublished per curiam opinion of the Court of Appeals, issued July 19, 2011 (Docket No. 296932) (Shapiro, J., concurring in part and dissenting in part), p 1-2.

In People v Furlong, 509 Mich 1030 (2022), the Court held that “based on the reasoning of [People v Nelson, 491 Mich 869 (2012)], 50 points may only be assigned to OV 13 if the sentencing offense is first-degree criminal sexual conduct involving the penetration of a victim under the age of 13 and is part of a pattern of other sexual penetrations of a victim under the age of 13.” Accordingly, “50 points should not have been assigned to OV 13” where the sentencing offense was violation of MCL 750.520b(1)(b) (victim at least 13 but less than 16 and defendant member of the same household) because the offense “did not involve sexual penetration of a person less than 13 years of age[.]” Furlong, 509 Mich at 1030.

5.Pending or Dismissed Charges and Acquittals

“[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). Additionally, in People v Johnson, ___ Mich App ___, ___ (2024), the Court noted that Beck does not apply to hung juries—cases in which a jury has made no findings regarding the conduct at issue. See Section 2.13(E).

In finding a pattern of felonious criminal activity, the trial court properly relied on a witness’s “testimony [that] was adequate to show, at least by a preponderance of the evidence, that defendant committed fourth-degree criminal sexual conduct (CSC-IV) against her[.]” People v Carlson, 332 Mich App 663, 670 (2020) (the testimony was admitted as other-acts evidence and defendant was never charged in connection to the conduct). Although CSC-IV is classified as a two-year misdemeanor in the Michigan Penal Code, it was properly considered felonious criminal activity for purposes of scoring OV 13 because “the sentencing guidelines are part of the Code of Criminal Procedure,” which “defines ‘felony’ for purposes of that act as ‘a violation of a penal law of this state for which the offender, upon conviction, may be punished by imprisonment for more than 1 year or an offense expressly designated by law to be a felony.’” Id. at 670-671, quoting MCL 761.1(f).

“[A] court may consider [a] charge[] against a defendant [that was] dismissed as a result of a plea agreement in scoring OV 13.” People v Nix, 301 Mich App 195, 205 (2013). Moreover, a charge dismissed as a result of a plea agreement may be considered in assessing 25 points under MCL 777.43(1)(c), even if the plea agreement resulted in an “ultimate conviction . . . for a crime that is not a crime against a person.” Nix, 301 Mich App at 203-206 (where the evidence supported the trial court’s “determin[ation] that defendant had committed an act of felonious assault [(a crime against a person)] three days before the sentencing offenses,” the charged felonious assault was properly considered in assessing 25 points for OV 13, even though the defendant ultimately pleaded guilty of a different offense (a crime against public safety) in connection with the incident).¹

“[T]he trial court [properly] considered a 2008 charge of bank robbery, which was dismissed, as the third offense to support [a] 10-point score for OV 13” in sentencing the defendant for a 2010 robbery at the same bank. People v Earl, 297 Mich App 104, 106, 110-111 (2012) (“[a]lthough the 2008 case was dismissed in the district court, there was no indication at sentencing that the 2008 allegation was dismissed for want of probable cause,” and “[i]n light of the unchallenged evidence presented at sentencing regarding the 2008 bank robbery offense, there was enough evidence for the trial court to score 10 points for OV 13”).

The trial court properly scored 25 points for OV 13 where the defendant was convicted of two felony offenses against a person and had two CSC-I charges pending at the time he was sentenced. People v Wilkens, 267 Mich App 728, 743-744 (2005).

“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.” People v Boukhatmi, ___ Mich App ___, ___ (2024). “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 ___.

6.Applicable Crime Categories

“[T]he six named offense category designations used in MCL 777.5 and [MCL] 777.11 through [MCL] 777.19 apply to the scoring of offense variables and, therefore, a felony designated as a ‘crime against public safety’ may not be used to establish a ‘pattern of felonious criminal activity involving 3 or more crimes against a person,’ MCL 777.43(1)(c), for purposes of scoring OV 13.” People v Bonilla-Machado, 489 Mich 412, 416 (2011). In Bonilla-Machado, the defendant was convicted of two counts of assaulting a prison employee, an offense that is designated under MCL 777.16j as a crime against public safety. Bonilla-Machado, 489 Mich at 417, 424-425. The defendant had two prior convictions for offenses designated as crimes against a person and one prior conviction for an offense designated as a crime against public safety. Id. at 425 n 20. The trial court assessed 10 points for OV 13 under MCL 777.43(1)(d) (“[t]he offense was part of a pattern of felonious criminal activity involving a combination of 3 or more crimes against a person or property”). Bonilla-Machado, 489 Mich at 425. The Court of Appeals increased the defendant’s OV 13 score to 25 points under MCL 777.43(1)(c) (“[t]he offense was part of a pattern of felonious criminal activity involving 3 or more crimes against a person”), explaining that “[a]lthough MCL 777.16j indicates that assault of a prison guard is a crime against public safety, this offense is also a crime against a person because, obviously, a prison guard is a person.” Bonilla-Machado, 489 Mich at 425 (quotation marks and citation omitted).

The Michigan Supreme Court, noting that “MCL 777.21(1)(a) explicitly instructs a court to first ‘[f]ind the offense category for the offense from’ MCL 777.11 through [MCL] 777.19 and then ‘determine the offense variables to be scored for that offense category,’” concluded that “[t]he use of the named offense categories throughout the sentencing guidelines chapter indicates legislative intent to have the offense categories applied in a uniform manner, including when they are applied in the offense variable statutes.” Bonilla-Machado, 489 Mich at 426-427, 429 (holding the trial court and Court of Appeals erred in scoring OV 13 because “the combination of designated crimes needed to assess 5 to 50 points for OV 13 [was] not present, . . . the only allowable score under the categories designated in the statute [was] zero points”). See also People v Pearson, 490 Mich 984, 984-985 (2012) (because “conspiracy is classified as a ‘crime against public safety’” under MCL 777.18, conspiracy to commit armed robbery may not be considered when scoring OV 13, even though armed robbery is classified under MCL 777.16y as a “crime against a person”; MCL 777.21(4) “does not allow the offense category underlying the conspiracy to dictate the offense category of the conspiracy itself for purposes of scoring OV 13”).

7.Attempt Convictions

“MCL 777.19 does not expressly designate the defendant’s attempt convictions to be felonies.” People v Jackson, 504 Mich 929, 930 (2019) (cleaned up).² Further, OV 13 “does not expressly incorporate the sentencing guidelines’ offense classifications” listed in MCL 777.11 through MCL 777.19; instead, “OV 13 is scored for ‘felonious criminal activity’—that is, prior conduct that meets the definition of a felony, ‘regardless of whether the offense resulted in a conviction.’” Jackson, 504 Mich at 930, quoting MCL 777.43(2)(a). Accordingly, the Court of Appeals erred when it held that “MCL 777.19(2) specifically defines what constitutes felonious activity involving attempted offenses for purposes of sentencing.” People v Jackson, 320 Mich App 514, 522 n 2 (2017), rev’d in part 504 Mich 929 (2019).³ The Supreme Court clarified that because attempted resisting and obstructing is “not punishable with imprisonment for more than one year,” “[a] prior conviction for attempted resisting and obstructing does not, on its face, establish felonious criminal activity” for purposes of OV 13. Jackson, 504 Mich at 930 (remanding for the sentencing court to “determine in the first instance whether the defendant’s conduct in attempting to violate MCL 750.81d or MCL 750.479, when combined with the sentencing offense, establishes ‘a pattern of felonious criminal activity involving 3 or more crimes against a person for purposes of scoring OV 13’”) (citations omitted).

8.Juvenile Adjudications

The court may include juvenile adjudications when scoring OV 13. People v Harverson, 291 Mich App 171, 180 (2010). “[T]he plain language of the statute does not require a criminal conviction to score 10 points, but only requires ‘criminal activity.’ A juvenile adjudication clearly constitutes criminal activity because ‘it amounts to a violation of a criminal statute, even though that violation is not resolved in a “criminal proceeding.”’” Id. at 180, quoting People v Luckett, 485 Mich 1076, 1076-1077 (2010) (Young, J., concurring).

9.Multiple Offenses Arising From a Single Criminal Incident

“[M]ultiple concurrent offenses arising from the same incident are properly used in scoring OV 13[.]” People v Gibbs, 299 Mich App 473, 487-488 (2013) (“while [the defendant’s convictions of two counts of armed robbery and one count of unarmed robbery] arose out of a single criminal episode, [the defendant] committed three separate acts against each of the three victims and these three distinct crimes constituted a pattern of criminal activity” for which 25 points were properly scored).

However, “a single felonious act cannot constitute a [continuing] pattern [of criminal behavior]” for purposes of OV 13; “[MCL 777.43] contemplates that there must be more than one felonious event.” People v Carll, 322 Mich App 690, 704-705 (2018) (noting that the defendant in Gibbs, 299 Mich App at 488, “committed three separate acts against each of the three victims and these three distinct crimes constituted a pattern of criminal activity”) (quotation marks omitted). Accordingly, the court should have scored OV 13 at zero where the defendant “had no prior record and all four convictions [(one count of reckless driving causing death and three counts of reckless driving causing serious impairment of a bodily function)] arose from a single act” of reckless driving. Carll, 322 Mich App at 693, 704-706 (remanding for resentencing because “although there were multiple victims, nothing was presented to show that he committed separate acts against each individual victim in the course of the reckless driving”).

10.Claim of Lockridge Error

Where the “defendant had pleaded guilty . . . to two charges of home invasion related to offenses committed [before the sentencing offense] . . . [and d]efense counsel stipulated the existence of these convictions at sentencing, . . . the facts underlying the scoring of OV 13 [based on these offenses as part of a pattern of felonious activity] were admitted by defendant, and the points scored for OV 13 [did not need to] be subtracted in considering defendant’s total OV score under [People v Lockridge, 498 Mich 358 (2015)].” People v Jackson (On Reconsideration), 313 Mich App 409, 436 (2015). See also Section 2.12(B)(4) for a discussion of judicial fact-finding after Lockridge.