Part B: Scoring an Offender’s Offense Variables (OVs)

2.12Overview of Offense Variables

MCL 777.21 details the method by which an offender’s recommended minimum sentence range is determined using the offender’s prior record variable (PRV) and OV scores. There are 20 offense variables, some of which have been amended since the guidelines first went into effect. See MCL 777.31 to MCL 777.49a. Each OV consists of several statements to which a specific number of points is assigned; these statements quantify the specific offense characteristics addressed by each individual OV. Id.

Every OV is not scored for every offense. The offense category or “crime group” to which the sentencing offense belongs is “used to determine which of the OVs to score for each crime and how those OVs should be scored.” People v Bonilla-Machado, 489 Mich 412, 422 (2011) (citations omitted); see also MCL 777.21(1)(a); MCL 777.22. The total number of points assessed for all OVs scored for an offense constitutes the offender’s “OV level,” which is represented by the vertical axis on each sentencing grid.¹ MCL 777.21(1)(a). The offense category for every felony to which the sentencing guidelines apply is set out in MCL 777.11 through MCL 777.19.

The Legislature classified each offense to which the sentencing guidelines apply into one of six particular offense categories; therefore, an offense that is statutorily designated as a “crime against public safety” may not also be considered a “crime against a person” for purposes of scoring an OV. Bonilla-Machado, 489 Mich at 415-416, 425 (the Court of Appeals wrongly decided that assault of a prison guard, a crime against public safety according to its statutory designation in MCL 777.16j, “is also a crime against a person because, obviously, a prison guard is a person”). The Court further noted 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[.]’” Bonilla-Machado, 489 Mich at 426. “The 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.” Id. Accordingly, “a felony statutorily designated as a ‘crime against public safety’ may not be used to establish a pattern of felonious criminal activity involving three or more crimes against a person for purposes of scoring OV 13.” Id. at 430-431. 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”); People v Reynolds, 495 Mich 921, 921 (2014) (holding that because “[a] conspiracy conviction cannot be scored as a crime against a person,” the trial court erred in “consider[ing] the defendant’s conspiracy conviction to be a crime against a person” for purposes of scoring OV 12 and OV 13), citing Pearson, 490 Mich 984, and Bonilla-Machado, 489 Mich 412.