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People v. Carter

Supreme Court of Michigan

May 7, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ALONZO CARTER, Defendant-Appellant.

          Argued on application for leave to appeal March 7, 2019.

          Bridget M. McCormack, Stephen J. Markman, Brian K. Zahra, Chief Justice Pro Tem: David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh

         SYLLABUS

         Alonzo Carter was convicted following a jury trial in the Wayne Circuit Court, Vonda R. Evans, J., of assault with intent to do great bodily harm (AWIGBH), MCL 750.84; felon in possession of a firearm (felon-in-possession), MCL 750.224f; intentional discharge of a firearm at a dwelling, MCL 750.234b; felonious assault, MCL 750.82; and carrying or possessing a firearm when committing or attempting to commit a felony (felony-firearm) second offense, MCL 750.227b. In January 2015, defendant was involved in a verbal altercation with Lawrence Sewell outside Sewell's apartment. Later that evening, defendant returned to Sewell's apartment and attempted to lure Sewell to the door by impersonating a maintenance worker. Sewell looked through the door's peephole and saw defendant waiting outside wearing a ski mask and holding a firearm. Sewell did not allow defendant to enter, and defendant fired three shots through the apartment door at chest level. Two shots skipped off the apartment floor and through a window, while another punctured an air mattress on which an infant child slept. None of the apartment's occupants was shot. Defendant was convicted as a fourth-offense habitual offender, and the trial court sentenced him to concurrent prison terms of 5 to 10 years for AWIGBH, 1 to 5 years for felon-in-possession, 1 to 10 years for intentional discharge of a firearm at a dwelling, and 1 to 4 years for felonious assault, all to be served consecutively to a two-year prison sentence (later corrected to a five-year prison sentence) for felony-firearm. Defendant moved to remand in the Court of Appeals, objecting to the assessment of points under Prior Record Variable (PRV) 1 (prior high severity felony convictions), MCL 777.51; Offense Variable (OV) 4 (psychological injury to the victim), MCL 777.34; and OV 12 (contemporaneous felonious acts), MCL 777.42. The Court of Appeals denied the motion. Defendant appealed in the Court of Appeals, contesting the trial court's scoring of the three sentencing variables. The prosecution conceded error with regard to the points assessed under OV 4 and PRV 1, but the prosecution defended the 10 points assessed under OV 12. In an unpublished per curiam opinion issued on June 27, 2017 (Docket No. 331142), the Court of Appeals, Jansen, P.J., and Murphy and Borrello, JJ., affirmed the scoring of OV 12, reasoning that each pull of the trigger was a separate act and that because only one act was needed to convict defendant, the other two acts of pulling the trigger constituted contemporaneous felonious criminal acts. Because removal of the points that were incorrectly assessed under OV 4 and PRV 1 did not affect the applicable guidelines minimum sentence range, the Court of Appeals did not order resentencing. Defendant sought leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 1089 (2018).

         In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to appeal, held:

         OV 12 is governed by MCL 777.42, which states that it is appropriate to assess an offender 10 points when two contemporaneous felonious criminal acts involving crimes against a person were committed. MCL 777.42(2)(a) provides that when assessing points under OV 12, a felonious criminal act is contemporaneous if both of the following circumstances exist: (i) the act occurred within 24 hours of the sentencing offense, and (ii) the act has not and will not result in a separate conviction. Because the Legislature used the word "act" in one portion of MCL 777.42(2)(a)(i) and the phrase "sentencing offense" later in the same sentence, the Legislature intended to draw a distinction between the two; what matters is whether the "sentencing offense" can be separated from other distinct "acts." In the context of OVs, "sentencing offense" is defined as the crime of which the defendant has been convicted and for which he or she is being sentenced. In this case, the sentencing offense was AWIGBH, and a finding that two of the gunshots were not part of the sentencing offense could not be supported by the evidence because the record showed that the prosecution relied on all three gunshots as evidence of defendant's intent to inflict great bodily harm. Those same three gunshots could not then be used to establish separate "acts" that occurred within 24 hours of the "sentencing offense" under MCL 777.42(2)(a)(i). Accordingly, it was inappropriate for the Court of Appeals to distinguish two gunshots from the conduct constituting the sentencing offense. Importantly, this holding was limited to the facts of this case; circumstances might exist under which multiple gunshots may constitute separate "acts" that are distinguishable from the "sentencing offense," but this case did not present those circumstances. Finally, reduction of defendant's variable score to account for the improper assessment of points under OV 12 altered the recommended guidelines minimum sentence range; although defendant's sentence fell within the proper guidelines range, defendant was entitled to resentencing under accurately scored offense variables because the scoring error was relied upon by the trial court and the issue was properly preserved.

         Court of Appeals opinion reversed to the extent that it upheld the assessment of points under OV 12, trial court's judgment of sentence vacated, and case remanded to the trial court for resentencing on the basis of accurately scored offense variables.

          OPINION

          PER CURIAM.

         Defendant, Alonzo Carter, fired three shots through the door of an apartment he knew to be occupied. He was convicted by a jury of, among other things, assault with intent to do great bodily harm (AWIGBH).[1] At issue in this case is whether each separate pull of the trigger constitutes a separate "act" under Offense Variable (OV) 12 (contemporaneous felonious acts).[2] Because the evidence does not support the conclusion that the jury considered only one shot when deliberating over the elements of AWIGBH, we hold that it was inappropriate to assess defendant 10 points under OV 12. Further, because reducing defendant's OV score to rectify this error would reduce the applicable guidelines range, resentencing is required.[3]

         In January 2015, defendant lived in the same apartment building as Lawrence Sewell. A young woman and her infant child lived with Sewell as well. On January 11, 2015, defendant and Sewell were involved in a verbal altercation outside Sewell's apartment, but it did not escalate any further at that time. That evening, however, defendant returned to Sewell's apartment and attempted to lure Sewell to the door by impersonating a maintenance worker. Sewell looked through the door's peephole and saw defendant waiting outside wearing a ski mask and holding a firearm. Sewell did not allow defendant to enter, and defendant fired three shots through the apartment door at chest level. Two shots skipped off the apartment floor and through a window, while another punctured an air mattress on which the infant child slept. None of the apartment's occupants was shot.

         Defendant was identified as the shooter and charged as a fourth-offense habitual offender with assault with intent to murder (AWIM), [4] AWIGBH, [5] felon in possession of a firearm (felon-in-possession), [6] intentional discharge of a firearm at a dwelling, [7] felonious assault, [8] and carrying or possessing a firearm when committing or attempting to commit a felony (felony-firearm) second offense.[9] A jury acquitted defendant of AWIM but convicted him of all other charges.

         At sentencing, defense counsel did not make any objections or request corrections to the scoring of the sentencing guidelines. Accordingly, the trial court sentenced defendant to concurrent prison terms of 5 to 10 years for AWIGBH, 1 to 5 years for felon-in-possession, 1 to 10 years for intentional discharge of a firearm at a dwelling, and 1 to 4 years for felonious assault, all to be served consecutively to a two-year prison sentence for felony-firearm.[10]

         Defendant filed a motion to remand in the Court of Appeals, objecting to the assessment of points under Prior Record Variable (PRV) 1 (prior high severity felony convictions), [11] OV 4 (psychological injury to the victim), [12] and OV 12. The motion was denied. In his brief on appeal, defendant continued to contest the trial court's scoring under these three sentencing variables. The prosecution conceded error with regard to the points assessed under OV 4 and also conceded that PRV 1 should have been scored at 50 points, rather than the 75 points assessed in the trial court. Nonetheless, the prosecution continued to defend the 10 points assessed under OV 12.

         In an unpublished per curiam opinion, the Court of Appeals affirmed the scoring of OV 12, reasoning that "[e]ach time defendant pulled the trigger was a separate act, and only one [act] was needed to convict him. Thus, the other two acts of pulling the trigger would be contemporaneous felonious criminal act[s] . . . ."[13] Because removal of the points that were incorrectly assessed under OV 4 and PRV 1 did not affect the applicable guidelines range, the panel did not order resentencing.[14] Defendant now seeks leave to appeal in this Court, once again challenging the 10-point assessment under OV 12 and seeking resentencing. We granted oral argument to determine whether to grant the application or take other action.[15]

         A trial court's factual determinations at sentencing are reviewed for clear error and need only be supported by a preponderance of the evidence.[16] Whether the facts, as found, are adequate to warrant the assessment of points under the pertinent OVs and PRVs is a question of statutory interpretation, which this Court reviews de novo.[17]

         OV 12 is governed by MCL 777.42, which states that it is appropriate to assess an offender 10 points when "[t]wo contemporaneous felonious criminal acts involving crimes against a person were committed."[18] In assessing any points under this particular variable, the pertinent portion of MCL 777.42 provides:

(2) All of the following apply to scoring offense variable 12:
(a) A felonious criminal act is contemporaneous if both of the following circumstances exist:
(i) The act occurred within 24 hours of the sentencing offense.
(ii) The act has not and will not result in a separate ...

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