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People v. Abbott

Court of Appeals of Michigan

December 17, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
DERRIN TOREY ABBOTT, Defendant-Appellant.

          Wayne Circuit Court LC No. 16-006549-01-FC

         ON REMAND

          Before: Sawyer, P.J., and Murray and Shapiro, JJ.

          Per Curiam.

         This case is before us on remand from the Michigan Supreme Court to address (1) whether defendant committed three or more felonious criminal acts within 24 hours of his sentencing offense to justify the trial court's assessment of 10 points for offense variable 12 (OV 12), MCL 777.42, and (2) "whether the predicate offenses for the defendant's conviction of conducting a criminal enterprise constitute 'the sentencing offense' or can be considered as contemporaneous felonious criminal acts for the purpose of scoring OV 12." People v Abbott, 504 Mich. 851, 851; 927 N.W.2d 704 (2019).

         In answering these questions, we conclude that (1) the "sentencing offense" is the criminal enterprise conviction, (2) the 21 dates listed on the felony information are the predicate offenses, which constitute the sentencing offense, (3) they cannot be considered as contemporaneous felonious criminal acts for the purpose of scoring OV 12, and (4) defendant did not commit three or more contemporaneous felonious criminal acts within 24 hours of the sentencing offense to justify the assessment of 10 points for OV 12. Accordingly, we vacate defendant's sentence for conducting a criminal enterprise, and remand for resentencing.

         I. FACTS AND PROCEDURAL HISTORY

         Defendant was involved in two cases consolidated for trial, only one of which, lower court no. 16-006549-01-FC, is at issue on remand.[1] In that case, defendant was charged with, and convicted in a jury trial of, conducting a criminal enterprise, MCL 750.159i(1), five counts of breaking and entering a building with intent to commit larceny (breaking and entering), MCL 750.110, five counts of safe breaking, MCL 750.531, and five counts of possession of burglar's tools, MCL 750.116. For the offense of conducting a criminal enterprise, the information listed 21 dates, from June 13, 2015, to March 21, 2016, on which defendant and his codefendant committed or conspired to commit the crimes of breaking and entering and safe breaking for financial gain. The five incidents for which defendant was separately charged with breaking and entering, safe breaking, and possession of burglar's tools, were included in those 21 dates.

         Before sentencing, the prosecution filed a sentencing memorandum, asserting that the trial court should assess 10 points for OV 12 because defendant engaged in three or more felonious acts contemporaneous with the sentencing offense of conducting a criminal enterprise. These included, according to the prosecution, acts of breaking and entering and safe breaking committed as part of the criminal enterprise, and acts of receiving and concealing stolen property, for which defendant was never charged nor convicted. Ultimately, the trial court assessed 10 points for OV 12, and sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 20 to 40 years' imprisonment for the conducting a criminal enterprise and safe breaking convictions, and 10 to 20 years' imprisonment for the breaking and entering and possession of burglar's tools convictions. In so doing, the trial court stated:

[T]he People have charged that the sentencing offense of conducting a criminal enterprise took place over a lengthy period of time, specifically, the conducting a criminal enterprise date range is identified in the Information and was before the jury from June 13, 2015, through April 11, 2016. During that time, the People argue that the defendant conducted three contemporaneous felonious criminal acts as understood by Offense Variable 12, including at least two incidences of receiving/concealing stolen property as well as numerous separate offenses ranging from September 16th to the end of the year.
I've reviewed my notes. I do note that a number of these separate offenses were introduced during the trial. I do find that three or more contemporaneous felonious criminal acts based on the record here today were committed, therefore, Offense Variable 12 is properly scored at 10 points.

         Defendant appealed his convictions to this Court, but failed to challenge the scoring of OV 12, or raise any sentencing issues at all. We rejected the arguments defendant did raise, and affirmed his convictions. People v Abbott, unpublished per curiam opinion of the Court of Appeals, issued April 12, 2018 (Docket No. 336332), pp 1-9. Then, in his form application for leave to appeal to the Supreme Court, defendant listed prior record variables (PRV) 1, 2, and 7, and OVs 9, 12, 13, 14, and 16 as being challenged, but he only stated a general challenge to the OV scoring, making no argument as to any particular OV:

[t]here should be a resentence in this case because the evidence in scoring OV is incorrect, and my PRV scoring was incorrect base[d] on my PSI information. A sentencing court should consider all record evidence before it when calculating the guideline including the contents of the PSI report. The information before the sentencing court was materially false, and the court relied on the prosecutor['s] false evidence or information in imposing the sentence.

         After ordering the prosecution to file an answer on the scoring of OV 12, the Supreme Court remanded to this Court to ...


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