Sentencing; Scoring of OVs 1-3 in “multiple offender” cases; MCL 777.31(2)(b); MCL 777.32(2); MCL 777.33(2)(a); People v. Morson; People v. Johnston; Scoring of 15 points for OV 1; MCL 777.31(1)(c); Scoring of 5 points for OV 2; MCL 777.32(1)(d); Scoring of 25 points for OV 3; MCL 777.33(1)(c); Scoring of 10 points for OV 4; MCL 777.34(1)(a); People v. Armstrong; People v. Lockett; Scoring of 50 points for OV 7; MCL 777.37(1)(a); “Sadism” defined (MCL 777.37(3)); People v. Hunt; Whether resentencing was required; People v. Francisco; Restitution; People v. Grant; MCL 780.766(2); MCL 780.767(1); “Gives rise to”; People v. McKinley; “Cause in fact”; Skinner v. Square D Co.

[Unpublished opinion.] While the trial court properly concluded that this was a multiple offender case for the purposes of scoring OVs 1, 2, and 3, and did not err in scoring them, the court held that the trial court erred in scoring OVs 4 and 7, and that resentencing was required. It upheld the order requiring defendant to pay restitution jointly with his codefendants. Defendant pleaded guilty to armed robbery, first-degree home invasion, unlawful imprisonment, and felonious assault. He was sentenced to 14 years and 309 days to 40 years for the armed robbery conviction, 5 to 20 years for first-degree home invasion, 5 to 15 years for unlawful imprisonment, and 2 to 4 years for felonious assault. The trial court also ordered restitution in the amount of $10,612.20. The court rejected his claim that the trial court erred in assessing him points under OVs 1, 2, and 3 on the basis of codefendant-B’s use of a claw hammer as a stabbing weapon. It noted that “neither Morson nor Johnston held that the scored offenses must be the same between multiple offenders. Rather, Johnston held that codefendants must share common convictions.” Defendant and B shared “the common convictions of unlawful imprisonment and first-degree home invasion.” Further, the trial court did not err in scoring 15 points for OV 1, 5 points for OV 2, and 25 points for OV 3. However, as to OV 4, while the trial court found that the victim suffered a psychological injury on the basis of its personal observations of his state of agitation while he gave statements at other court appearances, the victim “did not give any statements in this case,” and his appearance was not part of the record. Thus, “the trial court clearly erred by finding that the victim suffered a serious psychological injury” because the record lacked any evidence on this point. It also erred in scoring 50 points for OV 7. While it was undisputed that B “engaged in sadistic conduct[,]” defendant “did not take part in the victim’s brutal beating. Unlike OVs 1, 2, and 3, there is no Legislative directive to assess all offenders equally under OV 7.” Rather, under Hunt, “‘only the defendant’s actual participation should be scored.’” This case was similar to Hunt. Affirmed in part, reversed in part, and remanded.