Sentencing; Whether each separate shot constituted a separate “act” for purposes of OV 12 (contemporaneous felony acts); MCL 777.42; MCL 777.42(2)(a)(i); People v. Light; Sentencing offense defined; People v. McGraw; Effect of the prosecution’s reliance on all three shots as evidence of defendant’s intent for purposes of the assault with intent to do great bodily harm less than murder (AWIGBH) offense; Whether resentencing was required; People v. Francisco; Judgment of sentence (JOS)

Given that the prosecution relied on all three gunshots to establish an element of the sentencing offense (AWIGBH), the court held that 10 points were erroneously scored for OV 12 on the basis that each separate pull of the trigger constituted a separate “act.” Further, because correcting this score changed defendant’s guidelines, resentencing was required. He fired three shots through the door of a residence he knew was occupied. He was sentenced to 5 to 10 years for his AWIGBH conviction, and lesser sentences for other crimes. The Court of Appeals affirmed, ruling as to OV 12 “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] . . . .’” Under Light, determining whether a defendant “engaged in multiple ‘acts’ for purposes of OV 12 does not depend on whether he or she could have been charged with other offenses for the same conduct. What matters, instead, is whether the ‘sentencing offense’ can be separated from other distinct ‘acts.’” The court defined sentencing offense in McGraw “as ‘the crime of which the defendant has been convicted and for which he or she is being sentenced.’” AWIGBH was the sentencing offense here. It was clear the prosecution relied on all three shots “as evidence of defendant’s intent to commit murder or inflict great bodily harm,” and thus, a finding that two were not part of the sentencing offense was not supported by the record. As a result, “it was inappropriate for the Court of Appeals to distinguish two gunshots from the conduct constituting the ‘sentencing offense.’” The court noted that it limited its holding to the facts of the case. It was not suggesting “that there can be no circumstances under which multiple gunshots may constitute separate ‘acts’ that are distinguishable from the ‘sentencing offense.’” But as all of the shots were used to establish the intent element of the sentencing offense here, they 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).” The court reversed the Court of Appeals’ opinion to the extent it upheld the scoring of OV 12, vacated the JOS, and remanded to the trial court for resentencing.