Sentencing; Scoring of 10 points for OV 4 (serious psychological injury to a victim); Scoring of 25 points for OV 13; MCL 777.43(1)(c) (continuing pattern of criminal behavior)

The court held that because neither OV 4 nor OV 13 was scored in error, defendant was not entitled to resentencing. Thus, his sentence to concurrent prison terms of 4 to 10 years for bank robbery, and 10 to 20 years for armed robbery, with credit for 191 days served, were affirmed. As to OV 4, the court noted that at the preliminary exam, S “testified that, as a result of the incident, she was scared, very frightened, and afraid of being shot. Defense counsel asked her whether she had, since the time of the bank robbery, ‘sought any counseling of any sort,’ to which [S] responded, ‘Yes.’” Defendant argued that S “did not explicitly testify that her counseling was related to the bank robbery.” But the trial court’s determination that “the counseling was related to the bank robbery was a reasonable and appropriate inference in light of the context of the questioning. The trial court’s factual findings were supported by a preponderance of the evidence and were not clearly erroneous.” As to OV 13, defendant argued that, “because his convictions for armed robbery and bank robbery arose from a single criminal act, and because his only other felonious criminal activity against a person in the previous 5 years was one count of unarmed robbery, the trial court erred by determining that 25 points could be assessed under MCL 777.43(1)(c).” He was mistaken. “MCL 777.43(1)(c) requires that the pattern of felonious criminal activity involve ‘3 or more crimes against a person’; it does not require that each of those crimes against a person arise from a separate criminal act.” Both felonies here are crimes against a person. “Defendant undisputedly committed ‘more than one felonious act’ during the 5 year-period that encompasses the sentencing offense, having committed a total of four felonies in three separate felonious acts: one felony for the act in 2016, one felony for the act in March 2018, and two felonies for the act in June 2019.” The court held that this “pattern of felonious activity involved three crimes against a person: one unarmed robbery, one armed robbery, and one bank robbery.” The plain language of MCL 777.43(1)(c) requires no more. The court declined “defendant’s invitation to read into the statute a requirement that a defendant have committed three or more separate criminal acts in addition to three or more crimes against a person.” It concluded that such “a judicial gloss on statutory language is neither required nor permitted.”