Sentencing; Scoring of 10 points for OVs 1 & 3; People v Chelmicki; People v Lampe; Distinguishing People v McGraw

Holding that the trial court did not err in scoring 10 points each for OVs 1 and 3, the court affirmed defendant’s sentences. He pled guilty to breaking and entering a building with intent to commit larceny and felonious assault. He was sentenced as a third-offense habitual offender to concurrent terms of 8 to 20 years for each breaking and entering conviction and 6 to 8 years for felonious assault. The court previously issued a peremptory order vacating the felonious assault sentence and remanding for resentencing in accordance with the two-thirds rule, but denied his application for leave to appeal in all other respects. The Supreme Court remanded for consideration as on leave granted with instructions to analyze whether the trial court correctly scored OVs 1 and 3. As to OV 1, the court rejected defendant’s argument “that the trial court improperly considered conduct outside of the sentencing offense because” he struck the felonious assault victim (V) with a vice grip "during a separate offense, not while breaking and entering.” He admitted at the plea hearing that he hit V “in the head with the vise grip at the yacht club. He further affirmed that he did so at the ‘same date and time’ that he broke into the boats and the shed. The vice grip qualified as a weapon for purposes of OV 1 because defendant used it ‘for attack.’” The trial court determined that “the breaking and entering was still ongoing when defendant hit [V] with the vise grip. Unlike in McGraw, where the defendant had already fled from the scene of the crime at the time the conduct in question occurred, . . . [V] encountered defendant while defendant was still on the yacht club property, loading property stolen from the yacht club’s shed into his van.” As to OV 3, the court noted that V had to go to the hospital and get stitches due to defendant striking him in the head with the vise grip. The trial court’s finding that he hit V while the breaking and entering was ongoing established “a causal link between the breaking and entering and [V’s] injury.” The court was not left with a definite and firm conviction that it was mistaken.