Sentencing; Scoring of OV 12; MCL 777.42(1)(d) & (e); People v Light; Contemporaneous felonious criminal act; MCL 777.42(2)(a)(i) & (ii); People v Abbott; Reliance on acquitted conduct; People v Beck

The court held that remand was required for the trial court to articulate its reasons for scoring 5 points for OV 12. Defendant was convicted of OWI 3d and resisting arrest. The trial court originally sentenced her as a fourth habitual offender to concurrent prison terms of 58 months to 30 years for the former and 3 to 15 years for the latter. In a prior appeal, the court affirmed, but remanded for resentencing, finding the record did not establish she was a fourth offense habitual offender. On remand, the trial court found her habitual offender status was correct and imposed the same sentences it originally imposed. In the present appeal, she claimed the trial court erred by scoring 5 points for OV 12 because it relied on conduct for which she was acquitted. The court found remand was “necessary for the trial court to consider whether the facts” supported it. “As the prosecution concede[d], the conduct that formed the basis for either of defendant’s charges for resisting arrest could not be considered contemporaneous felonious criminal acts under OV 12. The resisting arrest charge for which she was convicted could not be considered because it resulted in a separate conviction, and the resisting arrest charge for which she was acquitted could not be considered because it was acquitted conduct.” As such, if the trial court scored 5 points for OV 12 by relying on the conduct underlying either of those charges, it erred by doing so. And if it did err, its error was not harmless. As such, the court could not “determine from the existing record why the trial court determined that OV 12 was appropriately assessed at five points. To do so, we would need to know which of defendant’s acts the trial court believed to constitute contemporaneous felonious criminal acts. This is a question of fact. And questions of fact are for the trial court.” Thus, remand to the trial court “is appropriate so that the trial court may either articulate its factual findings in support of the assessment of” 5 points for OV 12, or for resentencing under the corrected guidelines range. On remand, if the trial court finds that “no facts support an assessment of” 5 points for OV 12, it should vacate defendant’s sentence and resentence her under the corrected guidelines minimum sentence range. “On the other hand, if the trial court finds that there are facts supporting an assessment of” 5 points to OV 12, it should place those factual findings on the record to aid in appellate review. Remanded.