Sentencing; Scoring of OVs 1 & 2 (possession or use of a weapon during commission of the crime); MCL 777.31(2)(b) & 777.32(2); Applicability of People v Libbett; The aiding & abetting statute (MCL 767.39); Statutory interpretation; Entitlement to resentencing; People v Francisco

The court held that because there was “no contention that defendant possessed a weapon during the offense at issue, and because no other offender was assessed points for either” OV 1 or 2, both OVs should have been scored at 0. Thus, the trial court erred in scoring points for them. Further, defendant was entitled to resentencing because the resulting 20-point reduction in his OV score changed his minimum guidelines range. The court reversed the Court of Appeals judgment that upheld the trial court’s scoring of OV 1 at 15 points and OV 2 at 5 points, and remanded to the trial court for resentencing. Defendant was convicted of armed robbery for robbing a store with two accomplices. The court concluded that the plain language of MCL 777.31(2)(b) and “777.32(2) sets forth two conditions that must be satisfied before those provisions are triggered. The first condition is that the case is a ‘multiple offender case[].’ The second condition is that ‘1 offender is assessed points’ for possessing a weapon. Here, there were three offenders, which makes this a ‘multiple offender case,’ satisfying the first condition. However, defendant was the only person charged and convicted of armed robbery; no other offender has been charged or convicted, let alone assessed points for possessing a weapon.” Thus, the second condition was not met. “Since defendant was the only person arrested, convicted, and assessed points under OVs 1 and 2, points could only be assessed under OVs 1 and 2 if he had possessed and/or used the weapon himself. There is no contention that he did so. Therefore, no points should have been assessed under OV 1” or 2. While the prosecution cited Libbett, the court found that case “inapposite here, where the issue is not whether MCL 777.31(1) and” 777.31(2)(b) conflict but whether they were “even triggered under these facts.” The prosecution, the Court of Appeals, and the dissent also relied on MCL 767.39. But that statute “does not speak to the scoring of the OVs.” The court noted that ignoring the specific statute as to scoring “the OVs in favor of the general aiding-and-abetting statute would be contrary to this canon of statutory interpretation.” It also disagreed with the dissent’s application of that statute in this case.

Dissenting, Chief Justice Clement (joined by Justice Zahra) concluded that “a defendant must be assessed OV points if they aided and abetted the conduct that serves as the basis for scoring the OVs. Accordingly, even if a co-offender is not assessed points under an OV with a multiple-offender provision, rendering that multiple-offender provision inapplicable, the defendant must still be assessed points for that OV if the defendant aided and abetted conduct addressed by that OV.” Further, under the facts here, defendant aided and abetted the conduct at issue, so OVs 1 and 2 were properly scored.