Sentencing; Scoring of OV 3 (death occurred during a commission of a crime and homicide is not the sentencing offense); MCL 777.33(1)(a) & (2)(b); Principle that a trial court can only consider the sentencing offense when scoring OV 3; People v McGraw; Principle that the offense of delivery of a controlled substance is complete when the delivery is complete; Resentencing; People v Francisco

Holding that the trial court erred by scoring OV 3 for a fatal overdose that followed a delivery, the court vacated defendant’s sentence and remanded for resentencing. He pled guilty to delivery of a controlled substance (heroin) less than 50 grams in exchange for dismissal of a possession charge and a delivery-causing-death charge. In sentencing him, the trial court scored OV 3 at 100 points on the basis of the dismissed delivery-causing-death charge before sentencing him near the top of the guidelines range. On appeal, the court agreed with defendant that the trial court’s erroneous scoring of OV 3 necessitated resentencing. "When defendant placed the heroin in the victim’s mailbox, the crime of delivery was complete. Anything occurring after, including [the victim’s] fatal overdose, should not have been considered by the trial court for scoring OV 3.” The court did “not disagree with the prosecution’s arguments that it is more likely than not that but for” this delivery, the victim’s death would not have occurred.” But its issue here was “not one with causation so much as . . . with the temporal limitations under the law.” In other words, even if the victim “overdosed only a few hours later, rather than the following day, the crime of delivery was still complete before the overdose occurred.” Because scoring OV 3 at 0 points “lowers his minimum guidelines sentencing range to 0-16 months’ punishment under the sentencing grid for Class D offenses,” he is entitled to resentencing.