Sentencing; Scoring of OV 19; MCL 777.49(a); People v Dixon; Distinguishing People v Dickinson & People v Carpenter

In an order in lieu of granting leave to appeal, the court vacated the Court of Appeals judgment (see eJournal # 80720 in the 12/20/23 edition) and remanded the case to the trial court for further briefing, a hearing if necessary, and an analysis of whether OV 19 was properly scored. It held that the “trial court failed to adequately explain its decision to assign 25 points under OV 19.” During the intake process at the county jail after his arrest, “an officer noticed a small baggie fall out of defendant’s pants. The baggie contained a crystal-like substance” that tested positive for meth. The court has “instructed that context is critical to” the OV 19 analysis so that this OV “does not become ‘boundless’ in practice.” In Dixon, it held “that the trial court improperly assessed 25 points under OV 19 for mere possession of a cell phone in a prison bathroom because the ‘context’ provided no facts establishing that ‘the defendant’s conduct, in fact, threatened the security of the institution.’” The trial court here applied Dickinson and the Court of Appeals also found Carpenter supportive. The court found neither case “to be all that illuminating” here. It noted that unlike “this case, neither of those cases involved mere possession of a controlled substance on an arrestee’s person during jail intake; rather, both cases hinged on far more culpable conduct beyond intake and ‘beyond the drug possession—drug smuggling and assault—to justify a 25-point score.’” Further, those cases did not “involve the more controlled jail-intake process, which exists in large part to identify the very contraband at issue and prevent its transportation to more vulnerable areas of the penal institution.” Thus, they were inapt here. The court concluded that adopting “the reasoning of the trial court and Court of Appeals in this case would morph OV 19 into the ‘boundless’ OV that we rejected in Dixon, giving the go-ahead to a 25-point assessment whenever an arrestee incidentally possesses a controlled substance—even, say, pain medication or medical marihuana—at the time of arrest and intake.” Given that nothing in MCL 777.49(a)’s plain text “supports such a categorical rule, we decline to craft one today.” It also declined “to categorically foreclose an assessment of 25 points under OV 19 for intake-related drug possession.” The court rejected “defendant’s argument that a jail’s intake area is not part of a ‘penal institution’ for purposes of MCL 777.49(a).” But it found that “important context was overlooked” in this case. The trial court “failed to make any specific findings regarding how defendant’s conduct actually threatened the” jail’s security.

Dissenting, Justice Bernstein (joined by Justice Zahra) agreed with the majority that neither Dickinson nor Carpenter was “entirely on point, given” the additional, more serious conduct of those defendants. He also agreed “that a jail’s intake area is part of a ‘penal institution’ for purposes of MCL 777.49(a).” But he disagreed with the majority’s “ultimate conclusion about the scoring of OV 19.”