Sentencing; Scoring of OV 1; MCL 777.31(1)(c); People v Brown; Consideration of acquitted conduct; People v Beck; Proportionality of a within-guidelines sentence; Consideration of defendant’s youth; People v Eads; Unusual circumstance to overcome the presumption of proportionality; People v Piotrowski; Consecutive sentencing

Finding no factual basis for the trial court’s scoring of 15 points for OV 1 on remand, the court again vacated defendant’s sentences for first-degree home invasion and conspiracy to commit it and again remanded for resentencing. But it concluded he did “not overcome the presumption that his within-guidelines sentence” for his armed robbery conviction was proportionate. Thus, it affirmed his 180 to 300-month armed robbery sentence. This appeal followed a second remand for resentencing. Defendant was acquitted of other offenses, and in prior appeals the court “vacated both the original sentence and the sentence imposed after the first remand because the trial court impermissibly considered acquitted conduct.” In this appeal, it concluded the trial court’s findings in scoring OV 1 fell short of its prior “directive to identify whether a specific fact or circumstance was relevant to both the acquitted and convicted charges such that the fact or circumstance could properly support points for OV 1. Although the [trial] court acknowledged that it could not rely on [victim-Albert’s] death under Beck and appeared to apply Brown in concluding that ‘the overlap and the relevant conduct’ supported an assessment of 15 points, it failed to articulate what specific overlapping conduct justified that assessment.” Given the court’s prior “holding that ‘defendant simply cannot be held criminally responsible for [Albert’s] death in any way, including at sentencing,’ . . . and the [trial] court’s own finding that no record evidence established that defendant possessed a weapon,” the court could not “discern the factual basis for the 15-point score.” But as to his armed robbery sentence, defendant did not identify any “unusual circumstances rebutting the proportionality presumption.” The court noted that his “lack of criminal history was accounted for in the scoring of the” PRVs. He did not assert “the trial court considered acquitted conduct” in scoring the guidelines for this conviction, or “explain how his acquittals render his within-guidelines sentence disproportionate.” He was 17 at the time of the crimes, and he contended his sentence was “disproportionate because the trial court failed to consider his youth and its attendant circumstances as mitigating factors at sentencing.” But the court held in Piotrowski that the defendant’s age (17 at the time of the crime) did not constitute “an unusual circumstance sufficient to overcome the presumption of proportionality.”