Sentencing; Scoring of OV 12 (contemporaneous felonious criminal acts); MCL 777.42(1)(b), (d), & (g); MCL 777.42(2)(a)(i)-(ii); People v Teike; Common-law obstruction of justice; Assaulting, resisting, or obstructing a police officer causing serious impairment (APO-CSI) (MCL 750.81d(3)); Assaulting, resisting, or obstructing a police officer (R&O)

The court held that the trial court erred in scoring OV 12 at 10 points because defendant’s “two dismissed R&O counts were subsumed into his obstruction conviction and” thus, did not constitute separate contemporaneous felonious criminal acts. He was charged with third-offense domestic violence; AWIM as to one officer (P); and three R&O counts, one for each officer. He later pled no contest to “second-offense domestic violence, APO-CSI as to [P], and common-law obstruction of justice” in exchange for dismissal of the other charges. He was sentenced as a second-offense habitual offender to 48 to 270 months for APO-CSI and otherwise to time served. On appeal, the court found Teike instructive. Here, in “setting forth the factual basis for the obstruction plea, the trial court found that defendant ‘chose to continue fleeing and resisting and obstructing the efforts of’” Officer H and other officers on the scene. Thus, his acts of resisting or obstructing H and another officer (M) were “used to establish the obstruction conviction. Those acts do not constitute separate felonious criminal acts relative to the obstruction conviction because they cannot be separated from the acts that were used to establish that charge.” And because they “resulted in a separate conviction, they” also did not constitute separate felonious criminal acts as to the APO-CSI conviction. As a result, the trial court erred in scoring “10 points for OV 12 based on those acts.” In rejecting the prosecution’s argument to the contrary, the court noted that “the parties’ intentions in formulating a plea are not record evidence of criminal acts.” It held that because defendant’s acts of resisting H and M “were used to establish the separate obstruction conviction, the record does not support a finding of two contemporaneous felonious criminal acts against a person for purposes of scoring OV 12.” Further, correcting the error reduced “defendant’s total OV level from IV to III” as to the APO-CSI conviction and altered the guidelines range, entitling him to resentencing on that offense. The court affirmed his sentence for obstruction, vacated his APO-CSI sentence, and remanded “for resentencing and correction of the sentencing information reports for both convictions.”