Sentencing; Scoring of OVs 3 & 17; MCL 777.33(1)(c); People v Houston; MCL 777.47(1)(a) & (b); “Wanton or reckless disregard”; People v Fredell

Holding that the trial court did not err in scoring 25 points for OV 3 and 10 points for OV 17, the court affirmed. Defendant was convicted of involuntary manslaughter, first-degree fleeing and eluding a police officer resulting in death of another individual, and reckless driving causing death. He was sentenced as a fourth-offense habitual offender to 13 to 30 years for involuntary manslaughter and for reckless driving, and 17 to 30 years for fleeing and eluding, all to be served concurrently. The appellate brief filed by his counsel challenged the scoring of OVs 3, 5, 12, and 17. Only the challenge to the 10-point score for OV 17 was preserved. He contended that it should have instead been scored at 5 points, arguing that “because he was acquitted of second-degree murder and convicted of involuntary manslaughter, the trial court impermissibly ‘label[ed his] conduct as wanton and willful’ and” impermissibly relied on acquitted conduct. But in scoring OV 17, the trial court never found his “conduct to be ‘willful’ or purported to label it as such. Rather, the trial court scored OV 17 based on the jury’s determination that defendant was grossly negligent—a necessary element of [his] involuntary-manslaughter conviction given the prosecution’s theory of the case. The trial court’s finding in this regard was fully consistent with the ‘wanton or reckless disregard’ standard of conduct required for a 10-point score under OV 17.” Defendant did not offer any “authority to suggest otherwise.” As to his unpreserved challenge to the 25-point score for OV 3, he argued that Houston was wrongly decided. But that decision, which he acknowledged foreclosed his claim, is binding Michigan Supreme Court precedent that the court must follow. The court did not have to reach the merits of his challenges to OVs 5 and 12 “because removal of the 20 points assessed for” them from his “total OV score would not alter his sentencing guidelines range and thus would not entitle him to resentencing.”