Appeal from resentencing; Scoring of OVs 1 & 3; People v McGraw; MCL 777.31(1)(a); MCL 777.33(2)(b); People v Laidler; People v Albers; Acquitted conduct; People v Beck; Consideration of defendant’s trial testimony; People v Althoff

Holding that the trial court did not err on resentencing in scoring 100 points for OV 3 or 25 points for OV 1, the court affirmed his sentences, as a fourth-offense habitual offender, to 37 to 60 months for FIP and 60 months for felony-firearm. He was acquitted of a second-degree murder charge as well as the lesser included offense of voluntary manslaughter. He argued “that the trial court improperly used a transactional approach” to score OVs 1 and 3 in violation of McGraw. But the court found that his conduct related to commission of the FIP offense “could properly be considered in assessing points for OV 1 because during the commission of the offense he possessed and discharged the firearm at a person, and points for OV 3 could be assessed because his commission of the offense of [FIP] caused a victim physical injury that resulted in the death of the victim. Assessment of points for both OV 1 and OV 3 did not violate McGraw.” He relied on Laidler in arguing that he was not subject to a 100-point score for OV 3, but the court found he misinterpreted that case. The Supreme Court there determined that the Legislature’s use of “the phrase ‘results from the commission of a crime’” in MCL 777.33(2)(b) made it “clear that the defendant’s criminal actions must constitute a factual cause of a death for purposes of OV 3.” The court noted here that “defendant’s criminal possession of the firearm and use of it during the commission of [FIP] constituted the factual cause of the victim’s death. The victim would not have died ‘but for’ defendant’s crime of possessing a firearm as a felon.” As to his assertion “that MCL 777.33(1)(a) requires a ‘victim’ be killed” for 100 points to be assessed and thus, it did not apply “to him, since the killing was in self-defense and justified,” in Albers the court found that “for purposes of OV 3, the term ‘victim’ includes any person harmed by the criminal actions of the charged party.” The Supreme Court’s reasoning in Laidler was similar. “Under this definition, the victim may be someone ‘harmed by the criminal actions’ of defendant, for possessing a firearm as a felon, regardless of whether defendant acted in self-defense.” The court also concluded that the trial court properly considered his conduct underlying the FIP “charge, not the acquitted conduct.”