Summary
remanding to the trial court for resentencing because it was unclear which of defendant's acts the trial court had relied on in scoring OV 12
Summary of this case from People v. PachecoOpinion
No. 336332
12-17-2019
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Derrin Torey ABBOTT, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Toni Odette, Assistant Prosecuting Attorney, for the people. Jonathan B. D. Simon, Bloomfield Hills, for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Toni Odette, Assistant Prosecuting Attorney, for the people.
Jonathan B. D. Simon, Bloomfield Hills, for defendant.
Before: Sawyer, P.J., and Murray and Shapiro, JJ.
ON REMAND
Per Curiam. This case is before us on remand from the Michigan Supreme Court to address (1) whether defendant committed three or more felonious criminal acts within 24 hours of his sentencing offense to justify the trial court's assessment of 10 points for Offense Variable (OV) 12, MCL 777.42, and (2) "whether the predicate offenses for the defendant's conviction of conducting a criminal enterprise constitute ‘the sentencing offense’ or can be considered as contemporaneous felonious criminal acts for the purpose of scoring OV 12." People v. Abbott , 504 Mich. 851, 851, 927 N.W.2d 704 (2019).
In answering these questions, we conclude that (1) the "sentencing offense" is the criminal-enterprise conviction, (2) the 21 dates listed on the felony information are the predicate offenses, which constitute the sentencing offense, (3) the predicate offenses cannot be considered contemporaneous felonious criminal acts for the purpose of scoring OV 12, and (4) defendant did not commit three or more contemporaneous felonious criminal acts within 24 hours of the sentencing offense to justify the assessment of 10 points for OV 12. Accordingly, we vacate defendant's sentence for conducting a criminal enterprise and remand for resentencing.
I. FACTS AND PROCEDURAL HISTORY
Defendant was involved in two cases consolidated for trial, only one of which, Wayne Circuit Court Case No. 16-006549-01-FC, is at issue on remand. In that case, defendant was charged with and convicted after a jury trial of conducting a criminal enterprise, MCL 750.159i(1) ; five counts of breaking and entering a building with intent to commit larceny (breaking and entering), MCL 750.110 ; five counts of safebreaking, MCL 750.531 ; and five counts of possession of burglar's tools, MCL 750.116. For the offense of conducting a criminal enterprise, the information listed 21 dates, from June 13, 2015, to March 21, 2016, on which defendant and his codefendant committed or conspired to commit the crimes of breaking and entering and safebreaking for financial gain. The five incidents for which defendant was separately charged with breaking and entering, safebreaking, and possession of burglar's tools, were included in those 21 dates.
In the second case, Wayne Circuit Court Case No. 16-003219-FH, defendant was convicted of breaking and entering with intent to commit larceny (breaking and entering), MCL 750.110 ; conspiracy to commit breaking and entering, MCL 750.157a ; and possession of burglar's tools, MCL 750.116, related to an incident that occurred on March 21, 2016.
Before sentencing, the prosecution filed a sentencing memorandum, asserting that the trial court should assess 10 points for OV 12 because defendant had engaged in three or more contemporaneous felonious acts within 24 hours of the sentencing offense of conducting a criminal enterprise. These included, according to the prosecution, acts of breaking and entering and safebreaking committed as part of the criminal enterprise and acts of receiving and concealing stolen property for which defendant was neither charged nor convicted. Ultimately, the trial court assessed 10 points for OV 12 and sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 20 to 40 years’ imprisonment for the conducting-a-criminal-enterprise and safebreaking convictions and to 10 to 20 years’ imprisonment for the breaking-and-entering and possession-of-burglar's-tools convictions. In so doing, the trial court stated:
[T]he People have charged that the sentencing offense of conducting a criminal enterprise took place over a lengthy period of time, specifically, the conducting a criminal enterprise date range is identified in the Information and was before the jury from June 13, 2015, through April 11, 2016. During that time, the People argue that the defendant conducted three contemporaneous felonious criminal acts as understood by Offense
Variable 12, including at least two incidences of receiving/concealing stolen property as well as numerous separate offenses ranging from September 16th to the end of the year.
I've reviewed my notes. I do note that a number of these separate offenses were introduced during the trial. I do find that three or more contemporaneous felonious criminal acts based on the record here today were committed, therefore, Offense Variable 12 is properly scored at 10 points.
Defendant appealed his convictions to this Court but failed to challenge the scoring of OV 12 or to raise any sentencing issues at all. We rejected the arguments defendant did raise and affirmed his convictions. People v. Abbott , unpublished per curiam opinion of the Court of Appeals, issued April 12, 2018 (Docket No. 336332), 2018 WL 1767406. Thereafter, in his form application for leave to appeal to the Supreme Court, defendant listed Prior Record Variables (PRV) 1, 2, and 7, and OVs 9, 12, 13, 14, and 16 as being challenged, but he only stated a general challenge to the OV scoring, making no argument as to any particular OV:
There should be a resentence in this case because the evidence in scoring OV is incorrect, and my PRV scoring was incorrect base[d] on my PSI information. A sentencing court should consider all record evidence before it when calculating the guideline including the contents of the PSI report. The information before the sentencing court was materially false, and the court relied on the prosecutor[’s] false evidence or information in imposing the sentence.
After ordering the prosecution to file an answer on the scoring of OV 12, the Supreme Court remanded the case to this Court to decide these issues in the first instance. II. ANALYSIS
We first address the Supreme Court's directive to determine "whether the predicate offenses for the defendant's conviction of conducting a criminal enterprise constitute ‘the sentencing offense’ or can be considered as contemporaneous felonious criminal acts for the purpose of scoring OV 12," Abbott , 504 Mich. at 851, 927 N.W.2d 704, and hold, for the reasons that follow, that the predicate offenses constitute the sentencing offense and that they, therefore, cannot be scored for OV 12.
Under the sentencing guidelines, a trial court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). Clear error exists when we are left with a definite and firm conviction that a mistake was made. People v. McChester , 310 Mich. App. 354, 358, 873 N.W.2d 646 (2015). "Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo." Hardy , 494 Mich. at 438, 835 N.W.2d 340.
A trial court must assess 10 points for OV 12 if "[t]hree or more contemporaneous felonious criminal acts involving other crimes were committed," MCL 777.42(1)(c), and five points if "[t]wo contemporaneous felonious criminal acts involving other crimes were committed," MCL 777.42(1)(e). A felonious criminal act is contemporaneous if "[t]he act occurred within 24 hours of the sentencing offense," and "[t]he act has not and will not result in a separate conviction." MCL 777.42(2)(a)(i ) and (ii ). "[W]hen scoring OV 12, a court must look beyond the sentencing offense and consider only those separate acts or behavior that did not establish the sentencing offense." People v. Light , 290 Mich. App. 717, 723, 803 N.W.2d 720 (2010).
Conducting a criminal enterprise, defendant's sentencing offense, occurs when "[a] person employed by, or associated with, an enterprise ... knowingly conduct[s] or participate[s] in the affairs of the enterprise directly or indirectly through a pattern of racketeering activity." MCL 750.159i(1). "Racketeering" is "committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit" certain enumerated offenses for financial gain, MCL 750.159g, including breaking and entering and safebreaking, MCL 750.159g(n) and (kk). And a "pattern of racketeering activity" requires the commission of at least two incidents of racketeering that share certain characteristics. MCL 750.159f(c). "[T]he prosecution must normally prove the commission of each element of the predicate acts of [conducting a criminal enterprise], in addition to the other elements of [conducting a criminal enterprise], in order to prove a [conducting a criminal enterprise] violation." People v. Martin , 271 Mich. App. 280, 290, 721 N.W.2d 815 (2006).
An " ‘[e]nterprise’ includes an individual, sole proprietorship, partnership, corporation, limited liability company, trust, union, association, governmental unit, or other legal entity or a group of persons associated in fact although not a legal entity," and encompasses "illicit as well as licit enterprises." MCL 750.159f(a).
These enumerated offenses are the predicate offenses. See Black's Law Dictionary (7th ed.) (defining "predicate act" for purposes of racketeering).
We note that the Martin Court referred to the offense listed in MCL 750.159i as racketeering, rather than conducting a criminal enterprise. Martin , 271 Mich. App. at 286, 321, 721 N.W.2d 815.
With respect to "whether the predicate offenses for the defendant's conviction of conducting a criminal enterprise [here, the breaking-and-entering and safebreaking offenses, demonstrating racketeering activity] constitute ‘the sentencing offense,’ " Abbott , 504 Mich. at 851, 927 N.W.2d 704, we hold that they do. There is no dispute that the five dates related to the predicate offenses for which defendant was separately charged and convicted cannot be used to score OV 12 because those acts resulted in separate convictions. MCL 777.42(2)(a)(ii ). Nonetheless, we conclude that all 21 dates listed as predicate offenses in the felony information under Count I constitute the sentencing offense and cannot be scored for purposes of OV 12.
These dates are November 13, 2015, November 26, 2015, December 6, 2015, December 28, 2015, and March 7, 2016.
The rationale set forth in People v. Carter , 503 Mich. 221, 931 N.W.2d 566 (2019), is dispositive. In Carter , the defendant was convicted of assault with intent to do great bodily harm (AWIGBH), among other things, for firing three gunshots through the door of an apartment he knew to be occupied. Id. at 223, 931 N.W.2d 566. This Court affirmed the assessment of 10 points for OV 12, reasoning that each gunshot was a separate act but only one was needed to support the AWIGBH conviction, and therefore the other two gunshots were contemporaneous felonious criminal acts warranting a 10-point assessment. People v. Carter , unpublished per curiam opinion of the Court of Appeals, issued June 27, 2017 (Docket No. 331142), p 3, 2017 WL 2791036. In addressing "whether factual support for defendant's AWIGBH conviction was established on the basis of all three gunshots or only one," Carter , 503 Mich. at 227-228, 931 N.W.2d 566, the Supreme Court relied on the prosecution's closing argument to conclude that "[g]iven that, in this case, the prosecution relied on all three gunshots as evidence of defendant's intent to commit murder or inflict great bodily harm, a finding that two of the gunshots were not part of the sentencing offense cannot be supported by the evidence," id . at 229. Because the prosecution relied on all three shots in arguing for a conviction, "it was inappropriate for the Court of Appeals to distinguish two gunshots from the conduct constituting the ‘sentencing offense.’ " Id .
Here, Count I of the felony information charging defendant with conducting a criminal enterprise listed 21 dates in which defendant committed breaking and entering and safebreaking. Just as the prosecution in Carter relied on all three gunshots as the acts establishing AWIGBH, id. , 931 N.W.2d 566, the prosecution relied on all 21 acts to charge defendant with conducting a criminal enterprise. That the prosecution chose to separately charge defendant with five counts of breaking and entering, safebreaking, and possession of burglar's tools for incidents that occurred on five of those 21 dates, and the jury convicted defendant of those crimes, does not affect our decision. Conducting a criminal enterprise may be punished separately from and cumulatively with the underlying predicate offenses. Martin , 271 Mich. App. at 295, 721 N.W.2d 815 (quotation marks omitted). However, it is not clear that the jury relied solely on those five predicate acts to find defendant guilty of conducting a criminal enterprise. And what is determinative under Carter is that the prosecution listed all 21 dates under Count I of the charging document as predicate offenses constituting the sentencing offense of conducting a criminal enterprise. As a result, they cannot be considered contemporaneous felonious criminal acts for the purpose of scoring OV 12.
The Martin Court quoted MCL 750.159j(11), as enacted by 1995 PA 187, which is now MCL 750.159j(13), see 2006 PA 129. The current version of the statute provides, "Criminal penalties under this section are not mutually exclusive and do not preclude the application of any other criminal or civil remedy under this section or any other provision of law."
This conclusion resolves the second question posed by the Supreme Court on remand, and also provides the conclusion to the first question, which is that there is insufficient evidence that defendant committed three or more contemporaneous acts within 24 hours to justify the 10-point assessment of OV 12.
The sentencing offense of conducting a criminal enterprise is a class B crime. MCL 777.16i. Defendant's total OV score, including the 10-point assessment for OV 12, was 40 points. His PRV score was 125 points. His sentencing guidelines range, enhanced by his fourth-offense habitual-offender status, was 87 to 290 months. MCL 777.63 ; MCL 777.21(3)(c). If a scoring error does not alter the appropriate guidelines range, a defendant is not entitled to resentencing. People v. Francisco , 474 Mich. 82, 89 n. 8, 711 N.W.2d 44 (2006). For a class B crime, an OV score of 35 to 49 points is OV Level III. MCL 777.63. An OV score of 25 to 34 points is OV Level II. MCL 777.63. Given defendant's habitual-offender status, the sentencing guidelines range for OV Level II is 84 to 280 months. MCL 777.63 ; MCL 777.21(3)(c).
The trial court erred by assessing defendant 10 points for OV 12. A subtraction of 10 points from defendant's OV score reduces his total to OV Level II, which decreases the minimum sentencing guidelines range and entitles defendant to resentencing. Francisco , 474 Mich. at 89 n. 8, 711 N.W.2d 44. There is no argument from the prosecution that absent consideration of the 21 dates corresponding to the predicate offenses, defendant committed three or more contemporaneous felonious criminal acts. Rather, the prosecution contends that five points should be assessed for OV 12 because on the day defendant was arrested, March 23, 2016, he possessed stolen property. In assessing 10 points for OV 12, the trial court stated that defendant committed contemporaneous felonious acts, including two incidents of receiving and concealing stolen property, but did not explicitly indicate that it used those acts to score OV 12. To determine whether the incidents of receiving and concealing stolen properly discovered on the day of defendant's arrest may be considered contemporaneous felonious acts under OV 12, factual findings, which are the province of the trial court, Gentris v. State Farm Mut. Auto. Ins. Co. , 297 Mich. App. 354, 364, 824 N.W.2d 609 (2012), must be made. Thus, this matter is remanded to the trial court for resentencing, which shall include a determination regarding whether an assessment of five points can be scored for OV 12.
III. CONCLUSION
Defendant's sentence for conducting a criminal enterprise is vacated, and this matter is remanded to the trial court for resentencing of defendant's criminal-enterprise conviction only. We do not retain jurisdiction.
Sawyer, P.J., Murray, C.J., and Shapiro, J., concurred.