**_______________________________** Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

**FILED JULY 30, 2004**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,** 

**v No. 124083**  **LATASHA GENISE MORSON, Defendant-Appellee.** 

**BEFORE THE ENTIRE BENCH WEAVER, J.**  **Defendant Latasha Morson waited in a car while her friend, Iesha Northington, robbed De**  **borah Sevakis of her purse at gunpoint, using a gun obtained from defendant. As**  **Northington fled the scene, she shot James Bish, who tried to stop her and recover Sevakis’s purse. Following a bench**  **trial, defendant was convicted of armed robbery, 1**  **conspiracy**

**1 MCL 750.529.** **to commit armed robbery, 2**  **and two counts of possession of a firearm during the commission of a felony.**  **3 She was**  **sentenced to concurrent terms of eight to thirty years for the armed robbery and conspiracy convictions,**  **4 to be served**  **consecutively to the mandatory two-year sentence for felony-firearm.**  **The first issue to be addressed is how many points defendant could be properly assessed at sentencing under**  **offense variables (OV) 1 and 3. OV 1, which considers aggravated use of a weapon, and OV 3, which considers**  **physical injury to the victim, require both that the highest number of points be assessed and that multiple**  **offenders be assessed the same number of points for these variables. When Iesha Northington’s armed robbery**  **conviction was scored on May 10, 2000, she was assessed fifteen points for OV 1 and zero points for OV 3. But when**  **defendant’s armed robbery conviction was scored on December 10, 2001, the sentencing court assessed defendant twenty**  **** **five points for OV 1 and twenty-five points for OV 3. The**

**2 MCL 750.157(a).** 

**3 MCL 750.227b.** 

**4 The Court of Appeals opinion incorrectly states the**  **sentence as eight to** twenty **years. The sentencing transcript, sentencing information report, and judgment of**  **sentence all state the term as eight to thirty years.**

**2 Court of Appeals reversed the decision of the sentencing**  **court on this issue, concluding that the multiple offender provision required that defendant’s scores on OV 1 and OV 3**  **be the same as those previously assessed to Iesha Northington for OV 1 and OV 3.**  **The second issue that must be decided is how many points defendant could be properly assessed under OV 9,**  **which considers the number of victims. The sentencing court assessed ten points under this variable, concluding**  **that there were two victims. The Court of Appeals reversed and concluded that defendant should be assessed zero points**  **because there was one victim. We affirm in part and reverse in part. The Court of**  **Appeals correctly concluded that pursuant to the sentencing guidelines, defendant should have been**  **assessed the same scores for OV 1 and OV 3 that Iesha Northington was**  **assessed. But the Court of Appeals incorrectly held that under OV 9, defendant should have been assessed zero points**  **because there was only one victim. Pursuant to the language of the guidelines, two people were placed in**  **danger. Consequently, the sentencing court properly assessed defendant ten points under OV 9. We remand this**  **case to the circuit court for resentencing consistent with this opinion.** 

**3 Facts**  **Deborah Sevakis was robbed of her purse at gunpoint by Iesha Northington as Sevakis was walking down Nine Mile**  **Road in Ferndale at about 10:00 p.m. on May 29, 1999. Sevakis testified that someone tapped her on the shoulder**  **and demanded her purse. When Sevakis initially refused to give up her purse, Northington pointed a gun at her. As**  **Northington ran off with the purse, Sevakis yelled, “Call 9-1—1. I’ve been robbed.” Immediately, James Bish, who**  **was standing nearby and had witnessed the robbery, ran after Northington. When Bish told Northington to drop the**  **purse, Northington shot him. In her written statement to the police, defendant**  **stated that as she and Northington were driving down Nine Mile Road, they observed a lady walking with her purse and**  **discussed robbing her. Northington got out of the car while defendant drove to a gas station. Defendant next**  **observed Northington running toward the car, carrying a black purse. She also saw a man running and holding his**  **chest; Northington told her that she thought she had shot the man. Defendant admitted that she had given Northington**  **the gun that Jermaine Calloway had given her. Defendant stated that she and Northington stopped to get gas, then** 

**4 went to a Kmart store, where they tried unsuccessfully to**  **use Sevakis’s credit card. Following a bench trial, defe**  **ndant was convicted of armed robbery, conspiracy to commit armed robbery, and two**  **counts of felony-firearm. 5**  **Before defendant’s sentencing, Northington, who was sentenced on May 10, 2000, was**  **assessed fifteen points on OV 1 and zero points on OV 3. At defendant’s sentencing on December 10, 2001, she**  **asserted that she should be assessed the same number of points as Ms. Northington on OV 1 and OV 3 when defendant’s**  **armed robbery conviction was scored. But the court assessed defendant twenty-five points on OV 1 and twenty**  **** **five points on OV 3 when scoring defendant’s armed robbery conviction. The trial court also assessed defendant ten**  **points on OV 9. Defendant appealed, and the Court of Appeals reversed**  **and remanded for resentencing. 6**  **The Court of Appeals concluded that defendant should have been assessed the same**  **scores as Northington on OV 1 and OV 3 for the armed**

**5 Defendant and Northington were tried separately.**  **Though Northington was also charged with and convicted of assault with intent to commit murder, defendant was not.** 

**6 Unpublished opinion per curiam, issued May 29, 2003**  **(Docket No. 238750).**

**5 robbery conviction. Additionally, the Court of Appeals**  **concluded that defendant should have been assessed zero points on OV 9 because there was only one victim, not two.**  **This Court granted the prosecution’s application for leave to appeal.**  **7**

**7 469 Mich 966 (2003). The Court’s grant order**  **instructed the parties to include among the issues briefed: (1)**  **how subsection 1 of MCL 777.31 (offense variable one [OV 1]), requiring that the "highest**  **number of points" be assigned, should be applied in light of subsection 2(b), requiring that "all**  **offenders" in multiple offender cases be assessed the same number of points; (2) similarly, how**  **subsection 1 of MCL 777.33 (OV 3), requiring that the "highest number of points" be assigned,**  **should be applied in light of subsection 2(a),**  **requiring that ‘all offenders’ in multiple offender cases be assessed the same number of**  **points; (3) whether MCL 777.31(2)(b) and 777.33(2)(a) apply where all "offenders" have not**  **been charged with identical crimes; (4) whether under MCL 777.31(2)(b) and 777.33(2)(a) the trial**  **court is bound by a previously imposed sentence upon a codefendant where that sentence is based**  **upon an erroneous offense variable score; (5) whether under MCL 777.39 (OV 9) the number of**  **persons placed in danger includes only those persons who are placed in danger during the**  **particular crime for which defendant is being scored (here, armed robbery), or whether that**  **number includes all persons placed in danger at any point during the**  **criminal episode; and (6) whether the due process clauses of the state and**  **federal constitutions require that the prosecution prove the elements of a crime that**  **someone else committed before a court can base a defendant's sentence on the actions of the other**  **person. See** Harris v United States **, 536 US 545 (2002),**  Apprendi v New Jersey **, 530 US 466 . . . (continued...)** 

**6 Standard of Review**  **The issues in this case concern the proper interpretation and application of the legislative**  **sentencing guidelines, MCL 777.11** et seq. **, which are legal questions that this Court reviews de novo.**  People v Perkins, **468 Mich 448, 452; 662 NW2d 727 (2003). When construing a statute, this Court’s primary goal is to give**  **effect to the intent of the Legislature. We begin by construing the language of the statute itself. Where the**  **language is unambiguous, we give the words their plain meaning and apply the statute as written.**  People v Morey, **461 Mich 325, 330; 603 NW2d 250 (1999). Analysis**  **Generally, to determine a minimum sentence range under the legislative sentencing guidelines, the sentencing court**  **must first determine the offense category. MCL 777.21(1)(a). The sentencing court must then determine**  **which offense variables (OV) are applicable, score those variables, and total the points to determine the offender’s** 

**(...continued) (2000), and**  Washington v Blakely **, 111 Wash App 851 (2002), cert gtd sub nom**  Blakely v Washington **, [124 S Ct 429 (2003)].**

**7 offense variable level.**  Id **. The sentencing court also scores all prior record variables. MCL 777.21(1)(b). The**  **offender’s offense variables score and prior record variables score are then used with the sentencing grids to**  **determine the recommended minimum sentence range under the guidelines. MCL 777.21(1)(c).**  **In this case, the sen tencing issues presented arise**  **out of defendant’s armed robbery conviction, MCL 750.529. Under the guidelines, armed robbery is categorized as a**  **crime against a person. MCL 777.16y. MCL 777.22(1), as amended by 2002 PA 143, provided:**  **For all crimes against a person, score offense variables 1, 2, 3, 4, 7, 8, 9, 10, 11,**  **12, 13, 14, 19, and 20. Score offense variables 5 and 6 for homicide, attempted homicide,**  **conspiracy or solicitation to commit a homicide, or assault with intent to commit murder. Score**  **offense variable 16 under this subsection for a violation or attempted violation of . . . MCL**  **750.110a. Score offense variables 17 and 18 if an element of the offense**  **or attempted offense involves the operation of a vehicle, vessel, ORV,**  **snowmobile, aircraft, or locomotive. At issue are defendant’s scores for OV 1, OV 3, and OV 9.**  **OV 1 and OV 3 OV 1 assesses points for the aggravated use of a**  **weapon, MCL 777.31, and OV 3 assesses points for physical injury to a victim, MCL 777.33. This case concerns how** 

**8 these two variables are to be scored in cases involving**  **multiple offenders. MCL 777.31 provides in part: (1)**  **Offense variable 1 is aggravated use of a weapon. Score offense variable 1 by determining**  **which of the following apply and by** assigning the number of points attributable to the one that has the highest number of points **: (a)**  **A firearm was discharged at or toward a human being or a victim was cut or stabbed with a**  **knife or other cutting or stabbing weapon......25 points**  *** * *** **(c) A firearm was pointed at or toward a**  **victim or the victim had a reasonable apprehension of an immediate battery when**  **threatened with a knife or other cutting or stabbing weapon................15 points**  **(d) The victim was touched by any other type**  **of weapon...................10 points (e)**  **A weapon was displayed or implied.......5 points**  **(f) No aggravated use of a weapon**  **occurred.........0 points (2)**  **All of the follow ing apply to scoring**  **offense variable 1: (a)**  **Count each person who was placed in danger of injury or loss of life as a victim.**  **(b) In multiple offender cases, if 1**  **offender is assessed points for the presence or use of a weapon, all offenders shall be assessed**  **the same number of points. (c)**  **Score 5 points if an offender used an object to suggest the presence of a weapon.**  **(d) Score 5 points if an offender used a**  **chemical irritant, chemical irritant device,**

**9 smoke device, or imitation harmful substance or**  **device. (e)**  **Do not score 5 points if the conviction offense is a violation of . . . MCL 750.82 and**  **750.529. [Emphasis added.]**  **[8] MCL 777.33 provides in part:**  **(1) Offense variable 3 is physical injury to**  **a victim. Score offense variable 3 by determining which of the following apply and**  by assigning the number of points attributable to the one that has the highest number of points **: (a)**  **A victim was killed...........100 points (b)**  **A victim was killed...........50 points (c)**  **Life threatening or permanent incapacitating injury occurred to a**  **victim........25 points (d)**  **Bodily injury requiring medical treatment occurred to a victim........10 points**  **(e) Bodily injury not requiring medical**  **treatment occurred to victim...........5 points (f)**  **No physical injury occurred to a victim.............5 points**  **(2) All of the follow**  **ing apply to scoring offense variable 3:**  **(a) In multiple offender cases, if 1**  **offender is assessed points for death or physical injury, all offenders shall be assessed the same**  **number of points.**

**8 Some amendments were made to the statute after the**  **crime in the present case occurred. Subsection 1(d) was added in 2001. In 2002, amendments added subsection 1(b),**  **which scores twenty points for exposure to harmful substances or incendiary devices, and subsection 3, which**  **defines harmful substances and incendiary devices.**

**10***** * *** **(d) Do not score 5 points if bodily injury**  **is an element of the sentencing offense. (3)**  **As used in this section, “requiring medical treatment” refers to the necessity for**  **treatment and not the victim's success in obtaining treatment. [Emphasis added.]**  **[9] When the sentencing court scored defendant’s armed**  **robbery conviction, it assessed defendant twenty-five points on OV 1 for the shooting of Bish. But when Iesha**  **Northington had previously been sentenced for the armed robbery before defendant, she was assessed only fifteen**  **points under OV 1. Similarly, on OV 3, defendant was assessed twenty-five points for the shooting of Bish, while**  **Iesha Northington had been assessed zero points. Focusing on subsection 1 of each statute, the**  **prosecution contends that defendant may be assessed twenty**   ** five points for OV 1 and OV 3 when scoring the armed** **robbery conviction because subsection 1 requires the sentencing court to assess the “highest number of points”**  **and because the sentencing court should not be bound to apply “inaccurate” scores. Defendant, on the other hand,** 

**9 This statute was revised in 2003, after the crime in**  **this case was committed. The amendments, which increased the score imposed under 1(b) from thirty-five points to**  **fifty points and made corresponding revisions to 2(c), do not affect the present case.** 

**11 asserts that subsection 2 of each statute requires that**  **defendant, for her armed robbery conviction, be assessed**  **the same scores for OV 1 and OV 3 that Iesha Northington was assessed when scored for armed robbery. On the facts**  **before us, we agree with defendant that the plain language of subsection 2 requires that defendant, when scored on the**  **armed robbery conviction, be assessed the same scores on OV 1 and OV 3 that Iesha Northington was previously assessed**  **on those variables when she was scored for armed robbery. 10**  **Each multiple offender provision states that if one**  **offender is assessed points under the variable, “all offenders shall be assessed the**  same number **of points.” MCL 777.31(2)(b), MCL 777.33(2)(a)(emphasis added).**  **11 While** 

**10 Because the scoring issues in this case can be**  **resolved under the plain language of the statute, it is unnecessary to address, as do the concurring and**  **concurring/dissenting opinions, whether armed robbery is a transactional offense. See concurring opinion of Corrigan,**  **C.J., at 1-5, 10-11 and partially concurring and partially dissenting opinion of Markman, J., at 7 n 1**  . **Additionally, it is unnecessary to draw the sharp lines that Justice**  **Markman attempts to draw between “offenses” stemming from this event. See**  infra **at 3-6.**

**11 We note that there is no language in either statute**  **to suggest that the multiple offender provision applies only when “offenders” are charged**  **with identical crimes. Thus, the fact that Northington was charged with additional**  **crimes—namely, assault with intent to murder—does not mean that the multiple offender provisions do not apply to the**  **armed robbery convictions arising from the incident.**

**12 we agree that the sentencing court should not be bound to**  **apply an erroneous score in the multiple offender context, we note that the prosecution does not characterize Iesha**  **Northington’s scores on OV 1 and OV 3 of her armed robbery conviction as inaccurate or erroneous. In fact, the**  **prosecution acknowledged in its brief that Northington’s scores were not disputed by the prosecution at sentencing.**  **12 Rather, the prosecution’s argument seems to be that**  **whenever it appears possible that a higher score could be argued for under the variables, a subsequent sentencing**  **court is not bound by the prior score because the sentencing court is required to assess the “highest number**  **of points.” We find such analysis contrary to the plain language of the statute, which requires the sentencing**  **court to assess the same number of points to multiple offenders.**  **13**

**12 Compare**  People v Libbett, **251 Mich App 353, 366; 650 NW2d 407 (2002), in which it was “undisputed” that the**  **first offender sentenced had been scored improperly on OV 1.** 

**13 Justice Young opines in his partially concurring and**  **partially dissenting opinion that the multiple offender provision does not require a comparison of the OV scores**  **for identical crimes (i.e., comparing Northington’s armed robbery OV 1 score with defendant’s armed robbery OV 1**  **score) but that the provision contemplates simply the comparison of OV**  scores **.** Post **at 4-5. Not only is this inconsistent with MCL 777.21(2), which requires the**  **(continued...)**

**13 Further, we reject the argume**  **nt that our conclusion would read the “highest number of points” requirement out**  **of the statute. When the sentencing court assesses points for the first offender, it must assess the “highest number**  **of points” that can be assessed under the statute. If Iesha Northington’s scores were inaccurate or erroneous**  **because the sentencing court failed to assess the highest number of points, the prosecution should have challenged**  **the scores at Northington’s sentencing. But the prosecution acknowledges that Northington’s scores were not**  **disputed and it does not argue to this Court that the scores Northington received under OV 1 and OV 3 were** 

**(...continued) sentencing court to score each offense, but such a reading**  **may lead to illogical results. Suppose that defendant, like Northington, had also been convicted of assault with**  **intent to commit murder. Under Justice Young’s theory, since the sentencing court would only compare the OV 1**  scores **, and not the OV scores received for a specific offense, presumably defendant could receive twenty-five**  **points under OV 1 for** both **her assault with intent to murder conviction and her armed robbery conviction because**  **the sentencing court, looking at only the OV 1** scores **, could simply give defendant the highest OV 1 score—25**  **points—that Northington received under OV 1 when her offenses were scored. Or suppose that defendant was**  **convicted of an additional crime that Northington was not. Under Justice Young’s theory, Northington’s scores for an**  **offense variable would be considered when defendant is subsequently scored and sentenced for the additional**  **offense. This would be another illogical result of Justice Young’s theory.** 

**14 erroneous. Consequently, in the absence of any clear**  **argument that the scores assessed to Northington under OV 1 and OV 3 were incorrect, the sentencing court should have**  **assessed defendant the same number of points that were assessed to Northington for OV 1**  **and OV 3 when her armed robbery conviction was scored: fifteen points and zero**  **points. For these reasons, we affirm the Court of Appeals**  **conclusion concerning defendant’s scores for OV 1 and OV 3. OV 9**  **Offense variable 9 assesses points on the basis of the number of victims. MCL 777.39 provides:**  **(1) Offense variable 9 is number of victims.**  **Score offense variable 9 by determining which of the following apply and by assigning the number**  **of points attributable to the one that has the highest number of points:**  **(a) Multiple deaths occurred......100 points**  **(b) There were 10 or more victims.......25**  **points (c)**  **There were 2 to 9 victims..........10 points**  **(d) There were fewer than 2 victims.......0**  **points (2)**  **All of the follow ing apply to scoring**  **offense variable 9: (a)**  **Count each person who was placed in danger of injury or loss of life as a victim.** 

**15 (b)**  **Score 100 points only in homicide cases. [Emphasis added.]**  **Defendant was assessed ten points by the sentencing court for two victims: Deborah Sevakis and James Bish.**  **The Court of Appeals reversed that determination by the sentencing court, concluding that Sevakis was the only**  **victim of the armed robbery. We disagree with the Court of Appeals and therefore reverse its conclusion regarding OV**  **9. Pursuant to the plain language of the statute, the**  **sentencing court is to count “each person who was placed in danger of injury or loss of life”**  **as a victim. Though Sevakis was the only person actually robbed, Bish, who was**  **standing nearby and responded to Sevakis’s call for help, was also “placed in danger of injury or loss of life” by**  **the armed robbery of Sevakis. 14**  **Consequently, the sentencing court properly counted Bish as a victim and**  **properly scored defendant under OV 9.**

**14 Justice Markman, in his concurring/dissenting**  **opinion, fails to apply the plain language of the statute, which, as explained, requires the sentencing court to count** 

**“** each person **who was placed in danger of injury or loss of life” as a victim. MCL 777.39(2)(a).** 

**16 Conclusion**  **We conclude that pursuant to the language of the sentencing guidelines, defendant should have been assessed**  **the same number of points on OV 1 and OV 3 that Iesha Northington was assessed when scored on the armed robbery**  **conviction. Unless the prose cution can demonstrate that**  **the number of points assessed to the prior offender was erroneous or inaccurate, the sentencing court is required**  **to follow the plain language of the statute, which requires the court to assess the same number of points on OV 1 and**  **OV 3 to multiple offenders. The prosecution has not alleged that Northington’s score on these variables was in**  **error. Consequently, we affirm the Court of Appeals conclusion that defendant should have been assessed the**  **same number of points as Northington on OV 1 and OV 3. Additionally, we conclude that defendant was properly**  **assessed ten points by the sentencing court for OV 9 because there were two people placed in danger of injury or**  **loss of life: Sevakis, who was robbed, and Bish, a bystander who responded to Sevakis’s call for help.** 

**17 Accordingly, the decision of the Court of Appeals is**  **reversed on this point. 15**  **We remand the case to the circuit court for resentencing consistent with this opinion.**  **Elizabeth A. Weaver Maura D. Corrigan**  **Michael F. Cavanagh Marilyn Kelly** 

**15 Given our resolution of the sentencing issues in this**  **case, it is unnecessary to address whether due process requires that the prosecution prove the elements of a crime**  **that someone else committed before a court can base a defendant’s sentence on the actions of the other person.** 

**18 _______________________________**  **v S T A T E O F M I C H I G A N** 

**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,** 

**No. 124083**  **LATASHA GENISE MORSON, Defendant-Appellee.** 

**CORRIGAN, C.J. (** concurring **). I concur in the majority’s result for the sake of**  **reaching a clear rule regarding the legislative sentencing guidelines and providing direction to trial courts in**  **implementing the guidelines. I believe that offense variables 1 (OV 1) and 3 (OV 3), however, contain language**  **that may be contradictory in some cases, such as the instant case. I further believe that armed robbery is a**  **transactional offense and thus concur with the majority’s conclusion that the trial court properly assessed defendant**  **ten points under OV 9. I.**  **ARMED ROBBERY IS A TRANSACTIONAL OFFENSE At the time that defendant and Northington committed**  **the armed robbery in this case, the armed robbery statute, MCL 750.529, provided, in part:**  1 **Any person who shall assault another, and shall feloniously rob, steal**  **and take from his person, or in his presence, any money or other**  **property, which may be the subject of larceny, such robber being armed with a dangerous weapon,**  **or any article used or fashioned in a manner to lead the person so assaulted to reasonably**  **believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in**  **the state prison for life or for any term of years.** 

**In** People v Randolph **, 466 Mich 532, 551; 648 NW2d 164 (2002), a majority of this Court rejected the**  **“transactional approach” to unarmed robbery. Under the transactional approach, “a defendant**  **has not completed a robbery until he has escaped with stolen merchandise.**  **Thus, a completed larceny may be elevated to a robbery if the defendant uses force after the taking and before**  **reaching temporary safety.”** Id **. at 535 (citations omitted). A majority of this Court determined, on the**  **basis of the language of the unarmed robbery statute in existence at that time and on the common-law history of** 

1 **The Legislature amended MCL 750.529 after the armed robbery in this case. This amendment is discussed in note**  **2,** infra **.**

2**unarmed robbery, that the force used to accomplish the taking must be contemporaneous with the taking.**  Id **. at 536.**  **In so holding, the majority overruled four Court of Appeals cases, including three involving armed robbery,**  People v Tinsley **, 176 Mich App 119; 439 NW2d 313 (1989);** People v Turner **, 120 Mich App 23; 328 NW2d 5 (1982); and** People v Sanders **, 28 Mich App 274; 184 NW2d 269 (1970).** Randolph, supra **at 546. The portion of the**  Randolph **opinion overruling the above cases involving armed robbery is dicta because**  Randolph **did not involve armed robbery. Further, the unarmed robbery statute at issue in**  Randolph **, MCL 750.530, was significantly different than the armed robbery statute**  **at issue in the instant case. The statute at issue in** Randolph **stated: Any person who shall,**  by force or violence, or by assault or putting in fear, **feloniously rob, steal and take from the person of another,**  **or in his presence, any money or other property which may be the subject of larceny, such robber**  **not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in**  **the state prison not more than 15 years. [Emphasis added.]**  **The armed robbery statute at issue in this case, however, does not contain the above emphasized language that the**  Randolph **majority found required a taking contemporaneous with the use of force, violence, or putting in fear.** 

3**Rather, MCL 750.529 merely required an assault “and” a taking. Thus, the majority opinion in**  Randolph **did not implicate armed robbery, and the armed robbery statute at**  **issue in this case followed a transactional approach because nothing in the statute required that the use of**  **force be contemporaneous with the taking.** 2

**2 The Legislature effectively overruled**  Randolph **after this Court released its decision in that case. MCL 750.530**  **now provides: (1)**  **A person who, in the course of committing a larceny of any money or other**  **property that may be the subject of larceny, uses force or violence against any person who is**  **present, or who assaults or puts the person in fear, is guilty of a felony punishable by**  **imprisonment for not more than 15 years. (2)**  **As used in this section, “in the course of committing a larceny” includes acts that occur**  **in an attempt to commit the larceny, or during commission of the larceny, or in flight or**  **attempted flight after the commission of the larceny, or in an attempt to retain possession of**  **the property. Thus, effective July 1, 2004, the Legislature has**  **explicitly stated that unarmed robbery is a transactional offense.**  **The Legislature also amended the armed robbery statute, MCL 750.529, which now provides:**  **A person who engages in conduct proscribed under section 530 and who in the course of**  **engaging in that conduct, possesses a dangerous weapon or an article used or fashioned in a**  **manner to lead any person present to reasonably believe the article is a dangerous weapon, or who**  **represents orally or otherwise that he or she is (continued...)** 

4**II. OV 1 and OV 3**  **Because armed robbery is a transactional offense, and Northington shot Bish immediately after she stole Sevakis’**  **purse and before she reached a place of temporary safety, the trial court’s consideration of the shooting when**  **determining defendant’s score under OV 1 and OV 3 was arguably proper.**  **3 OV 1, MCL 777.31, involves the aggravated** 

**(...continued) in possession of a dangerous weapon, is guilty of**  **a felony punishable by imprisonment for life or for any term of years. If an aggravated assault**  **or serious injury is inflicted by any person while violating this section, the person shall be**  **sentenced to a minimum term of imprisonment of not less than 2 years.**  **This case involves the version of MCL 750.529 in existence before the amendment effective July 1, 2004.** 

**3 I disagree with Justice Markman that once all the**  **elements of the armed robbery were completed, no subsequent use of force to help Northington retain possession of**  **Sevakis’ purse could be considered a continuation of the armed robbery. See**  post **note 1. Northington shot Bish in an attempt to retain possession of the purse. Thus, the**  **shooting occurred in furtherance of the armed robbery and is properly considered a continuation of the robbery under**  **the transactional approach. If, as recognized in Justice Markman’s**  Randolph **dissent, “a defendant has not completed a robbery until he has escaped with stolen merchandise” and**  **reached a place of temporary safety,** Randolph, supra **at 535, then, contrary to Justice M**  **ARKMAN ’s contention in note**  **1,** post **, the armed robbery in this case was not complete immediately after Northington acquired Sevakis’ purse**  **because Northington had not yet reached a place of temporary safety. Accordingly, the use of force subsequent**  **to the actual taking itself committed in an attempt to retain possession of the purse was a part of the armed**  **(continued...)**

5**use of a weapon. At the time that defendant committed the armed robbery in this case, that section provided, in**  **relevant part: 4**  **(1) Offense variable 1 is aggravated use of**  **a weapon.** Score offense variable 1 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points **: (a)**  **A firearm was discharged at or toward a human being or a victim was cut or stabbed with a**  **knife or other cutting or stabbing weapon.....25 points**  **(b) A firearm was pointed at or toward a**  **victim or the victim had a reasonable apprehension of an immediate battery when**  **threatened with a knife or other cutting or stabbing weapon........15 points** 

*** * ***

**(...continued) robbery. See**  People v Velasquez **, 189 Mich App 14, 17; 472 NW2d 289 (1991) (use of force after taking in an attempt to**  **retain possession of property constitutes force or coercion for armed robbery);**  People v Tinsley **, 176 Mich App 119, 121; 439 NW2d 313 (1989) (because robbery is a continuous**  **offense, the use of force after a taking in order to retain stolen property constitutes force for purposes of armed**  **robbery statute). In any event, the views expressed by Justice M**  **ARKMAN could not have survived the amendments of MCL**  **750.529 and MCL 750.530. Under those amendments, effective**  **July 1, 2004, acts of force or violence during flight or attempted flight after acquiring the stolen property or in**  **an attempt to retain possession of the stolen property occur during “the course of committing” the robbery. See**  **note 2,** supra **. 4**  **The Legislature amended MCL 777.31 after the crime in this case, but the amendments are not relevant to this**  **appeal. See** ante **note 8.**

6**(2) All of the follow**  **ing apply to scoring offense variable 1:**  **(a) Count each person who was placed in**  **danger of injury or loss of life as a victim. (b)**  In multiple offender cases **,** if 1 offender is assessed points for the presence or use of a weapon, all offenders shall be assessed the same number of points. **[Emphasis added.] The trial court also assessed twenty-five points under**  **OV 3. OV 3, MCL 777.33, involves physical injury to a victim. At the time that defendant committed the armed**  **robbery in this case, MCL 777.33 provided, in relevant part:**  **5 (1)**  **Offense variable 3 is physical injury to a victim.**  Score offense variable 3 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points **:** *** * *** **(c) Life threatening or permanent**  **incapacitating injury occurred to a victim.............25 points**  **(d) Bodily injury requiring medical**  **treatment occurred to a victim....................10 points** 

**5 Like OV 1, the Legislature amended MCL 777.33 after**  **the armed robbery in this case. The amendments do not affect the result of this case. See Justice W**  **EAVER ’s**  **opinion, note 9.**

7**(e) Bodily injury not requiring medical**  **treatment occurred to a victim.....................5 points**  **(f) No physical injury occurred to a**  **victim...................................0 points (2)**  **All of the follow ing apply to scoring**  **offense variable 3: (a)**  In multiple offender cases, if 1 offender is assessed points for death or physical injury, all offenders shall be assessed the same number of points. **[Emphasis added.] Subsection 1 of both OV 1 and OV 3 required the trial**  **court to assess the highest number of points that it could assess for each variable. Following the transactional**  **approach to armed robbery, the trial court did so by assessing defendant twenty-five points under OV 1 because**  **Northington discharged a firearm toward Bish. The court also assessed defendant twenty-five points under OV 3**  **because Bish’s gunshot wound to the chest was life**   ** threatening. Thus, the trial court properly complied with** **subsection 1 of both variables and assessed the highest number of points possible under each variable.**  **Notwithstanding the above language of OV 1 and OV 3, subsection 2(b) in OV 1 and subsection 2(a) in OV 3**  **required the trial court to assess the same number of points under those variables as**  **were assessed for Northington. The trial court assessed Northington fifteen** 

8**points under OV 1 and zero points under OV 3. Thus, the trial court did not assess Northington the highest number**  **of points as subsection 1 of OV 1 and OV 3 directs. The question then is whether the trial court was obligated to**  **assess defendant the same number of points as were assessed for Northington notwithstanding the fact that Northington**  **was not assessed the highest number of points. The answer to this question is unclear. In these circumstances, the**  **language of subsection 1 of OV 1 and OV 3 conflicts with the language of subsection 2(b) in OV 1 and subsection 2(a)**  **in OV 3. The trial court could not have followed one provision without rendering the other nugatory.**  **Because it is the duty of the judiciary to interpret, not to write, our laws, we, as judges, are unable to**  **correct the conflicting language of OV 1 and OV 3. Rather, that task is left to the Legislature. A practical approach**  **to this problem would require trial courts to assess offenders in multiple offender cases the same number of**  accurately scored **points. In that event, trial courts would be required to assess multiple offenders the same**  **number of points only if the first offender’s assessment of points was accurate. Otherwise, trial courts would be**  **required to assess subsequently sentenced offenders “the highest number of points.” Because the “highest number of** 

9**points” provision of OV 1 and OV 3 conflicts with the “multiple offender” provision of those variables, and**  **nothing directs which provision prevails, I concur with the majority that defendant was required to be assessed the**  **same number of points as were scored for Northington. 6** 

**III. OV 9**  **I also concur with the majority that the trial court properly assessed defendant ten points under OV 9. OV 9,**  **MCL 777.39, provides, in part: (1)**  **Offense variable 9 is number of victims. Score offense variable 9 by determining which of**  **the following apply and by assigning the number of points attributable to the one that has the**  **highest number of points: (a)**  **Multiple deaths occurred...........100 points**  **(b) There were 10 or more victims.......25**  **points (c)**  **There were 2 to 9 victims...........10 points** 

**6 In his concurring and dissenting opinion, Justice**  **Young opines that the trial court properly scored defendant’s OV 1 and OV 3 variables in the instant case**  **because those scores coincided with Northington’s OV 1 and OV 3 scores for her assault conviction. Even accepting**  **Justice Y OUNG**  **’s argument as correct, however, a conflict may still exist between the “highest number of points”**  **provision and the “multiple offender” provision in some cases. Although under Justice Y**  **OUNG ’s theory, defendant was**  **properly scored in this case, the above provisions would still conflict in other cases if the first offender to be**  **sentenced is not assessed the highest number of points.**

10**(d) There were fewer than 2 victims......0**  **points (2)**  **All of the follow ing apply to scoring**  **offense variable 9: (a)**  **Count each person who was placed in danger of injury or loss of life as a victim.**  **Because armed robbery is a transactional offense and Bish was placed in danger of injury or loss of life while the**  **robbery was ongoing, the trial court properly considered**  **him a victim of the armed robbery under subsection 2(a). 7**  **Accordingly, the trial court’s assessment of ten points under this variable was correct.** 

**IV. CONCLUSION**  T **he “multiple offender” provision of OV 1 and OV 3 conflicts with the “highest number of points” provision of**  **those variables. Accordingly, it is unclear whether the trial court assessed the proper number of points under each**  **variable. Nevertheless, I concur with the majority for the sake of reaching a clear rule and offering guidance to**  **sentencing courts in implementing the legislative**

**7 As discussed in note 3,**  supra **, because Northington shot Bish in an attempt to retain possession of Sevakis’**  **purse and before she reached a place of temporary safety, the shooting was a continuation of the robbery under the**  **transactional approach to that offense. Thus, the trial court properly considered the shooting in scoring OV 9.** 

11**sentencing guidelines. I urge the Legislature to amend those sentencing variables containing the above conflicting**  **provisions. Further, I concur with the majority’s conclusion regarding OV 9. Because armed robbery is a**  **transactional offense, the trial court properly assessed defendant ten points under OV 9.**  **Maura D. Corrigan**

12**_______________________________ v**  **S T A T E O F M I C H I G A N**

**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,** 

**No. 124083**  **LATASHA GENISE MORSON, Defendant-Appellee.** 

**MARKMAN, J. (** concurring in part and dissenting in part **). I concur in the conclusion of the majority opinion**  **that the trial court improperly scored OV 1 and OV 3, although I reach this conclusion by a different analysis.**  **I respectfully dissent from the conclusion of the majority opinion that the trial court properly scored OV 9.**  **Defendant and Iesha Northington robbed an elderly woman, Deborah Sevakis. Northington stole Sevakis’s purse.**  **James Bish, a bystander who witnessed the robbery, chased after Northington and Northington shot Bish. Defendant was**  **the getaway driver. Northington pleaded guilty to armed robbery and assault with intent to murder, and defendant**  **was convicted of armed robbery, but never charged with the assault.** **OV 1 is to be scored at fifteen points for pointing a firearm at a person and twenty-five points for discharging**  **a firearm at a person. MCL 777.31(1)(a) and (c). Although defendant’s accomplice, Iesha Northington, was assessed**  **twenty-five points for the assault conviction, she was assessed only fifteen points for the armed robbery**  **conviction. Defendant was assessed twenty-five points for the armed robbery conviction. Defendant was never charged**  **with an assault. The Court of Appeals concluded that the trial court erred in assessing defendant twenty-five points**  **for the armed robbery conviction because MCL 777.31(2)(b) provides that “[i]n multiple offender cases, if 1 offender**  **is assessed points for the presence or use of a weapon, all offenders shall be assessed the same number of points.”**  **The majority opinion agrees. OV 3 is to be scored at twenty-five points if a victim**  **suffered a life-threatening injury. MCL 777.33(1)(c). Clearly, James Bish suffered a life-threatening injury when**  **he was shot in the chest and his lung was punctured. Although Northington was assessed twenty-five points for**  **the assault conviction, she was assessed zero points for the armed robbery conviction. Defendant was assessed**  **twenty-five points for the armed robbery conviction. Again, the Court of Appeals concluded that this was an** 

**2 error because MCL 777.33(2)(a) provides that “[i]n multiple**  **offender cases, if 1 offender is assessed points for death or physical injury, all offenders shall be assessed the**  **same number of points.” The majority opinion again agrees. MCL 769.31(d) provides:**  **“Offense characteristics” means the elements of the crime and the aggravating and mitigating**  **factors relating to** the offense **that the legislature determines are appropriate. For**  **purpose of this subdivision, an offense described in section 33b of 1953 PA 232, MCL 791.233b, that**  **resulted in a conviction and that arose out of the same transaction as the offense for which the**  **sentencing guidelines are being scored shall be considered as an aggravating factor. [Emphasis**  **added.] Therefore, in general, when scoring offense variables, the**  **trial court can only consider the offense for which the sentencing guidelines are being scored and those enumerated**  **offenses that arose out of the same transaction as that offense and that resulted in convictions.**  **1 In this case, the discharging of the firearm and the**  **resulting injury to Bish are not factors that relate to the robbery offense—the offense for which the sentencing**  **guidelines are being scored—but are, instead, factors that**

**1 Although the majority opinion believes that it is**  **“unnecessary to draw . . . sharp lines . . . between ‘offenses’ stemming from [the same] event,” a**  nte **at 12 n 10, the Legislature, as evidenced by the express language**  **of MCL 769.31(d), believes otherwise.**

**3 relate to the assault offense—an offense of which defendant**  **was never convicted. Therefore, the trial court erred when it considered these factors in scoring defendant’s robbery**  **conviction. MCL 777.31(1) and MCL 777.33(1) provide that OV 1 and**  **OV 3 are to be scored “by determining which of the following apply and by assigning the number of points**  **attributable to the one that has the highest number of points.” With regard to OV 1, defendant argues that**  **fifteen points was the highest score attributable to either offender for the robbery because a weapon was pointed, but**  **not discharged during the robbery. Northington did not discharge the weapon until after the robbery. Similarly,**  **with regard to OV 3, defendant argues that zero points was the highest score attributable to either offender for the**  **robbery because nobody was injured during the robbery. Northington did not shoot Bish until after the robbery.**  **MCL 769.31(d) explicitly states that “an offense described in section 33b of 1953 PA 232, MCL 791.233b, that**  **resulted in a conviction and that arose out of the same transaction as the offense for which the sentencing**  **guidelines are being scored shall be considered as an aggravating factor.” This is clearly an exception to the**  **general rule—the general rule being that the relevant**

**4 factors are those that relate to the offense being scored,**  **and the exception being that, if the defendant is convicted of certain enumerated offenses that arose out of the same**  **transaction as the offense being scored, these offenses can be taken into consideration in scoring. Although assault**  **with intent to murder is one of the enumerated offenses and the assault arguably arose out of the same transaction as**  **the armed robbery, defendant was not convicted of assault with intent to murder. Therefore, the fact that**  **Northington shot Bish cannot be considered in scoring defendant’s robbery conviction. The trial court took this**  **shooting into consideration when it scored OV 1 and OV 3, and, thus, improperly scored OV 1 and OV 3.**  **That the general rule is that the relevant factors are those that relate to the offense being scored is further**  **supported by the fact that some offense variables**  **specifically provide otherwise. For instance, MCL 777.44(2)(a) provides that in scoring OV 14 (whether the**  **offender was a leader in a multiple offender situation), “[t]he entire criminal transaction should be considered.”**  **In other offense variables, the Legislature unambiguously made it known when behavior outside of the scored offense**  **is to be taken into account. OV 12, for example, applies to acts that occurred within twenty-four hours of the** 

**5 sentencing offense and have not resulted in separate**  **convictions. MCL 777.42(2)(a). OV 13 explicitly permits scoring for “all crimes within a 5-year period, including**  **the sentencing offense” regardless of whether they resulted in conviction. MCL 777.43(2)(a). OV 16 provides that**  **“[i]n multiple offender or victim cases, the appropriate**  **points may be determined by adding together the aggregate value of the property involved, including property involved**  **in uncharged offenses or charges dismissed under a plea agreement.” MCL 777.46(2)(a). Finally, OV 8 (scoring for**  **victim asportation or captivity) specifically focuses on conduct “beyond the time necessary to commit the offense.”**  **MCL 777.38. That the Legislature has explicitly stated in some offense variables that conduct not related to the**  **offense being scored can be considered strengthens the conclusion that, unless stated otherwise, only conduct that**  **relates to the offense being scored may be considered. OV 9 is to be scored at ten points if two to nine**  **victims were involved. MCL 777.39(1)(c). “[E]ach person who was placed in danger of injury or loss of life” is to**  **be counted as a victim. MCL 777.39(2)(a). OV 9 does not require multiple offenders to receive the same score. Both**  **defendant and Northington were assessed ten points. The Court of Appeals concluded that this was error because only** 

**6 I**  **Deborah Sevakis was placed in danger during the robbery. agree. The robbery was complete by the time Bish**  **intervened. Bish was not the victim of the robbery; he was the victim of the assault.**  **2 Defendant was not charged with**  **the assault. 3**  **For the same reason that the assault cannot**

**2 The majority opinion accuses me of “fail[ing] to**  **apply the plain language of the statute.”** Ante **at 16 n 14. However, with all due respect, I believe it is the majority**  **opinion that fails to apply the clear language of the statute. MCL 769.31(d) specifically states that “the**  **offense” and any enumerated offenses “that resulted in a conviction and that arose out of the same transaction as**  **the offense for which the sentencing guidelines are being scored shall be considered . . . .” In this case, “the**  **offense for which the sentencing guidelines are being scored” is armed robbery. Defendant was not convicted of**  **assault, or any other offense. Under the express language of the statute, only the robbery, not the assault, can be**  **considered.**

**3 MCL 769.31(d) states that “‘[o]ffense**  **characteristics’ means the elements of the crime and the aggravating and mitigating factors relating to the offense**  **that the legislature determines are appropriate.” Therefore, I agree with Justice Young that the trial court**  **can “consider not only the actual elements constituting the offense, but also any aggravating or mitigating factors**  associated with **the offense . . . .”** Post **at 2 (emphasis in original). However, in this case, the disputed factors**  **relate not to** the offense **—armed robbery—but to another offense—assault—that occurred after**  the offense **[of armed robbery]**  **was already completed and that defendant was never even charged with, let alone convicted of. As explained**  **above, MCL 769.31(d) specifically states that only offenses that have resulted in convictions can be considered.**  **Because defendant was not convicted of an assault, the assault cannot be considered in scoring the armed robbery**  **offense. To allow the assault to be considered, even though it was not even charged, would be to circumvent the**  **guidelines by scoring a defendant on the basis of (continued...)** 

**7 be considered when scoring OV 1 and OV 3, it cannot be**  **considered when scoring OV 9. 4** 

**(...continued) circumstances constituting an offense that was never even**  **charged. However, I do agree with Justice Young that the assault may be considered by the court in imposing an**  **upward departure as long as the standards articulated in** People v Babcock, **469 Mich 247; 666 NW2d 231 (2003), have been adhered to.** 

**4 Chief Justice Corrigan concludes that “[b]ecause**  **armed robbery is a transactional offense, and Northington shot Bish immediately after she stole Sevakis’ purse and**  **before she reached a place of temporary safety, the trial court properly considered the shooting when determining**  **defendant’s score under OV 1[,] OV 3” and OV 9.** Post **at 5, 10.**  **Assuming arguendo that armed robbery is a transactional offense, I still cannot agree that the trial**  **court properly scored OV 1, OV 3, and OV 9. Under a transactional view, a person can be found guilty of armed**  **robbery if, before reaching a place of temporary safety, all of the elements of armed robbery are completed.**  **However, that does not mean that an armed robbery can** never **be completed until a person has reached a place of temporary safety. In other words, although it is possible**  **that an armed robbery will not be completed until defendant has reached a place of temporary safety, it is also**  **possible that the crime will be completed before then. Here, all the elements of the armed robbery were completed**  **before defendant reached a place of temporary safety. There cannot be two endings to a crime. In other words, it**  **cannot be that the crime of armed robbery was completed once defendant stole the purse and it was also completed**  **once she reached a place of temporary safety. The crime had to have been completed at either the latter or the**  **former time. If all the elements had not been completed, we could look, under a transactional view, to defendant’s**  **conduct until she reached a place of temporary safety to establish all of the elements of the armed robbery. Here,**  **however, that is not necessary because all the elements were, in fact, completed before she reached a place of**  **temporary safety. Because the assault occurred after the armed robbery and because defendant was never convicted of**  **(continued...)**

**8 OV 1 should only have been scored at fifteen points**  **because Northington only pointed a firearm during the robbery; she did not discharge a firearm during the**  **robbery. OV 3 should have been scored at zero points because the robbery victim did not suffer from a life**  **** **threatening injury; only the assault victim suffered from a life-threatening injury. Finally, OV 9 should have been**  **scored at zero points because there was only one robbery victim; Bish was an assault victim, but not a robbery**  **victim. Therefore, I would affirm the judgment of the Court of Appeals, which concluded that the trial court**  **erred in scoring OV 1, OV 3, and OV 9, albeit on different grounds.**  **Stephen J. Markman Clifford W. Taylor** 

**(...continued) the assault, it cannot be considered when scoring OV 1, OV**  **3, and OV 9. Contrary to the majority opinion’s contention, I do**  **not determine here whether armed robbery is a transactional offense. I simply note that,**  even if **armed robbery is a transactional offense, the trial court erred in scoring OV**  **1, OV 3, and OV 9.**

**9 _______________________________**  **v S T A T E O F M I C H I G A N** 

**SUPREME COURT**

**PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,** 

**No. 124083**  **LATASHA GENISE MORSON, Defendant-Appellee.** 

**YOUNG, J.** (concurring in part and dissenting in part) **I agree with the majority that the trial court did not err when it assessed ten points for offense variable (**  **OV ) 9.**  **The language of MCL 777.39(2)(a) clearly states that** each **person “placed in danger of injury or loss of life” is to be counted as a victim. Because a gun was fired at him,**  **James Bish was placed in danger even if he had not intervened or been injured.**  **However, I dissent from that portion of the majority opinion holding that the trial court erred in assessing**  **twenty-five points each for OV**  **1 and OV**  **3. Because I believe that the guidelines were scored correctly, I would affirm**  **the trial court’s scoring of those guidelines. I disagree with the majority's conclusion that**  **defendant was entitled to have her armed robbery scores match Northington's armed robbery scores. I believe the**  **majority's position is based on a flawed assumption regarding the "multiple offender" provision of**  **OV 1 and**  **OV 3.**  **When scoring the guidelines, the court is instructed by MCL 769.31(e)**  **1 to consider not only the**  actual **elements**

**added.] [2]**  **constituting the**  **offense, but**  **also any aggravating**  **or mitigating**  **factors** associated with **the offense**  **as designated in the guidelines:**  **"Offense characteristics" means the elements of the crime and the aggravating and mitigating**  **factors** relating to **the offense that the commission determines are appropriate and**  **consistent with the criteria described in section 33(1)(e) of this chapter. For the purposes of**  **this subdivision, an offense described in section 33b of 1953 PA 232, MCL 791.233b, that resulted**  **in a conviction and that arose out of the same transaction**  **as the**  **offense for**  **which the**  **sentencing guidelines are being scored** shall be **considered as an aggravating factor. [Emphasis**

1 **Redesignated as subsection d in a 2002 amendment. 2002 PA 31. The amendment also designated responsibility**  **to the "legislature" instead of the "commission."**

**2 The second sentence of MCL 769.31(e), which is not at**  **issue in this case,** mandates **the trial court to consider certain convictions as aggravating factors when they result**  **in a conviction and they arose out of the “same transaction” as the offense being scored. In instructing**  **the sentencing court to view the entire "transaction," I do (continued...)** 

2**Therefore, an “offense characteristic” clearly encompasses more than merely the offense**  **itself–it contemplates both positive and negative factors “related to,” but not**  **constituting, the charged offense. When scoring**  **OV 1, which takes into account the**  **aggravated use of a weapon, MCL 777.31(2) specifically requires a trial court to:**  **(a) Count each person who was placed in**  **danger of injury or loss of life as a victim. (b)**  **In multiple offender cases, if 1 offender is assessed points for the presence or**  **use of a weapon, all offenders shall be assessed the same number of points.**  **Likewise, when scoring OV**  **3, which assesses physical injury to a victim, MCL 777.33(2)(a) requires that:** 

**(...continued) not believe that this phrase describes the transactional**  **approach to robbery as recognized by this Court in** People v Randolph **, 466 Mich 532; 648 NW2d 164 (2002). Rather, I believe that the plain meaning of the phrase "same**  **transaction" refers to the entire criminal episode or event, not the term "transactional test," which is unique**  **to robbery cases and has** never **received legislative recognition. In fact, when the Legislature recently amended**  **the unarmed robbery statute in response to this Court’s opinion in**  Randolph **, the Legislature did not use the terms “transaction” or “transactional” in its amendment. See MCL**  **750.530 as amended by 2004 PA 128. In any event, the**  **“transactional” analysis offered by Justices C ORRIGAN AND**  **M**

**ARKMAN is irrelevant to the first sentence that applies in**  **this case.**

3**In multiple offender cases, if 1 offender is assessed points for death or physical injury, all**  **offenders shall be assessed t he same number of**  **points.**

**The majority opinion rests upon the analytical assumption that the requirement of equal scores for**  **"multiple offenders" means that identical crimes must be**  **compared to identical crimes. However, as illustrated above, the plain language of the MCL 777.31(2)(b) and MCL**  **777.33(2)(a) clearly do not require that the convicted** offenses **must be identical. Rather, the statutes contemplate the comparison of identical**  offense variable

scores **. I believe that the correct reading of the statutes requires that, to the degree that both defendants are**  **convicted of crimes requiring the scoring of OV**  **1 and OV**  **3, the second defendant would get the same**  **OV 1 and**  **OV 3 scores**  **as the first defendant. Here, defendant was scored twenty-five points for her**  **armed robbery OV**  **1 score. This score is supported by the evidence because a firearm was discharged at or toward**  **James Bish, and the discharge of the firearm was an aggravating factor**  related to **the armed robbery. Defendant's**  **OV 1 score for use of a weapon coincides with**  **Northington's OV**  **1 score for use of a weapon, as shown in the table below.** 

4**Additionally, defendant was scored twenty-five points for her**  **OV 3 score. This score is supported by the evidence**  **because of the life-threatening gunshot injury suffered by James Bish, which was an aggravating factor**  related to **the armed robbery. Defendant’s**  **OV 3 score of twenty-five points**  **for physical injury to a victim is identical to Northington’s**  **OV 3 score for physical injury to a victim, as**  **shown in the table below:**

**DEFENDANT & OFFENSE**  **OV 1**  **Aggravated use of weapon**  **OV 3**  **Physical injury to victim**  **Northington Assault with intent**  **to murder 25 points**  **25 points**

**Northington Armed robbery**  **15 points 0 points** 

**Morson Armed robbery**  **25 points 25 points** 

**The majority errs in simply comparing identical convictions. However, as noted above, the directives**  **contained in OV**  **1 and OV**  **3 do not require equality of criminal convictions—they merely necessitate that the**  **offense variables be scored identically. Because defendant received the same**  **OV 1 and**  **OV 3 scores as her cohort, I do** 

5**not believe that defendant is entitled to resentencing. 3**  **As Chief Justice Corrigan**  **notes in her concurring opinion, there is an arguable tension between the**  **sentencing instructions requiring assessment of the highest number of points shown by the evidence and the instruction**  **included in some offense variables directing the court to assess equal**  **OV points in multiple offender situations.**  **However, I believe that enforcing the statute as written, which instructs a sentencing court to compare offense** 

3 **Contrary to the majority's conclusion, the analysis I advocate is not inconsistent with MCL 777.21(2).**  **The trial court is still required to score each convicted offense, but is permitted, under the clear language of the**  **statute, to consider aggravating factors “related to” the convicted charge. In addition, the Legislature specifically**  **contemplated different defendants being convicted of different offenses, as evidenced**  **by the instruction that offense variables be scored the same for "multiple**  **offenders," rather than limiting its instruction to offenders convicted of identical offenses.**  **While my approach is considered “illogical” by the majority, I believe that it best adheres to the plain**  **language of the statute. When the language is clear, it is my responsibility to simply apply the facts to the law. The**  **genesis of the error in this case is the trial court's decision to disregard the law when it sentenced Iesha**  **Northington. The trial court failed to consider the facts of both convictions under the second sentence of MCL**  **769.31(e) when sentencing Northington, and failed to assess the highest number of points for**  **OV 1 and**  **OV 3 that the**  **evidence supported. See MCL 777.31(1) ( OV**  **1); MCL 777.33(1) (**  **OV 3). When the trial court failed to follow the law, it**  **injected an error that defendant now seeks to perpetuate.**

6**variable to like offense variable, promotes both accuracy and equality in the scoring of the guidelines.**  **4 For the reasons stated herein, I dissent from that**  **portion of the majority opinion holding that the trial court erred in scoring offense variables 1 and 3. Because I**  **believe that the guidelines were scored correctly, I would reverse the Court of Appeals judgment and reinstate the**  **sentence imposed by the circuit court. Robert P. Young, Jr.** 

4 **While my interpretation and application of the statute does not prevail in this case, I note that, if**  **factors arising before or after the offense cannot be calculated in the guidelines, they are certainly relevant**  **sentencing factors not adequately contemplated by the guidelines. If these factors**  **are substantial and compelling, a sentencing court may utilize those factors in**  **imposing an upwardly departing sentence.** People v Babcock **, 469 Mich 247; 666 NW2d 231 (2003).** 

7