PEOPLE v CARTER Docket No. 156606. Argued on application for leave to appeal M arch 7, 2019. Decided May 7, 2019. Alonzo Carter was convicted following a jury trial in the Wayn e Circuit Court, Vonda R. Evans, J., of assault with intent to do great bodily harm (AWIG BH), MCL 750.84; felon in possession of a firearm (felon- in-possession), MCL 750.224f; in tentional discharge of a firearm at a dwelling, MCL 750.234b; felonious assault, MCL 750.82; and carrying or possessing a firearm when committing or attempting to commit a felony (felon y-firearm) second offense, MCL 750.227b. In January 2015, defendant was involved in a ver bal altercation with Lawrence Sewell outside Sewell’s apartment. Later that evening, defenda nt returned to Sewell’s apartment and attempted to lure Sewell to the door by impersonating a mai ntenance worker. Sewell looked through the door’s peephole and saw defendant waiting outside w earing a ski mask and holding a firearm. Sewell did not allow de fendant to enter, and defendan t fired three shots through the apartment door at chest level. Two shots skipped off the apart ment floor and through a window, while another punctured an air mattress on which an infant chil d slept. None of the apartment’s occupants was shot. Defendant was convicted as a fourth-offens e habitual offender, and the trial court sentenced him to concurrent prison terms of 5 to 10 years for AWIGBH, 1 to 5 years for felon-in-possession, 1 to 10 years for intentional discharge of a firearm at a dwelling, and 1 to 4 years for felonious assault, all to be served consecutively to a two-year prison sentence (later corrected to a five-year prison sentence) for felony-firearm. Defendant moved to remand in the Court of Appeals, objecting to the assessment of points under P rior Record Variable (PRV) 1 (prior high severity felony convictions), MCL 777.51; Offense V ariable (OV) 4 (psychological injury to the victim), MCL 777.34; and OV 12 (contemporaneous f elonious acts), MCL 777.42. The Court of Appeals denied the motion. Defendant appealed in the Court of Appeals, contesting the trial court’s scor ing of the three sentencing va riables. The prosecution conceded error with regard to the points assessed under OV 4 and PRV 1, but the prosecution defended the 10 points assessed under OV 12. In an unpublished per curiam o pinion issued on June 27, 2017 (Docket No. 331142), the Court of Appeals, J ANSEN , P.J., and M URPHY and B ORRELLO , JJ., affirmed the scoring of OV 12, reasoning that each pull of the trigger was a separate act and that because only one act was needed to convict defendant, the other two acts of pulling the trigger constituted contemporaneous felonious criminal acts. Because r emoval of the points that were incorrectly assessed under OV 4 a nd PRV 1 did not affect the ap plicable guidelines minimum sentence range, the Court of Appe als did not order resentencing . Defendant sought leave to Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack

C hief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh This syllabus constitutes no part of the opinion of the Court b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. Loomisappeal in the Supreme Court, which ordered and heard oral argum ent on whether to grant the application or take ot her action. 501 Mich 1089 (2018). In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to appeal, held : OV 12 is governed by MCL 777.42, which states that it is appro priate to assess an offender 10 points when two cont emporaneous felonious criminal acts involving crimes against a person were committed. MCL 777.42(2)(a) provides that when ass essing points under OV 12, a felonious criminal act is contem poraneous if both of the follow ing circumstances exist: ( i ) the act occurred within 24 hours of the sentencing offense, and ( ii ) the act has not and wi ll not result in a separate conviction. Because the Legislature used the word “ac t” in one portion of MCL 777.42(2)(a)( i ) and the phrase “sentencing offense” later in the same sentenc e, the Legislature intended to draw a distinction between the two; what matters is whether the “sentencing offense” can be separated from other distinct “acts.” In the context of OVs, “sentencing offense” is defined as the crime of which the defendant has been convicted and for which he or she is being sentenced. In this case, the sentencing offense was AWIGBH, an d a finding that two of the gunshots were not part of the sentencing offense could not be s upported by the evidence because the record showed that the pros ecution relied on all three guns hots as evidence of defendant’s intent to inflict great bodily harm. Those same three gunshots could not then be used to establish separate “acts” that occurred within 24 hours of the “sentencin g offense” under MCL 777.42(2)(a)( i ). Accordingly, it was inappropriate for the Court of Appeals to distinguish two gunshots from the conduct constituting the sentencing offense. Importantly, this holding was limited to the facts of this case; circumstances might exist un der which multiple gunshots may constitute separate “acts” that are distinguishable from the “s entencing offense,” but this case did not present those circumstances. Finally, reduction of defenda nt’s variable score to account for the improper assessment of points under OV 12 altered the recom mended guidelines minimum sentence range; although defenda nt’s sentence fell within the p roper guidelines range, defendant was entitled to resentencing under accurately scored offense va riables because the scoring error was relied upon by the trial court and the issue was properly p reserved. Court of Appeals opinion reverse d to the extent that it upheld the assessment of points under OV 12, trial court’s judgment of sentence vacated, and ca se remanded to the trial court for resentencing on the basis of accurately scored offense variable s.

©2019 State of MichiganFILED May 7, 2019

S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 156606 ALONZO CARTER, Defendant-Appellant.

P ER C URIAM

. Defendant, Alonzo Carter, fired three shots through the door of an apartment he knew to be occupied. He was co nvicted by a jury of, among othe r things, assault with intent to do great bodily harm (AWIGBH). 1 At issue in this case is whether each separate pull of the trigger constitutes a separate “act” under Offense Variable (OV) 12 (contemporaneous felonious acts). 2 Because the evidence does not support the conclusion

1 MCL 750.84.

2 MCL 777.42. Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 that the jury considered only on e shot when deliberating over t he elements of AWIGBH, we hold that it was inappropriate to assess defendant 10 points under OV 12. Further, because reducing defe ndant’s OV score to rectify this error wou ld reduce the applicable guidelines range, resent encing is required. 3 In January 2015, defendant lived in the same apartment building as Lawrence Sewell. A young woman and her in fant child lived with Sewell a s well. On January 11, 2015, defendant and Sewell were involved in a verbal altercatio n outside Sewell’s apartment, but it did not escalate any further at that time. T hat evening, however, defendant returned to Sewell’s apartment an d attempted to lure Sewell to the door by impersonating a maintenance worker. Sewell lo oked through the door’s peephol e and saw defendant waiting outside wearing a ski mask and holding a firearm. Sewe ll did not allow defendant to enter, and defendant fired three shots through the apartment door at chest level. Two shots skipped off the apartment floor and through a window, whi le another punctured an air mattress on which the infant child slept. None of the apar tment’s occupants was shot. Defendant was identified as the s hooter and charged as a fourth -offense habitual offender with assau lt with intent to murder (AWIM), 4 AWIGBH, 5 felon in possession of a firearm (felon-in-possession), 6 intentional discharge of a firearm at a dwelling, 7 felonious

3 See People v Francisco , 474 Mich 82, 89-90; 7 11 NW2d 44 (2006).

4 MCL 750.83.

5 MCL 750.84.

6 MCL 750.224f.

7 MCL 750.234b.3 assault, 8 and carrying or possessing a fi rearm when committing or attemp ting to commit a felony (felony-firearm) second offense. 9 A jury acquitted de fendant of AWIM but convicted him of all other charges. At sentencing, defense counsel d id not make any objections or r equest corrections to the scoring of the sentenci ng guidelines. Accordingly, the trial court sentenced defendant to concurrent prison terms of 5 to 10 years for AWIGB H, 1 to 5 years for felonin-possession, 1 to 10 years for intentiona l discharge of a fir earm at a dwelling, and 1 to 4 years for felonious assault, all to be served consecutively to a two-year prison sentence for felony-firearm. 10 Defendant filed a motion to remand in the Court of Appeals, obj ecting to the assessment of points under Prior Record Variable (PRV) 1 (prior high severity felony convictions), 11 OV 4 (psychological injury to the victim), 12 and OV 12. The motion was denied. In his brief on appeal , defendant continued to contest the trial court’s scoring under these three sentencing variables. The prosecution conceded err or with regard to the points assessed under OV 4 and also con ceded that PRV 1 should have be en scored at 50 points,

8 MCL 750.82.

9 MCL 750.227b.

10 Shortly after sentencing, the parties stipulated on the record that defendant had been improperly sentenced on the felony-firearm conviction. The tri al court resentenced defendant on that count to the mandatory consecutive prison ter m of five years.

11 MCL 777.51.

12 MCL 777.34.4 rather than the 75 points asses sed in the trial court. Nonethe less, the prosecution continued to defend the 10 point s assessed under OV 12. In an unpublished per curiam opinion, the Court of Appeals affi rmed the scoring of OV 12, reasoning that “[e]ach time defendant pulled the trigger was a separate act, and only one [act] was needed to convict him. Thus, the other two acts of pulling the trigger would be contemporaneous felonious criminal act[s] . . . .” 13 Because removal of the points that were incorrectly assessed under OV 4 and PRV 1 did not affect the applicable guidelines range, the panel did not order resentencing. 14 Defendant now seeks leave to appeal in this Court, once again challenging the 10-point asses sment under OV 12 and seeking resentencing. We granted oral argument to determine wh ether to grant the application or take other action. 15
A trial court’s factual determin ations at sentencing are review ed for clear error and need only be supported by a preponderance of the evidence. 16 Whether the facts, as found, are adequate to warrant the ass essment of points under the pert inent OVs and PRVs is a question of statutory interpreta tion, which this Court reviews de novo. 17

13 People v Carter , unpublished per curiam opinion of the Court of Appeals, issue d June 27, 2017 (Docket No . 331142), p 3.

14 Id . Defendant moved for reconsideration, and the Court of Appeal s denied defendant’s motion in August 2017. People v Carter , unpublished order of the Court of Appeals, entered August 15, 2017 (Docket No. 331142).

15 People v Carter , 501 Mich 1089 (2018). See also MCR 7.305(H)(1).

16 People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013).

17 Id

.5 OV 12 is governed by MCL 777.42, which states that it is approp riate to assess an offender 10 points when “[t]wo contemporaneous felonious crimin al acts involving crimes against a person were committed.” 18 In assessing any points under this particular variable, the pertinent portion of MCL 777.42 provides: (2) All of the following apply to scoring offense variable 12: (a) A felonious criminal act is contemporaneous if both of the following circumstances exist: ( i ) The act occurred within 24 hours of the sentencing offense

. ( ii ) The act has not and will not re sult in a separate conviction. [19] The prosecution would have us c onclude that each gunshot consti tuted a separate “act” and that the “sentencing offense” 20 was premised exclusively on a single shot. Because the Legislature used the word “act” in one portion of M CL 777.42(2)(a)( i ) and the phrase “sentencing offense” late r in the same sentence, we must presume it intended to draw a distinction between the two. 21 Nevertheless, the Legislature does not define “sentencing offense” or “act” for purposes of assessing points under this or any offense variable.

18 MCL 777.42(1)(b).

19 MCL 777.42(2)(a) (emphasis added).

20 See id

.
21 See US Fidelity & Guaranty Co v Mich Ca tastrophic Claims A ss’n (On Rehearing) , 484 Mich 1, 14; 795 NW2d 101 (2009) ( “When the Legislature uses dif ferent words, the words are generally intended to connote different meanings.”).6 The parties focus much of their argument on whether each separa te discharge of defendant’s firearm could have constituted a different assaulti ve offense; but as the Court of Appeals held in People v Light , a determination of whether an offender has engaged in multiple “acts” for purposes of OV 12 does not depend on whethe r he or she could have been charged with other offenses for the same conduct. 22 What matters, instead, is whether the “sentencing offense” can be separated from other distinct “ acts.” 23 This Court has previously defined “sentencing o ffense” in the context of OVs a s “the crime of which the defendant has been convicted and for which he or she is being s entenced.” 24 Thus, the “sentencing offense” which primarily informs our decision is AW IGBH, for which defendant received a controlling term of 5 to 10 years’ impriso nment. We have therefore examined the record to determine whether factual support for de fendant’s AWIGBH conviction was established on t he basis of all three gunshots o r only one. The most revealing portion of the record pertains to the prosec ution’s closing argument: So, for the first count of assault with intent to murder, I hav e to show you, first, that the defendant tri ed to physically injure anoth er person. I submit to you that that is obvious. If you shoot three times , through a door, chest level, right after the latch on the door has clic ked, you are trying to physically injure another person.

22 People v Light , 290 Mich App 717, 725-7 26; 803 NW2d 720 (2010).

23 See id .; MCL 777.42(2)(a)( i ).

24 People v McGraw , 484 Mich 120, 122 n 3; 771 NW2d 655 (2009).7 Second, that when the defendant committed the assault, he had t he ability to cause an injury, or at least believed that he had th e ability to cause an injury. Three shots to the chest is the ability to cause an injury to somebody. There is no doubt but that shoo ting a gun at somebody is going to injure them. * * * I submit to you that it’s obvious , his intent, by waiting until someone is at the door, and hearing the latch click, and then shooting three times , chest level, through that door; that he was trying to kill the person that earlier in the day he told to sta y out of his . . . business. Now, the second count, it’s a le sser. It’s called assault with intent to do great bodily harm less than murder. You can consider this i f for some reason you don’t think his intent was murder. It’s basically t he same charge, other than you think he intended to commit great bodily harm le ss than murder instead of murder. But, again, as I submitted to you, three shots , chest level, through a door. You’re trying to kill somebody. This count two is somet hing you can consider, instead, if you think his intent was to commit great bodily harm less than murder. [25] Given that, in this case, the prosecution relied on all three g unshots as evidence of defendant’s intent to commit mu rder or inflict great bodily har m, a finding that two of the gunshots were not part of the sen tencing offense cannot be supp orted by the evidence. 26 Consequently, it was inappropriate for the Court of Appeals to distinguish two gunshots from the conduct constituting the “sentencing offense.” 27

25 Emphasis added.

26 See Hardy , 494 Mich at 438.

27 See id

.8 The prosecution insists that the 10-point assessment under OV 1 2 remains appropriate because def endant could have been charged with sepa rate offenses relating to the young woman or her infant child. It might be true that def endant could have been charged with assaultive offenses relating to the woman and her child, 28 but this does not resolve the relevant inquiry. A s previously stated, the prosec ution relied on all three gunshots to establish the intent element of the “sentencing off ense.” Those same three gunshots cannot then be used to establish separate “acts” that occurred within 24 hours of the “sentencing offense” under MCL 777.42(2)(a)( i ). 29 We limit our holding to these facts because the prosecution re lied on all three gunshots to establish an element of the “sentencing offense.” By no means do we suggest that there can be no circumstan ces under which m ultiple gunshot s may constitute separate “acts” that are distinguishable from the “sentencing offense.” But we are not confronted with such facts in this case. Reducing defendant’s variable s core to account for the imprope r assessment of points under OV 12 alters the recommended minimum guidelines ra nge. 30 Although

28 Cf. People v Raher , 92 Mich 165, 166; 52 NW 625 (1892) (“It has been held that wh ere a prisoner fired a gun in the dir ection of a crowd he was guilt y of assault upon each.”).

29 To hold otherwise would render Subdivision (a)( i ) a nullity as applied in this case, and we will not interpret a statute in such a manner as to treat an y word as nugatory or mere surplusage

. See Badeen v PAR, Inc , 496 Mich 75, 81; 853 NW2d 303 (2014). Further, because the prosecution failed to demonstrate any additional “a cts” that occurred within 24 hours of the “sentencing offense, ” there is no need to consider whether such “acts” have or will result in a separate convic tion as required under MCL 777. 42(2)(a)( ii ).

30 AWIGBH is a Class D offense. See MCL 777.16d. According to h is presentence investigation report, defendant was initially assessed 127 poin ts under the pertinent PRVs and 60 points under the pertin ent OVs. After the Court of Appe als held that defendant9 defendant’s sentence falls within the proper guidelines range, defendant is entitled to resentencing under accurately sco red offense variables because the scoring error was relied upon by the trial court and the issue was properly preserved. 31 We therefore reverse the Court of Appeals’ unpublished per curiam opinion to the extent that it upheld the assessment of points under OV 12, vacate the trial court’s judg ment of sentence, and remand the case to the trial court for resentencing on the basi s of accurately scored offense variables.

Bridget M. McCormack Stephen J. Markman Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

should have been assessed 25 fewer points under PRV 1 and zero points under OV 4, defendant’s PRV and OV assessments sat at 102 and 50 points, re spectively. Because defendant was convicted as a fourth-offense habitual offender, see MCL 769.12, his minimum sentence range under the guidelines was 38 to 152 month s’ imprisonment. See MCL 777.65. With the reduction of points that would result fro m an order consistent with this analysis, defendant’s reco mmended minimum sentence range w ould be 34 to 134 months’ imprisonment. See id

. 31 Francisco , 474 Mich at 92 (“Because defendant’s sentence here is based u pon an inaccurate calculation of the gui delines range and is, therefor e, inconsistent with the law, defendant is entitled to be resentenced.”). Notably, as stated earlier, defendant preserved his challenge to the assessment of points under OV 12 by filing a proper motion for remand. See id

. at 88-91.