PEOPLE v CARTER

Docket No. 156606. Argued on application for leave to appeal March 7, 2019. Decided 

May 7, 2019. 

 Alonzo Carter was convicted following a jury trial in the Wayne Circuit Court, Vonda R. 

Evans, J., of assault with intent to do great bodily harm (AWIGBH), MCL 750.84; felon in 

possession of a firearm (felon-in-possession), MCL 750.224f; intentional 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 (felony-firearm) second offense, 

MCL 750.227b. In January 2015, defendant was involved in a verbal altercation with Lawrence 

Sewell outside Sewell’s apartment. Later that evening, defendant returned to Sewell’s apartment 

and attempted to lure Sewell to the door by impersonating a maintenance worker. Sewell looked 

through the door’s peephole and saw defendant waiting outside wearing a ski mask and holding a 

firearm. Sewell 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, 

while another punctured an air mattress on which an infant child slept. None of the apartment’s 

occupants was shot. Defendant was convicted as a fourth-offense 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 Prior Record Variable (PRV) 1 

(prior high severity felony convictions), MCL 777.51; Offense Variable (OV) 4 (psychological 

injury to the victim), MCL 777.34; and OV 12 (contemporaneous felonious acts), MCL 777.42. 

The Court of Appeals denied the motion. Defendant appealed in the Court of Appeals, 

contesting the trial court’s scoring of the three sentencing variables. 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 In an unpublished per curiam opinion issued on June 27, 2017 

(Docket No. 331142), the Court of Appeals, JANSEN, P.J., and MURPHY and BORRELLO, 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 removal of the points that were 

incorrectly assessed under OV 4 and PRV 1 did not affect the applicable guidelines minimum 

sentence range, the Court of Appeals did not order resentencing. Defendant sought leave to 

Michigan Supreme Court 

Lansing, Michigan

Syllabus Chief Justice: 

Bridget M. McCormack 

Chief 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 but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

Kathryn L. Loomis 
appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the 

application or take other 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 appropriate to assess an 

offender 10 points when two contemporaneous felonious criminal acts involving crimes against a 

person were committed. MCL 777.42(2)(a) provides that when assessing points under OV 12, a 

felonious criminal act is contemporaneous if both of the following circumstances exist: (i) the act 

occurred within 24 hours of the sentencing offense, and (ii) the act has not and will not result in a 

separate conviction. Because the Legislature used the word “act” in one portion of MCL 

777.42(2)(a)(i) and the phrase “sentencing offense” later in the same sentence, 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, and a finding that two of the 

gunshots were not part of the sentencing offense could not be supported by the evidence because 

the record showed that the prosecution relied on all three gunshots 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 “sentencing 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 under which multiple gunshots may 

constitute separate “acts” that are distinguishable from the “sentencing offense,” but this case did 

not present those circumstances. Finally, reduction of defendant’s variable score to account for 

the improper assessment of points under OV 12 altered the recommended guidelines minimum 

sentence range; although defendant’s sentence fell within the proper guidelines range, defendant 

was entitled to resentencing under accurately scored offense variables because the scoring error 

was relied upon by the trial court and the issue was properly preserved. 

 Court of Appeals opinion reversed to the extent that it upheld the assessment of points 

under OV 12, trial court’s judgment of sentence vacated, and case remanded to the trial court for 

resentencing on the basis of accurately scored offense variables. 

©2019 State of Michigan 
FILED 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. 

PER CURIAM. 

Defendant, Alonzo Carter, fired three shots through the door of an apartment he 

knew to be occupied. He was convicted by a jury of, among other 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. McCormack 

Chief Justice Pro Tem: 

David F. Viviano 

Justices: 

Stephen J. Markman 

Brian K. Zahra 

Richard H. Bernstein 

Elizabeth T. Clement 

Megan K. Cavanagh
 

2 

that the jury considered only one shot when deliberating over the elements of AWIGBH, 

we hold that it was inappropriate to assess defendant 10 points under OV 12. Further, 

because reducing defendant’s OV score to rectify this error would reduce the applicable 

guidelines range, resentencing is required.3

In January 2015, defendant lived in the same apartment building as Lawrence 

Sewell. A young woman and her infant child lived with Sewell as well. On January 11, 

2015, defendant and Sewell were involved in a verbal altercation outside Sewell’s 

apartment, but it did not escalate any further at that time. That evening, however, defendant 

returned to Sewell’s apartment and attempted to lure Sewell to the door by impersonating 

a maintenance worker. Sewell looked through the door’s peephole and saw defendant 

waiting outside wearing a ski mask and holding a firearm. Sewell 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, while another punctured an 

air mattress on which the infant child slept. None of the apartment’s occupants was shot. 

Defendant was identified as the shooter and charged as a fourth-offense habitual 

offender with assault 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; 711 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 firearm when committing or attempting to commit a 

felony (felony-firearm) second offense.9

 A jury acquitted defendant of AWIM but 

convicted him of all other charges. 

At sentencing, defense counsel did not make any objections or request corrections 

to the scoring of the sentencing guidelines. Accordingly, the trial court sentenced 

defendant to concurrent prison terms of 5 to 10 years for AWIGBH, 1 to 5 years for felonin-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 for 

felony-firearm.10

Defendant filed a motion to remand in the Court of Appeals, objecting 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 error with regard to the points 

assessed under OV 4 and also conceded that PRV 1 should have been 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 trial court resentenced 

defendant on that count to the mandatory consecutive prison term of five years. 

11 MCL 777.51. 

12 MCL 777.34. 
 

4 

rather than the 75 points assessed in the trial court. Nonetheless, the prosecution continued 

to defend the 10 points assessed under OV 12. 

In an unpublished per curiam opinion, the Court of Appeals affirmed 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 assessment under OV 12 and 

seeking resentencing. We granted oral argument to determine whether to grant the 

application or take other action.15

A trial court’s factual determinations at sentencing are reviewed 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 assessment of points under the pertinent OVs and PRVs is a 

question of statutory interpretation, which this Court reviews de novo.17

 

13 People v Carter, unpublished per curiam opinion of the Court of Appeals, issued June 

27, 2017 (Docket No. 331142), p 3. 

14 Id. Defendant moved for reconsideration, and the Court of Appeals 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 appropriate to assess an 

offender 10 points when “[t]wo contemporaneous felonious criminal 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 result in a separate conviction.[19] 

The prosecution would have us conclude that each gunshot constituted 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 MCL 777.42(2)(a)(i) and the 

phrase “sentencing offense” later 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 Catastrophic Claims Ass’n (On Rehearing), 484 

Mich 1, 14; 795 NW2d 101 (2009) (“When the Legislature uses different words, the words 

are generally intended to connote different meanings.”). 
 

6 

The parties focus much of their argument on whether each separate discharge of 

defendant’s firearm could have constituted a different assaultive 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 whether 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 offense” in the context of OVs as “the crime of which the 

defendant has been convicted and for which he or she is being sentenced.”24 Thus, the 

“sentencing offense” which primarily informs our decision is AWIGBH, for which 

defendant received a controlling term of 5 to 10 years’ imprisonment. We have therefore 

examined the record to determine whether factual support for defendant’s AWIGBH 

conviction was established on the basis of all three gunshots or only one. 

The most revealing portion of the record pertains to the prosecution’s closing 

argument: 

So, for the first count of assault with intent to murder, I have to show 

you, first, that the defendant tried to physically injure another 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 clicked, you are trying 

to physically injure another person. 

 

22 People v Light, 290 Mich App 717, 725-726; 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 the 

ability to cause an injury, or at least believed that he had the 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 shooting 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 stay out of his . . . business. 

Now, the second count, it’s a lesser. It’s called assault with intent to 

do great bodily harm less than murder. You can consider this if for some 

reason you don’t think his intent was murder. It’s basically the same charge, 

other than you think he intended to commit great bodily harm less 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 something 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 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.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 12 remains 

appropriate because defendant could have been charged with separate offenses relating to 

the young woman or her infant child. It might be true that defendant could have been 

charged with assaultive offenses relating to the woman and her child,28 but this does not 

resolve the relevant inquiry. As previously stated, the prosecution relied on all three 

gunshots to establish the intent element of the “sentencing offense.” 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 relied on all three 

gunshots to establish an element of the “sentencing offense.” By no means do we suggest 

that there can be no circumstances under which multiple gunshots 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 score to account for the improper assessment of 

points under OV 12 alters the recommended minimum guidelines range.30 Although 

 

28 Cf. People v Raher, 92 Mich 165, 166; 52 NW 625 (1892) (“It has been held that where 

a prisoner fired a gun in the direction of a crowd he was guilty 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 any 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 “acts” 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 conviction as required under MCL 777.42(2)(a)(ii). 

30 AWIGBH is a Class D offense. See MCL 777.16d. According to his presentence 

investigation report, defendant was initially assessed 127 points under the pertinent PRVs 

and 60 points under the pertinent OVs. After the Court of Appeals held that defendant 
 

9 

defendant’s sentence falls within the proper guidelines range, defendant is entitled to 

resentencing under accurately scored 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 judgment of sentence, and 

remand the case to the trial court for resentencing on the basis 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, respectively. 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 months’ imprisonment. See 

MCL 777.65. With the reduction of points that would result from an order consistent with 

this analysis, defendant’s recommended minimum sentence range would be 34 to 134 

months’ imprisonment. See id. 

31 Francisco, 474 Mich at 92 (“Because defendant’s sentence here is based upon an 

inaccurate calculation of the guidelines range and is, therefore, 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.