                            STATE OF MICHIGAN

                             COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 11, 2018
                 Plaintiff-Appellee,
V                                                                    No. 336817
                                                                     Grand Traverse Circuit Court
CHARESE LOUISE ARNOLD,                                               LC No. 16-012412-FC

                 Defendant-Appellant.


Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as on leave granted1 her sentence of 20 to 35 years’ imprisonment for
her plea-based conviction of conspiracy to deliver 450 or more but less than 1,000 grams of
heroin or cocaine, MCL 750.157a and MCL 333.7401(2)(a)(ii), as a second-offense habitual
offender, MCL 769.10. Because offense variable (OV) 15 was improperly scored, resulting in an
alteration of the applicable sentencing guidelines range, we vacate defendant’s sentence and
remand this case to the trial court for resentencing.

        Defendant admitted that she had been running an operation with others to traffic in illegal
drugs. Her assistants delivered the drugs from Detroit to other towns, including Traverse City,
where still others distributed them. The prosecution initially brought 13 charges in connection
with this criminal activity, including a charge of conspiracy to deliver 1,000 grams or more of
heroin or cocaine, MCL 333.7401(2)(a)(i). Defendant pleaded guilty to Count II, conspiracy to
deliver 450 or more but less than 1,000 grams of heroin or cocaine, as well as to being a second-
offense habitual offender. In exchange, the prosecution dismissed the remaining charges and
amended its fourth-offense habitual offender notice.

        The sole issue on appeal is whether 100 points were properly scored for OV 15
(aggravated controlled substance offenses). Issues involving “the proper interpretation and
application of the legislative sentencing guidelines . . . are legal questions” that are reviewed de
novo on appeal. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004). We conclude
that only 75 points should have been assessed for OV 15.


1
    See People v Arnold, 501 Mich 940; 904 NW2d 421 (2017).


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       OV 15 concerns aggravated controlled substance offenses. MCL 777.45(1)(a) prescribes
100 points where the sentencing offense “involved the manufacture, creation, delivery,
possession, or possession with intent to manufacture, create or deliver” 1,000 or more grams of
schedule 1 or 2 drugs,2 and MCL 777.45(1)(b) prescribes 75 points where the quantity at issue
was “450 grams or more but less than 1,000 grams.”

        In this case, the parties agreed at sentencing that 75 points should be scored for OV 15.
The trial court asked why it was not scored at 100 points, in light of evidence that defendant had
been involved in the delivery of well over 1,000 grams of heroin or cocaine. The prosecuting
attorney opined that People v Gray, 297 Mich App 22; 824 NW2d 213 (2012), required that OV
15 be scored solely on the basis of the conduct underlying the guilty plea, without regard to the
additional facts of the case. The trial court disagreed and determined that 100 points should be
assessed for OV 15, distinguishing the facts of the present case from those of Gray and related
caselaw on the ground that the other cases involved drugs that were found after the sentencing
offense and were therefore not covered by the guilty plea.

        “[T]he appropriate offense variables are generally to be scored on the basis of the
sentencing offense.” People v Sargent, 481 Mich 346, 348; 750 NW2d 161 (2008). “Offense
variables must be scored giving consideration to the sentencing offense alone, unless otherwise
provided in the particular variable.” People v McGraw, 484 Mich 120, 133; 771 NW2d 655
(2009). Accordingly, unless otherwise provided in the particular variable being scored, the trial
court may not consider conduct underlying a charge that was dismissed as part of a plea
agreement. See id. at 133-134. This is true even if the conduct constituting the sentencing
offense and the dismissed counts occurred simultaneously. See Gray, 297 Mich App at 34.

        In Gray, 297 Mich App 22, this Court considered the implications of McGraw in
connection with the scoring of OV 15. After the defendant in Gray was pulled over for a traffic
violation, police discovered less than one gram of cocaine in his car. Later, upon execution of a
search warrant, police discovered 64 additional grams of cocaine in his motel room. Gray, 297
Mich App at 24 & n 1, 25. The defendant pleaded guilty to one count of possession with intent
to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), one count of operating a
motor vehicle while having a controlled substance in his body (marijuana), MCL 257.625(8), and
one count of interfering with or influencing a witness, MCL 750.122(3), in exchange for the
dismissal of several charges, including possession with intent to deliver 50 grams or more, but
less than 450 grams, of cocaine, MCL 333.7401(2)(a)(iii). Id. at 23-25. There was “no dispute
that the cocaine possession charge to which defendant pleaded guilty was predicated on the
cocaine in the car, not the cocaine in the motel room, and that the cocaine in the motel room
formed the basis for other charges that were dropped as part of the plea deal.” Id. at 25. The
trial court scored 50 points for OV 153 by taking into account the drugs found in both locations.


2
    Heroin and cocaine are schedule 1 drugs under MCL 333.7212.
3
 Fifty points are assessed for OV 15 when “[t]he offense involved the manufacture, creation,
delivery, possession, or possession with intent to manufacture, create, or deliver of 50 grams or
more but less than 450 grams of any mixture containing a controlled substance classified in


                                               -2-
Id. at 26. The trial court attempted to distinguish McGraw on the basis that it concerned events
that took place after the conclusion of the sentencing offense, whereas in the case before it the
defendant simultaneously possessed the cocaine that was in the car and in the motel room. Id. at
27-28.

       This Court disagreed, holding that “it was improper for the trial court to take into
consideration in scoring OV 15 amounts of cocaine related to dismissed counts but wholly
unrelated to the cocaine possession ‘sentencing offense’ to which defendant pleaded guilty.” Id.
at 24. Even assuming that the trial court had correctly determined that the defendant had
possessed all of the cocaine at once,

       McGraw still requires a court to separate the conduct forming the basis of the
       sentencing offense from the conduct forming the basis of an offense that was
       charged and later dismissed or dropped, regardless of the sequence in which the
       conduct transpired. The conduct associated with possessing the cocaine in the
       motel room formed the basis of some of the dismissed charges, and the conduct
       associated with possessing the cocaine in the motor vehicle formed the basis of
       the cocaine possession sentencing offense. Under McGraw, the conduct must be
       considered separately in relationship to scoring OV 15, and the conduct related to
       the cocaine possessed in the motel room, which conduct was forgiven as part of
       the plea agreement, could not be considered in scoring OV 15. [Gray, 297 Mich
       App at 31, 33-34.]

This Court further noted that “[i]f the prosecution wished defendant to be punished for
possessing the cocaine in the motel room, it should not have dismissed the charges linked to that
cocaine.” Id. at 32. Because the reduction in the score for OV 15 resulted in an alteration of the
sentencing guidelines range, resentencing was required. Id. at 34.

       The present case is not distinguishable from Gray. The trial court’s reasoning that
defendant possessed more than 450 grams in the course of the criminal conduct for which she
was being sentenced was similar to the trial court’s reasoning in Gray that the defendant was in
possession of the cocaine in the motel and in the car at the same time. However, as stated in
Gray, McGraw requires a sentencing court to separate the conduct that constitutes the sentencing
offense from the conduct constituting any counts that were dismissed pursuant to a plea
agreement.4 It would be “fundamentally unfair” to allow the prosecution to drop the charge of
conspiracy to deliver more than 1,000 grams “while brokering a plea bargain, then resurrect it at
sentencing in another form.” McGraw, 484 Mich at 134. Because defendant’s sentencing
offense involved “450 grams or more but less than 1,000 grams” of a controlled substance, only
75 points should have been scored for OV 15. MCL 777.45(1)(b).


schedule 1 or 2 that is a narcotic drug or a drug described in [MCL 333.7214(a)(iv)] . . . .” MCL
777.45(1)(c).
4
 However, conduct outside the sentencing offense may be considered for such other purposes as
determining whether to depart from the guidelines recommendation. McGraw, 484 Mich at 129.


                                               -3-
        Employing a 75-point score for OV 15, the guidelines’ recommendation for defendant’s
minimum sentence was 135-281 months, but the trial court’s upward adjustment of the score for
OV 15 produced a range of 171-356 months. A “misapprehension of the guidelines range”
results in a sentencing decision “in reliance upon inaccurate information.” People v Francisco,
474 Mich 82, 88, 89 n 7; 711 NW2d 44 (2006). See also MCL 769.34(10).

        For these reasons, we vacate defendant’s sentence and remand for resentencing consistent
with this opinion. We do not retain jurisdiction.



                                                           /s/ William B. Murphy
                                                           /s/ David H. Sawyer
                                                           /s/ Brock A. Swartzle




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