Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  July 19, 2019                                                                   Bridget M. McCormack,
                                                                                                Chief Justice

  156502                                                                               David F. Viviano,
                                                                                       Chief Justice Pro Tem

                                                                                     Stephen J. Markman
                                                                                          Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Richard H. Bernstein
            Plaintiff-Appellee,                                                     Elizabeth T. Clement
                                                                                    Megan K. Cavanagh,
                                                                                                     Justices
  v                                                       SC: 156502
                                                          COA: 332307
                                                          Kalamazoo CC: 2014-000203-FC
  ANTJUAN PIERRE JACKSON,
           Defendant-Appellant.

  _____________________________________/

         On May 7, 2019, the Court heard oral argument on the application for leave to
  appeal the July 25, 2017 judgment of the Court of Appeals. On order of the Court, the
  application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal,
  we REVERSE in part the judgment of the Court of Appeals, VACATE the sentence of
  the Kalamazoo Circuit Court, and REMAND this case to that court for resentencing.

         MCL 777.19 provides that, in addition to the enumerated felonies in part II,
  attempts to commit certain enumerated felonies are to be sentenced under the guidelines
  if the attempt constitutes a felony. Thus, MCL 777.19 is of course a relevant
  consideration when the sentencing offense (unlike in this case) is an attempt. MCL
  777.19 is also relevant to identify the offense classification of a prior attempt conviction
  for purposes of scoring Prior Record Variable (PRV) 1, MCL 777.51, and PRV 2, MCL
  777.52, which expressly incorporate the sentencing guidelines’ offense classifications.
  See People v Wright, 483 Mich 1130 (2009).

          In contrast to PRV 1 and PRV 2 (as well as other sentencing guidelines variables),
  Offense Variable (OV) 13, MCL 777.43, does not expressly incorporate the sentencing
  guidelines’ offense classifications. Rather, OV 13 is scored for “felonious criminal
  activity”—that is, prior conduct that meets the definition of a felony, “regardless of
  whether the offense resulted in a conviction.” MCL 777.43(2)(a). The Code of Criminal
  Procedure defines a “felony” as “a violation of a penal law of this state for which the
  offender . . . may be punished by imprisonment for more than 1 year or an offense
  expressly designated by law to be a felony.” MCL 761.1(f).
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        A prior conviction for attempted resisting and obstructing does not, on its face,
establish felonious criminal activity. The defendant’s convictions for attempted resisting
and obstructing were not punishable with imprisonment for more than one year, see MCL
750.81d(1), MCL 750.92(3), and MCL 750.479(2). And MCL 777.19 does not
“expressly designate[]” the defendant’s attempt convictions to be felonies. MCL
761.1(f). The Court of Appeals erred when it held otherwise in People v Mosher,
unpublished per curiam opinion of the Court of Appeals, issued January 23, 2014
(Docket No. 312996). Thus, the Court of Appeals’ reliance on Mosher here was error.
Accordingly, on remand, the sentencing court shall determine in the first instance
whether the defendant’s conduct in attempting to violate MCL 750.81d or MCL 750.479,
when combined with the sentencing offense, establishes “a pattern of felonious criminal
activity involving 3 or more crimes against a person” for purposes of scoring OV 13.
MCL 777.43(1)(c).

      We do not retain jurisdiction.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         July 19, 2019
       t0716
                                                                             Clerk
