                                                                                      Michigan Supreme Court
                                                                                            Lansing, Michigan




Syllabus
                                                             Chief Justice:               Justices:
                                                              Bridget M. McCormack        Stephen J. Markman
                                                                                          Brian K. Zahra
                                                             Chief Justice Pro Tem:
                                                                                          Richard H. Bernstein
                                                              David F. Viviano            Elizabeth T. Clement
                                                                                          Megan K. Cavanagh

This syllabus constitutes no part of the opinion of the Court but has been                Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                  Kathryn L. Loomis



                                             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
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
                                                                           Michigan Supreme Court
                                                                                 Lansing, Michigan




OPINION
                                                 Chief Justice:                 Justices:
                                                  Bridget M. McCormack          Stephen J. Markman
                                                                                Brian K. Zahra
                                                 Chief Justice Pro Tem:         Richard H. Bernstein
                                                  David F. Viviano              Elizabeth T. Clement
                                                                                Megan K. Cavanagh


                                                                  FILED May 7, 2019



                             STATE OF MICHIGAN

                                      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.
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.



                                               2
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 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 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.



                                              3
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.



                                                 4
         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.”).



                                               5
         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).


                                                 6
                 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.



                                                7
       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


                                            8
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.


                                             9
