Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  January 13, 2012                                                                 Robert P. Young, Jr.,
                                                                                             Chief Justice

  143411                                                                           Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
                                                                                       Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                     Brian K. Zahra,
            Plaintiff-Appellee,                                                                   Justices

  v                                                      SC: 143411
                                                         COA: 296252
  JERMAINE LEE PEARSON,                                  Kent CC: 09-001904-FC
             Defendant-Appellant.
  ____________________________________/

          On order of the Court, the application for leave to appeal the May 24, 2011
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we REVERSE the portion of the judgment of the Court
  of Appeals affirming the trial court’s scoring of Offense Variable (OV) 13 and we
  REMAND this case to the Kent Circuit Court for resentencing. On remand, we instruct
  the trial court to assess zero points for OV 13. In all other respects, leave to appeal is
  DENIED, because we are not persuaded that the remaining questions presented should be
  reviewed by this Court.

          The trial court scored 25 points under OV 13. Pursuant to MCL 777.43(1)(c), 25
  points should be scored under OV 13 when “the offense was part of a pattern of felonious
  criminal activity involving 3 or more crimes against a person” (emphasis added). The
  three offenses upon which the trial court relied in assessing 25 points for OV 13 included
  defendant’s convictions of armed robbery, unlawful imprisonment, and conspiracy to
  commit armed robbery. Both armed robbery and unlawful imprisonment are legislatively
  classified as “crime[s] against a person.” MCL 777.16y; MCL 777.16q. However,
  conspiracy is classified as a “crime against public safety.” MCL 777.18. In People v
  Bonilla-Machado, 489 Mich 412 (2011), this Court recently held that for purposes of
  scoring OV 13, a “crime against public safety” may not be transformed into a “crime
  against a person,” in order to establish a continuing pattern of criminal behavior under
  OV 13. That rationale applies here. Therefore, the trial court erred in scoring OV 13
  because there were not “3 or more crimes against a person.”

        In upholding the trial court’s assessment of 25 points under OV 13, the Court of
  Appeals interpreted MCL 777.21(4) to allow the reclassification of defendant’s
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conspiracy conviction as a “crime against a person” for purposes of scoring OV 13 based
on the nature of the underlying offense of which defendant was convicted. That is,
because the offense underlying defendant’s conspiracy conviction was armed robbery,
which is designated as a “crime against a person,” defendant’s conspiracy conviction
likewise constituted a “crime against a person,” sufficient to satisfy OV 13. However,
when an offender is being sentenced for a violation of MCL 777.18, MCL 777.21(4)
merely directs a court to “determine the offense variable level by scoring the offense
variables for the underlying offense.” It does not allow the offense category underlying
the conspiracy to dictate the offense category of the conspiracy itself for purposes of
scoring OV 13.

       Because the Court of Appeals decision contravenes this Court’s decision in
Bonilla-Machado and the deduction of the 25 points erroneously scored under OV 13
affects defendant’s guidelines range, defendant is entitled to resentencing. People v
Francisco, 474 Mich 82 (2006).

      YOUNG, C.J., would deny leave to appeal for the reasons set forth in his dissenting
opinion in People v Bonilla-Machado, 489 Mich 412, 441-450 (2011).




                         I, Corbin R. Davis, 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.
                         January 13, 2012                    _________________________________________
       h0110                                                                 Clerk
