            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 27, 2020
               Plaintiff-Appellee,

v                                                                    No. 348768
                                                                     Lenawee Circuit Court
COLLEEN MARIE BERRIDGE,                                              LC No. 17-018748-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and O’BRIEN and REDFORD, JJ.

PER CURIAM.

       Defendant pleaded guilty to manslaughter, MCL 750.321, and the trial court sentenced
defendant to 6 to 15 years’ imprisonment. Defendant moved for resentencing and the court
resentenced defendant to the same sentence. Defendant sought leave to appeal but this Court
denied leave for lack of merit. People v Berridge, unpublished order of the Court of Appeals,
entered June 12, 2019 (Docket No. 348768). Defendant applied for leave to our Supreme Court
which, in lieu of granting leave, remanded the case to this Court for consideration as on leave
granted. People v Berridge, 505 Mich 938; 936 NW2d 309 (2019). We reverse the trial court’s
scoring of 10 points for Offense Variable (OV) 12, affirm the trial court’s scoring of 25 points for
OV 6, and remand for resentencing.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        On August 4, 2017, defendant sold heroin and cocaine to Kernie Easterday who later in the
day used the drugs. Around 3:00 p.m., Easterday’s mother found him unresponsive, facedown on
his bed. While Easterday’s mother called 911, his sister performed CPR until first responders
arrived and took over. They took Easterday to the hospital where doctors pronounced him dead at
3:26 p.m. from drug toxicity. Police found drug paraphernalia on the nightstand next to
Easterday’s bed and a hypodermic needle and foil wrapper in his bedroom.

       The prosecution charged defendant with one count of delivering a controlled substance
causing death, MCL 333.317a, one count of delivering less than 50 grams of heroin, MCL
333.7401(2)(a)(iv), second offense, and one count of delivering less than 50 grams of cocaine,
MCL 333.7401(2)(a)(iv), second offense, and one count of manslaughter, MCL 750.321.


                                                -1-
Defendant pleaded guilty to manslaughter and the court sentenced her to 6 to 15 years’
imprisonment. Defendant moved for resentencing and argued that the court erroneously assigned
25 points each for sentencing guidelines OV 6 and OV 12. The sentencing court granted
defendant’s motion for resentencing and concluded that 25 points were properly assessed for OV
6 but only 10 points should have been assessed for OV 12. The trial court resentenced defendant
to the same 6- to 15-year prison term.

                                 II. STANDARDS OF REVIEW

         We review for clear error a sentencing court’s scoring of a sentencing guideline variable.
People v Lockett, 295 Mich App 165, 182; 814 NW2d 295 (2012). “A scoring decision is not
clearly erroneous if the record contains any evidence in support of the decision.” Id. (quotation
marks and citation omitted). An error in the calculation of the recommended minimum sentence
range that increases the length of the defendant’s sentence constitutes error requiring reversal.
People v Francisco, 474 Mich 82, 88-91; 711 NW2d 44 (2006). The sentencing court’s factual
determinations used for sentencing under the sentencing guidelines must be supported by a
preponderance of the evidence and are reviewed for clear error. People v Dickinson, 321 Mich
App 1, 20; 909 NW2d 24 (2017). A sentencing court’s factual determinations are clearly erroneous
if this Court is left with a definite and firm conviction that a mistake was made by the sentencing
court. Id. We review de novo a sentencing court’s interpretation and application of the sentencing
guidelines. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).

                                         III. ANALYSIS

                                            A. OV 12

        Defendant first argues that the sentencing court erred by assessing her 10 points for OV 12.
As to this issue, the prosecution concedes error and agrees with defendant that OV 12 should have
been scored zero We also agree.

        Defendant asserts that she did not commit three or more contemporaneous felonious acts
involving other crimes because the three other charged crimes were not separate acts and were
subsumed by her manslaughter conviction. OV 12 considers contemporaneous felonious acts.
MCL 777.42(1). Ten points are properly assessed for OV 12 if “[t]wo contemporaneous felonious
criminal acts involving crimes against a person were committed,” or if “[t]hree or more
contemporaneous felonious criminal acts involving other crimes were committed.” MCL
777.42(1)(b) and (c). A felonious criminal act is contemporaneous if “[t]he act occurred within
24 hours of the sentencing offense,” and “[t]he act has not and will not result in a separate
conviction.” MCL 777.42(2)(a)(i) and (ii); see People v Light, 290 Mich App 717, 726; 803 NW2d
720 (2010) (concluding that, for the purposes of scoring OV 12, the defendant’s charges of larceny
from the person and larceny in a building were not contemporaneous felonious acts because they
both served as the basis of the defendant’s sentencing offense of robbery). The contemporaneous
felonious criminal acts must be “acts other than the sentencing offense and not just other methods
of classifying the sentencing offense.” Light, 290 Mich App at 726. “[W]hen scoring OV 12, a
court must look beyond the sentencing offense and consider only those separate acts or behavior
that did not establish the sentencing offense.” Id. at 723. The pertinent inquiry is “whether the
‘sentencing offense’ can be separated from other distinct ‘acts.’ ” People v Carter, 503 Mich 221,


                                                -2-
227; 931 NW2d 566 (2019) (citation omitted). The sentencing offense is the “crime of which the
defendant has been convicted and for which he or she is being sentenced.” People v McGraw, 484
Mich 120, 122 n 3; 771 NW2d 655 (2009).

        In this case, the prosecution charged defendant with four crimes, one count of delivering a
controlled substance causing death, one count of delivering less than 50 grams of heroin, one count
of delivering less than 50 grams of cocaine, and one count of manslaughter. Defendant pleaded
guilty to manslaughter and the sentencing court sentenced her for that offense. The record reflects
that a preponderance of the evidence established that defendant delivered the heroin and cocaine
to Easterday which caused his death. Absent defendant’s single act of delivery of the heroin and
cocaine to Easterday, he would not have died. The delivery of the controlled substances served as
the foundation for establishing the manslaughter charge and cannot be separated from other distinct
acts as required to permit assessment of points for OV 12. Because defendant’s manslaughter
conviction cannot be separated from the multiple offenses with which the prosecution charged her,
zero points should have been assessed for OV 12. As indicated above, on appeal, the prosecution
concedes that the sentencing court erred by assessing points for OV 12.

        The scoring error entitles defendant to resentencing if it altered defendant’s recommended
minimum sentencing guidelines range. Carter, 503 Mich at 230. In this case it did. The
sentencing court originally assessed defendant a total prior record variable (PRV) score of 15
points and a total OV score of 90 points. The guidelines sentencing grid for a Class C offense set
the recommended minimum sentence range of 43 to 86 months’ imprisonment. After the
sentencing court granted defendant’s motion for resentencing, it reduced defendant’s OV 12 score
from 25 to 10 points. That reduction rendered defendant’s total OV score 75 points, leaving
defendant’s minimum sentence range unchanged. The sentencing court, however, erred by not
reducing OV 12 to zero. Proper assessment of zero points for plaintiff’s OV 12 score reduces her
total OV score to 65 points. Under the guidelines sentencing grid for a Class C offense, with
proper scoring of OV 12, renders the recommended minimum sentence range of 36 to 71 months’
imprisonment. Therefore, defendant is entitled to resentencing.

                                             B. OV 6

        Defendant also argues that the sentencing court erred by assessing 25 points for OV 6 on
the ground that she did not create a very high risk of death or great bodily harm knowing that death
or great bodily harm was the probable result. We disagree.

        OV 6 is scored for the offender’s intent to kill or injure another person. MCL 777.36(1).
Twenty-five points must be assessed for OV 6 if “[t]he offender had unpremeditated intent to kill,
the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing
that death or great bodily harm was the probable result.” MCL 777.36(1)(b). When calculating
the sentencing guidelines, a defendant’s OV score is properly determined by reference only to the
sentencing offense, except as otherwise provided by the particular offense variable statute.
McGraw, 484 Mich at 133. The sentencing court may consider all of the evidence in the record,
including the contents of the presentence investigation report, plea admissions, and testimony
presented at a preliminary examination. People v McChester, 310 Mich App 354, 358; 873 NW2d
646 (2015). “A sentencing court has discretion in determining the number of points to be scored,



                                                -3-
provided that evidence of record adequately supports a particular score.” Dickinson, 321 Mich
App at 21 (quotation marks and citation omitted).

        In this case, the sentencing court sentenced defendant for manslaughter. Manslaughter is
murder without malice and may be voluntary or involuntary. People v Head, 323 Mich App 526,
532; 917 NW2d 752 (2018). Voluntary manslaughter occurs when the “(1) defendant killed in the
heat of passion, (2) the passion was caused by adequate provocation, and (3) there was no lapse of
time during which a reasonable person could have controlled his passions.” People v Roper, 286
Mich App 77, 87; 777 NW2d 483 (2009) (citation omitted). The evidence did not establish that
defendant committed voluntary manslaughter. “Involuntary manslaughter is a catch-all crime that
encompasses all homicides that do not constitute murder, voluntary manslaughter, or a justified or
excused homicide.” Head, 323 Mich App at 532 (quotation marks and citations omitted).
Involuntary manslaughter is committed with a lesser mens rea of gross negligence or intent to
injure. People v Holtschlag, 471 Mich 1, 21; 684 NW2d 730 (2004).

        When pleading guilty to manslaughter, defendant admitted that she gave Easterday the
heroin and cocaine that caused his death. The record does not indicate that defendant intended to
kill Easterday or do him great bodily harm. Evidence, however, established that defendant’s
delivery of the controlled substances created a very high risk of death or great bodily harm and
that defendant knew that death or great bodily harm was a probable result. At defendant’s
resentencing, the court concluded that the evidence supported assessing defendant 25 points for
OV 6.

        The prosecution argues that the sentencing court could have assessed defendant 50 points
for OV 6. The plain language of OV 6 provides that “the scoring of 50 points is appropriate when
the offender has the premeditated intent to kill or the killing was committed in the course of the
commission of one of the enumerated offenses.” People v Bowling, 299 Mich App 552, 561; 830
NW2d 800 (2013). In the absence of a premeditated intent to kill, the statutory language requires
only that the killing occurred in the course of committing or attempting to commit one of the
enumerated offenses. Id. MCL 777.36(1)(a) directs the sentencing court to assign 50 points for
OV 6 if “the killing was committed while committing or attempting to commit . . . a major
controlled substance offense.” MCL 333.7401(2)(a) prohibits delivery of a schedule 1 or 2
narcotic. A violation of MCL 333.7401(2)(a)(iv), i.e., the delivery of a schedule 1 or 2 controlled
substance like heroin or cocaine, constitutes a “major controlled substance offense.” MCL
761.2(a); People v Fetterley, 229 Mich App 511, 527-528; 583 NW2d 199 (1998). In this case,
defendant violated this provision by delivering heroin and cocaine to Easterday. Defendant
admitted that she provided Easterday with the heroin and cocaine that caused his death. Although
the sentencing court could have assessed defendant 50 points for OV 6, in its discretion it
determined that defendant’s conduct warranted assessing her only 25 points. Sentencing courts
have discretion in determining the number of points to be assessed so long as evidence adequately
supports the court’s decision. Dickinson, 321 Mich App at 21. Accordingly, the sentencing court
did not abuse its discretion in this regard.




                                               -4-
        Reversed in part, affirmed in part, and remanded for resentencing. We do not retain
jurisdiction.

                                                        /s/ Colleen A. O’Brien
                                                        /s/ James Robert Redford




                                            -5-
