OV 13 — Continuing Pattern of Criminal Behavior

The Supreme Court established the controlling rule: the five-year period to which OV 13 refers must encompass the sentencing offense. Where the trial court scored OV 13 at 25 points based on three felonies from 1986, but the sentencing offense occurred in 2003, those prior offenses fell outside a five-year period that included the sentencing offense. Because MCL 777.43(2)(a) states that the sentencing offense "shall" be included in the five-year period, any period that does not include the sentencing offense is precluded. See also People v Johnson, 485 Mich 932 (2009) (same rule applied).

The Supreme Court held that the sentencing offense controls the type of pattern that may be scored. It was improper to score OV 13 at 25 points for a pattern of three or more crimes against a person when the sentencing offense was itself a crime involving a controlled substance, even though the defendant had three prior convictions for crimes against a person within five years. The sentencing offense must be of the same category as the pattern being scored — the sentencing offense is "one of" the crimes within the five-year period and controls the pattern type.

A single felonious act cannot constitute a pattern. Where the defendant had no prior record and multiple convictions for reckless driving causing death and serious impairment arose from his single act of driving recklessly, it was error to score OV 13. The statute contemplates more than one felonious event; concurrent convictions arising from a single act do not reflect the repeated felonious conduct the Legislature intended to punish under OV 13.

Before OV 13 may be scored, it must be shown by a preponderance of the evidence that the other felonies actually occurred and that the defendant committed them. Resentencing ordered because the other charges were dismissed as part of the plea bargain and the record did not support a finding that the defendant committed a third crime against a person. Dismissed charges do not constitute proof of commission without more.

The trial court erred in assessing 25 points for OV 13 where the court made no finding of a third felony offense. Without a specific finding identifying the third qualifying offense and supporting evidence establishing that the defendant committed it, the 25-point score cannot stand.

The trial court erred in assessing 25 points for OV 13 based on out-of-state charges or accusations where the record provided no facts in support of the score. The prosecution must prove by a preponderance of the evidence that: (1) the crimes actually took place, (2) the defendant committed them, (3) they are properly classified as felony crimes against a person, and (4) they occurred within a five-year period of the sentencing offense.

OV 13 by its terms does not require a conviction for an act to be counted toward scoring. There was no error in counting a dismissed 2008 bank robbery charge where the presentence report identified the defendant and a surveillance photograph provided further evidence. Uncharged and dismissed offenses are properly counted if supported by a preponderance of the evidence. See also People v Hardy, 494 Mich 430, 438 (2013) (preponderance standard governs all OV scoring).

The trial court correctly scored OV 13 at zero points where, although the defendant had been convicted of two felonies against a person within a five-year period, the record evidence was insufficient to show that he committed a third felonious criminal act against a person. The defendant's admission of being accused of CSC, without charges, conviction, or supporting evidence, was insufficient to meet the preponderance standard.

The mere fact that the presentence report reflects that a charge was brought and then dismissed is insufficient evidence to support a finding that the defendant committed that offense for purposes of OV 13 where the defendant objected that the charge was dismissed on the basis of insufficient evidence.

Where the PSIR reflected that a felony larceny of a person charge was dismissed and the prosecutor failed to present additional evidence at sentencing, the trial court could not count that felony toward the five-year period. See also People v Spears, unpublished per curiam opinion, issued May 6, 2021 (Docket No. 350716) (same rule applied).

The trial court's decision to consider three charges for which the defendant was acquitted when calculating OV 13 violated due process under People v Beck. At trial, the prosecutor put the entire parenting visit period in dispute; the jury's acquittal of all but one instance was a rejection of the prosecutor's argument that three other crimes had occurred. Accordingly, the trial court could not score OV 13 and punish the defendant as though convicted of four counts. This is a significant recent application of Beck to OV 13 in CSC cases.

The Supreme Court reversed and remanded for resentencing, holding that 50 points may only be assessed under OV 13 if the sentencing offense is first-degree criminal sexual conduct (CSC-I) involving the penetration of a victim under the age of 13, as part of a pattern of other such penetrations. Where the sentencing offense was CSC-I of a victim between the ages of 13 and 16, the 50-point score was improper. The Legislature's inclusion of the phrase "against a person or persons less than 13 years of age" limits the 50-point score to that specific subset of CSC-I offenses.

The defendant is entitled to resentencing where the trial court erroneously scored OV 13 at 50 points reflecting three or more sexual penetrations against a person less than 13, because the instruction specifies that 50 points may be scored only if the sentencing offense is first-degree criminal sexual conduct, and the defendant was being sentenced for second-degree criminal sexual conduct.

Conspiracy is a crime against public safety and cannot be counted under OV 13 as a crime against a person by looking at the nature of the underlying offense. The Legislature designates offense categories; courts cannot reclassify offenses by examining the substance of the underlying crime.

The offense of assaulting a guard, classified as a public safety crime under the guidelines, may not be considered a crime against a person for purposes of scoring OV 13. The statutory offense category designation — not the nature of the underlying conduct — controls.

Concurrent convictions arising from the same incident are not precluded from being scored in OV 13. It was proper to score OV 13 for the defendant's convictions for two counts of armed robbery and one count of unarmed robbery arising out of the same incident, because the defendant committed separate acts against each of three victims, constituting a pattern of criminal activity. But see People v McLaughlin, 258 Mich App 635, 674 n 17 (2003) (OV 13 inapplicable where three counts of first-degree CSC arose from three penetrations of the same victim during the same incident, as this would not constitute a "pattern").

Scoring of OV 13 at 25 points was appropriate where the defendant's four concurrent convictions of child sexually abusive activity arose from photographs taken of two fifteen-year-old girls on two separate occasions. Four individual acts on multiple occasions constitute a pattern, distinguishing this situation from concurrent convictions arising from a single act.

The Supreme Court reversed the Court of Appeals' affirmance of 25 points for OV 13 for the same acts of resisting and obstructing a police officer that were already scored in OV 12. The Court of Appeals had erroneously concluded that the acts were related to membership in an organized criminal group or gang-related. Under MCL 777.43(2)(c), conduct already scored under OV 12 may only be counted in OV 13 if it was gang-related or related to organized criminal group membership.

The trial court did not err in scoring OV 13 for a continuing pattern of criminal behavior by including the defendant's juvenile adjudications. A juvenile adjudication clearly constitutes criminal activity for purposes of OV 13, as it amounts to a violation of a criminal statute. The statute's reference to "felonious criminal activity" encompassing crimes "without regard to whether the offense resulted in a conviction" includes juvenile adjudications.

Two holdings: (1) The scoring of OV 13 is improper where it impermissibly included conduct already scored under OV 12. (2) The trial court erred in concluding that a misdemeanor conviction of aggravated assault fell within the definition of "felonious criminal activity" as that offense is punishable by not more than one year and is clearly not a felony as defined by the Code of Criminal Procedure.