People v. Morson

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 30, 2004

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 124083

LATASHA GENISE MORSON,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

WEAVER, J.

Defendant Latasha Morson waited in a car while her

friend, Iesha Northington, robbed Deborah Sevakis of her

purse at gunpoint, using a gun obtained from defendant. As

Northington fled the scene, she shot James Bish, who tried

to stop her and recover Sevakis’s purse. Following a bench

trial, defendant was convicted of armed robbery,1 conspiracy

1
MCL 750.529.
to commit armed robbery,2 and two counts of possession of a

firearm during the commission of a felony.3 She was

sentenced to concurrent terms of eight to thirty years for

the armed robbery and conspiracy convictions,4 to be served

consecutively to the mandatory two-year sentence for

felony-firearm.

The first issue to be addressed is how many points

defendant could be properly assessed at sentencing under

offense variables (OV) 1 and 3. OV 1, which considers

aggravated use of a weapon, and OV 3, which considers

physical injury to the victim, require both that the

highest number of points be assessed and that multiple

offenders be assessed the same number of points for these

variables. When Iesha Northington’s armed robbery

conviction was scored on May 10, 2000, she was assessed

fifteen points for OV 1 and zero points for OV 3. But when

defendant’s armed robbery conviction was scored on December

10, 2001, the sentencing court assessed defendant twenty-

five points for OV 1 and twenty-five points for OV 3. The
2
MCL 750.157(a).
3
MCL 750.227b.
4
The Court of Appeals opinion incorrectly states the
sentence as eight to twenty years. The sentencing
transcript, sentencing information report, and judgment of
sentence all state the term as eight to thirty years.

2

Court of Appeals reversed the decision of the sentencing

court on this issue, concluding that the multiple offender

provision required that defendant’s scores on OV 1 and OV 3

be the same as those previously assessed to Iesha

Northington for OV 1 and OV 3.

The second issue that must be decided is how many

points defendant could be properly assessed under OV 9,

which considers the number of victims. The sentencing

court assessed ten points under this variable, concluding

that there were two victims. The Court of Appeals reversed

and concluded that defendant should be assessed zero points

because there was one victim.

We affirm in part and reverse in part. The Court of

Appeals correctly concluded that pursuant to the sentencing

guidelines, defendant should have been assessed the same

scores for OV 1 and OV 3 that Iesha Northington was

assessed. But the Court of Appeals incorrectly held that

under OV 9, defendant should have been assessed zero points

because there was only one victim. Pursuant to the

language of the guidelines, two people were placed in

danger. Consequently, the sentencing court properly

assessed defendant ten points under OV 9. We remand this

case to the circuit court for resentencing consistent with

this opinion.

3

 Facts

Deborah Sevakis was robbed of her purse at gunpoint by

Iesha Northington as Sevakis was walking down Nine Mile

Road in Ferndale at about 10:00 p.m. on May 29, 1999.

Sevakis testified that someone tapped her on the shoulder

and demanded her purse. When Sevakis initially refused to

give up her purse, Northington pointed a gun at her. As

Northington ran off with the purse, Sevakis yelled, “Call

9-1—1. I’ve been robbed.” Immediately, James Bish, who

was standing nearby and had witnessed the robbery, ran

after Northington. When Bish told Northington to drop the

purse, Northington shot him.

In her written statement to the police, defendant

stated that as she and Northington were driving down Nine

Mile Road, they observed a lady walking with her purse and

discussed robbing her. Northington got out of the car

while defendant drove to a gas station. Defendant next

observed Northington running toward the car, carrying a

black purse. She also saw a man running and holding his

chest; Northington told her that she thought she had shot

the man. Defendant admitted that she had given Northington

the gun that Jermaine Calloway had given her. Defendant

stated that she and Northington stopped to get gas, then

4

went to a Kmart store, where they tried unsuccessfully to

use Sevakis’s credit card.

Following a bench trial, defendant was convicted of

armed robbery, conspiracy to commit armed robbery, and two

counts of felony-firearm.5 Before defendant’s sentencing,

Northington, who was sentenced on May 10, 2000, was

assessed fifteen points on OV 1 and zero points on OV 3.

At defendant’s sentencing on December 10, 2001, she

asserted that she should be assessed the same number of

points as Ms. Northington on OV 1 and OV 3 when defendant’s

armed robbery conviction was scored. But the court

assessed defendant twenty-five points on OV 1 and twenty-

five points on OV 3 when scoring defendant’s armed robbery

conviction. The trial court also assessed defendant ten

points on OV 9.

Defendant appealed, and the Court of Appeals reversed

and remanded for resentencing.6 The Court of Appeals

concluded that defendant should have been assessed the same

scores as Northington on OV 1 and OV 3 for the armed

5
Defendant and Northington were tried separately.
Though Northington was also charged with and convicted of
assault with intent to commit murder, defendant was not.
6
Unpublished opinion per curiam, issued May 29, 2003
(Docket No. 238750).

5

robbery conviction. Additionally, the Court of Appeals

concluded that defendant should have been assessed zero

points on OV 9 because there was only one victim, not two.

This Court granted the prosecution’s application for
7
leave to appeal.

7
469 Mich 966 (2003). The Court’s grant order
instructed the parties to include among the issues briefed:

(1) how subsection 1 of MCL 777.31 (offense
variable one [OV 1]), requiring that the "highest
number of points" be assigned, should be applied
in light of subsection 2(b), requiring that "all
offenders" in multiple offender cases be assessed
the same number of points; (2) similarly, how
subsection 1 of MCL 777.33 (OV 3), requiring that
the "highest number of points" be assigned,
should be applied in light of subsection 2(a),
requiring that ‘all offenders’ in multiple
offender cases be assessed the same number of
points; (3) whether MCL 777.31(2)(b) and
777.33(2)(a) apply where all "offenders" have not
been charged with identical crimes; (4) whether
under MCL 777.31(2)(b) and 777.33(2)(a) the trial
court is bound by a previously imposed sentence
upon a codefendant where that sentence is based
upon an erroneous offense variable score; (5)
whether under MCL 777.39 (OV 9) the number of
persons placed in danger includes only those
persons who are placed in danger during the
particular crime for which defendant is being
scored (here, armed robbery), or whether that
number includes all persons placed in danger at
any point during the criminal episode; and (6)
whether the due process clauses of the state and
federal constitutions require that the
prosecution prove the elements of a crime that
someone else committed before a court can base a
defendant's sentence on the actions of the other
person. See Harris v United States, 536 US 545
(2002), Apprendi v New Jersey, 530 US 466 . . .
(continued…)

6

 Standard of Review

The issues in this case concern the proper

interpretation and application of the legislative

sentencing guidelines, MCL 777.11 et seq., which are legal

questions that this Court reviews de novo. People v

Perkins, 468 Mich 448, 452; 662 NW2d 727 (2003). When

construing a statute, this Court’s primary goal is to give

effect to the intent of the Legislature. We begin by

construing the language of the statute itself. Where the

language is unambiguous, we give the words their plain

meaning and apply the statute as written. People v Morey,

461 Mich 325, 330; 603 NW2d 250 (1999).

Analysis

Generally, to determine a minimum sentence range under

the legislative sentencing guidelines, the sentencing court

must first determine the offense category. MCL

777.21(1)(a). The sentencing court must then determine

which offense variables (OV) are applicable, score those

variables, and total the points to determine the offender’s

(…continued)
(2000), and Washington v Blakely, 111 Wash App
851 (2002), cert gtd sub nom Blakely v
Washington, [124 S Ct 429 (2003)].

7

offense variable level. Id. The sentencing court also

scores all prior record variables. MCL 777.21(1)(b). The

offender’s offense variables score and prior record

variables score are then used with the sentencing grids to

determine the recommended minimum sentence range under the

guidelines. MCL 777.21(1)(c).

In this case, the sentencing issues presented arise

out of defendant’s armed robbery conviction, MCL 750.529.

Under the guidelines, armed robbery is categorized as a

crime against a person. MCL 777.16y. MCL 777.22(1), as

amended by 2002 PA 143, provided:

For all crimes against a person, score
offense variables 1, 2, 3, 4, 7, 8, 9, 10, 11,
12, 13, 14, 19, and 20. Score offense variables
5 and 6 for homicide, attempted homicide,
conspiracy or solicitation to commit a homicide,
or assault with intent to commit murder. Score
offense variable 16 under this subsection for a
violation or attempted violation of . . . MCL
750.110a. Score offense variables 17 and 18 if
an element of the offense or attempted offense
involves the operation of a vehicle, vessel, ORV,
snowmobile, aircraft, or locomotive.

At issue are defendant’s scores for OV 1, OV 3, and OV 9.

OV 1 and OV 3

OV 1 assesses points for the aggravated use of a

weapon, MCL 777.31, and OV 3 assesses points for physical

injury to a victim, MCL 777.33. This case concerns how

8

these two variables are to be scored in cases involving

multiple offenders. MCL 777.31 provides in part:

(1) Offense variable 1 is aggravated use of
a weapon. Score offense variable 1 by determining
which of the following apply and by assigning the
number of points attributable to the one that has
the highest number of points:

(a) A firearm was discharged at or toward a
human being or a victim was cut or stabbed with a
knife or other cutting or stabbing weapon......25
points

* * *

(c) A firearm was pointed at or toward a
victim or the victim had a reasonable
apprehension of an immediate battery when
threatened with a knife or other cutting or
stabbing weapon................15 points

(d) The victim was touched by any other type
of weapon...................10 points

(e) A weapon was displayed or
implied.......5 points

(f) No aggravated use of a weapon
occurred.........0 points

(2) All of the following apply to scoring
offense variable 1:

(a) Count each person who was placed in
danger of injury or loss of life as a victim.

(b) In multiple offender cases, if 1
offender is assessed points for the presence or
use of a weapon, all offenders shall be assessed
the same number of points.

(c) Score 5 points if an offender used an
object to suggest the presence of a weapon.

(d) Score 5 points if an offender used a
chemical irritant, chemical irritant device,

9

 smoke device, or imitation harmful substance or
device.

(e) Do not score 5 points if the conviction
offense is a violation of . . . MCL 750.82 and
750.529. [Emphasis added.][8]

MCL 777.33 provides in part:

(1) Offense variable 3 is physical injury to
a victim. Score offense variable 3 by determining
which of the following apply and by assigning the
number of points attributable to the one that has
the highest number of points:

(a) A victim was killed...........100 points

(b) A victim was killed...........50 points

(c) Life threatening or permanent
incapacitating injury occurred to a
victim........25 points

(d) Bodily injury requiring medical
treatment occurred to a victim........10 points

(e) Bodily injury not requiring medical
treatment occurred to victim...........5 points

(f) No physical injury occurred to a
victim.............5 points

(2) All of the following apply to scoring
offense variable 3:

(a) In multiple offender cases, if 1
offender is assessed points for death or physical
injury, all offenders shall be assessed the same
number of points.

8
Some amendments were made to the statute after the
crime in the present case occurred. Subsection 1(d) was
added in 2001. In 2002, amendments added subsection 1(b),
which scores twenty points for exposure to harmful
substances or incendiary devices, and subsection 3, which
defines harmful substances and incendiary devices.

10

 * * *

(d) Do not score 5 points if bodily injury
is an element of the sentencing offense.

(3) As used in this section, “requiring
medical treatment” refers to the necessity for
treatment and not the victim's success in
obtaining treatment. [Emphasis added.][9]

When the sentencing court scored defendant’s armed

robbery conviction, it assessed defendant twenty-five

points on OV 1 for the shooting of Bish. But when Iesha

Northington had previously been sentenced for the armed

robbery before defendant, she was assessed only fifteen

points under OV 1. Similarly, on OV 3, defendant was

assessed twenty-five points for the shooting of Bish, while

Iesha Northington had been assessed zero points.

Focusing on subsection 1 of each statute, the

prosecution contends that defendant may be assessed twenty-

five points for OV 1 and OV 3 when scoring the armed

robbery conviction because subsection 1 requires the

sentencing court to assess the “highest number of points”

and because the sentencing court should not be bound to

apply “inaccurate” scores. Defendant, on the other hand,

9
This statute was revised in 2003, after the crime in
this case was committed. The amendments, which increased
the score imposed under 1(b) from thirty-five points to
fifty points and made corresponding revisions to 2(c), do
not affect the present case.

11

asserts that subsection 2 of each statute requires that

defendant, for her armed robbery conviction, be assessed

the same scores for OV 1 and OV 3 that Iesha Northington

was assessed when scored for armed robbery. On the facts

before us, we agree with defendant that the plain language

of subsection 2 requires that defendant, when scored on the

armed robbery conviction, be assessed the same scores on OV

1 and OV 3 that Iesha Northington was previously assessed

on those variables when she was scored for armed robbery.10

Each multiple offender provision states that if one

offender is assessed points under the variable, “all

offenders shall be assessed the same number of points.”

MCL 777.31(2)(b), MCL 777.33(2)(a)(emphasis added).11 While

10
Because the scoring issues in this case can be
resolved under the plain language of the statute, it is
unnecessary to address, as do the concurring and
concurring/dissenting opinions, whether armed robbery is a
transactional offense. See concurring opinion of Corrigan,
C.J., at 1-5, 10-11 and partially concurring and partially
dissenting opinion of Markman, J., at 7 n 1. Additionally,
it is unnecessary to draw the sharp lines that Justice
Markman attempts to draw between “offenses” stemming from
this event. See infra at 3-6.
11
We note that there is no language in either statute
to suggest that the multiple offender provision applies
only when “offenders” are charged with identical crimes.
Thus, the fact that Northington was charged with additional
crimes—namely, assault with intent to murder—does not mean
that the multiple offender provisions do not apply to the
armed robbery convictions arising from the incident.

12

we agree that the sentencing court should not be bound to

apply an erroneous score in the multiple offender context,

we note that the prosecution does not characterize Iesha

Northington’s scores on OV 1 and OV 3 of her armed robbery

conviction as inaccurate or erroneous. In fact, the

prosecution acknowledged in its brief that Northington’s

scores were not disputed by the prosecution at sentencing.12

Rather, the prosecution’s argument seems to be that

whenever it appears possible that a higher score could be

argued for under the variables, a subsequent sentencing

court is not bound by the prior score because the

sentencing court is required to assess the “highest number

of points.” We find such analysis contrary to the plain

language of the statute, which requires the sentencing

court to assess the same number of points to multiple

offenders.13

12
Compare People v Libbett, 251 Mich App 353, 366; 650
NW2d 407 (2002), in which it was “undisputed” that the
first offender sentenced had been scored improperly on OV
1.
13
Justice Young opines in his partially concurring and
partially dissenting opinion that the multiple offender
provision does not require a comparison of the OV scores
for identical crimes (i.e., comparing Northington’s armed
robbery OV 1 score with defendant’s armed robbery OV 1
score) but that the provision contemplates simply the
comparison of OV scores. Post at 4-5. Not only is this
inconsistent with MCL 777.21(2), which requires the
(continued…)

13

 Further, we reject the argument that our conclusion

would read the “highest number of points” requirement out

of the statute. When the sentencing court assesses points

for the first offender, it must assess the “highest number

of points” that can be assessed under the statute. If

Iesha Northington’s scores were inaccurate or erroneous

because the sentencing court failed to assess the highest

number of points, the prosecution should have challenged

the scores at Northington’s sentencing. But the

prosecution acknowledges that Northington’s scores were not

disputed and it does not argue to this Court that the

scores Northington received under OV 1 and OV 3 were

(…continued)
sentencing court to score each offense, but such a reading
may lead to illogical results. Suppose that defendant,
like Northington, had also been convicted of assault with
intent to commit murder. Under Justice Young’s theory,
since the sentencing court would only compare the OV 1
scores, and not the OV scores received for a specific
offense, presumably defendant could receive twenty-five
points under OV 1 for both her assault with intent to
murder conviction and her armed robbery conviction because
the sentencing court, looking at only the OV 1 scores,
could simply give defendant the highest OV 1 score—25
points—that Northington received under OV 1 when her
offenses were scored. Or suppose that defendant was
convicted of an additional crime that Northington was not.
Under Justice Young’s theory, Northington’s scores for an
offense variable would be considered when defendant is
subsequently scored and sentenced for the additional
offense. This would be another illogical result of Justice
Young’s theory.

14

erroneous. Consequently, in the absence of any clear

argument that the scores assessed to Northington under OV 1

and OV 3 were incorrect, the sentencing court should have

assessed defendant the same number of points that were

assessed to Northington for OV 1 and OV 3 when her armed

robbery conviction was scored: fifteen points and zero

points.

For these reasons, we affirm the Court of Appeals

conclusion concerning defendant’s scores for OV 1 and OV 3.

OV 9

Offense variable 9 assesses points on the basis of the

number of victims. MCL 777.39 provides:

(1) Offense variable 9 is number of victims.
Score offense variable 9 by determining which of
the following apply and by assigning the number
of points attributable to the one that has the
highest number of points:

(a) Multiple deaths occurred......100 points

(b) There were 10 or more victims.......25
points

(c) There were 2 to 9 victims..........10
points

(d) There were fewer than 2 victims.......0
points

(2) All of the following apply to scoring
offense variable 9:

(a) Count each person who was placed in
danger of injury or loss of life as a victim.

15

 (b) Score 100 points only in homicide cases.
[Emphasis added.]

Defendant was assessed ten points by the sentencing

court for two victims: Deborah Sevakis and James Bish.

The Court of Appeals reversed that determination by the

sentencing court, concluding that Sevakis was the only

victim of the armed robbery. We disagree with the Court of

Appeals and therefore reverse its conclusion regarding OV

9.

Pursuant to the plain language of the statute, the

sentencing court is to count “each person who was placed in

danger of injury or loss of life” as a victim. Though

Sevakis was the only person actually robbed, Bish, who was

standing nearby and responded to Sevakis’s call for help,

was also “placed in danger of injury or loss of life” by

the armed robbery of Sevakis.14 Consequently, the

sentencing court properly counted Bish as a victim and

properly scored defendant under OV 9.

14
Justice Markman, in his concurring/dissenting
opinion, fails to apply the plain language of the statute,
which, as explained, requires the sentencing court to count
“each person who was placed in danger of injury or loss of
life” as a victim. MCL 777.39(2)(a).

16

 Conclusion

We conclude that pursuant to the language of the

sentencing guidelines, defendant should have been assessed

the same number of points on OV 1 and OV 3 that Iesha

Northington was assessed when scored on the armed robbery

conviction. Unless the prosecution can demonstrate that

the number of points assessed to the prior offender was

erroneous or inaccurate, the sentencing court is required

to follow the plain language of the statute, which requires

the court to assess the same number of points on OV 1 and

OV 3 to multiple offenders. The prosecution has not

alleged that Northington’s score on these variables was in

error. Consequently, we affirm the Court of Appeals

conclusion that defendant should have been assessed the

same number of points as Northington on OV 1 and OV 3.

Additionally, we conclude that defendant was properly

assessed ten points by the sentencing court for OV 9

because there were two people placed in danger of injury or

loss of life: Sevakis, who was robbed, and Bish, a

bystander who responded to Sevakis’s call for help.

17

Accordingly, the decision of the Court of Appeals is

reversed on this point.15

We remand the case to the circuit court for

resentencing consistent with this opinion.

Elizabeth A. Weaver
Maura D. Corrigan
Michael F. Cavanagh
Marilyn Kelly

15
Given our resolution of the sentencing issues in this
case, it is unnecessary to address whether due process
requires that the prosecution prove the elements of a crime
that someone else committed before a court can base a
defendant’s sentence on the actions of the other person.

18

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 124083

LATASHA GENISE MORSON,

Defendant-Appellee.

_______________________________

CORRIGAN, C.J. (concurring).

I concur in the majority’s result for the sake of

reaching a clear rule regarding the legislative sentencing

guidelines and providing direction to trial courts in

implementing the guidelines. I believe that offense

variables 1 (OV 1) and 3 (OV 3), however, contain language

that may be contradictory in some cases, such as the

instant case. I further believe that armed robbery is a

transactional offense and thus concur with the majority’s

conclusion that the trial court properly assessed defendant

ten points under OV 9.
 I. ARMED ROBBERY IS A TRANSACTIONAL OFFENSE

At the time that defendant and Northington committed

the armed robbery in this case, the armed robbery statute,

MCL 750.529, provided, in part:1

Any person who shall assault another, and
shall feloniously rob, steal and take from his
person, or in his presence, any money or other
property, which may be the subject of larceny,
such robber being armed with a dangerous weapon,
or any article used or fashioned in a manner to
lead the person so assaulted to reasonably
believe it to be a dangerous weapon, shall be
guilty of a felony, punishable by imprisonment in
the state prison for life or for any term of
years.

In People v Randolph, 466 Mich 532, 551; 648 NW2d 164

(2002), a majority of this Court rejected the

“transactional approach” to unarmed robbery. Under the

transactional approach, “a defendant has not completed a

robbery until he has escaped with stolen merchandise.

Thus, a completed larceny may be elevated to a robbery if

the defendant uses force after the taking and before

reaching temporary safety.” Id. at 535 (citations

omitted). A majority of this Court determined, on the

basis of the language of the unarmed robbery statute in

existence at that time and on the common-law history of

1
The Legislature amended MCL 750.529 after the armed
robbery in this case. This amendment is discussed in note
2, infra.

2

unarmed robbery, that the force used to accomplish the

taking must be contemporaneous with the taking. Id. at

536. In so holding, the majority overruled four Court of

Appeals cases, including three involving armed robbery,

People v Tinsley, 176 Mich App 119; 439 NW2d 313 (1989);

People v Turner, 120 Mich App 23; 328 NW2d 5 (1982); and

People v Sanders, 28 Mich App 274; 184 NW2d 269 (1970).

Randolph, supra at 546.

The portion of the Randolph opinion overruling the

above cases involving armed robbery is dicta because

Randolph did not involve armed robbery. Further, the

unarmed robbery statute at issue in Randolph, MCL 750.530,

was significantly different than the armed robbery statute

at issue in the instant case. The statute at issue in

Randolph stated:

Any person who shall, by force or violence,
or by assault or putting in fear, feloniously
rob, steal and take from the person of another,
or in his presence, any money or other property
which may be the subject of larceny, such robber
not being armed with a dangerous weapon, shall be
guilty of a felony, punishable by imprisonment in
the state prison not more than 15 years.
[Emphasis added.]

The armed robbery statute at issue in this case, however,

does not contain the above emphasized language that the

Randolph majority found required a taking contemporaneous

with the use of force, violence, or putting in fear.

3

Rather, MCL 750.529 merely required an assault “and” a

taking. Thus, the majority opinion in Randolph did not

implicate armed robbery, and the armed robbery statute at

issue in this case followed a transactional approach

because nothing in the statute required that the use of

force be contemporaneous with the taking.2

2
The Legislature effectively overruled Randolph after
this Court released its decision in that case. MCL 750.530
now provides:

(1) A person who, in the course of
committing a larceny of any money or other
property that may be the subject of larceny, uses
force or violence against any person who is
present, or who assaults or puts the person in
fear, is guilty of a felony punishable by
imprisonment for not more than 15 years.

(2) As used in this section, “in the course
of committing a larceny” includes acts that occur
in an attempt to commit the larceny, or during
commission of the larceny, or in flight or
attempted flight after the commission of the
larceny, or in an attempt to retain possession of
the property.

Thus, effective July 1, 2004, the Legislature has
explicitly stated that unarmed robbery is a transactional
offense.

The Legislature also amended the armed robbery
statute, MCL 750.529, which now provides:

A person who engages in conduct proscribed
under section 530 and who in the course of
engaging in that conduct, possesses a dangerous
weapon or an article used or fashioned in a
manner to lead any person present to reasonably
believe the article is a dangerous weapon, or who
represents orally or otherwise that he or she is
(continued…)

4

 II. OV 1 and OV 3

Because armed robbery is a transactional offense, and

Northington shot Bish immediately after she stole Sevakis’

purse and before she reached a place of temporary safety,

the trial court’s consideration of the shooting when

determining defendant’s score under OV 1 and OV 3 was

arguably proper.3 OV 1, MCL 777.31, involves the aggravated

(…continued)
in possession of a dangerous weapon, is guilty of
a felony punishable by imprisonment for life or
for any term of years. If an aggravated assault
or serious injury is inflicted by any person
while violating this section, the person shall be
sentenced to a minimum term of imprisonment of
not less than 2 years.

This case involves the version of MCL 750.529 in existence
before the amendment effective July 1, 2004.
3
I disagree with Justice Markman that once all the
elements of the armed robbery were completed, no subsequent
use of force to help Northington retain possession of
Sevakis’ purse could be considered a continuation of the
armed robbery. See post note 1. Northington shot Bish in
an attempt to retain possession of the purse. Thus, the
shooting occurred in furtherance of the armed robbery and
is properly considered a continuation of the robbery under
the transactional approach. If, as recognized in Justice
Markman’s Randolph dissent, “a defendant has not completed
a robbery until he has escaped with stolen merchandise” and
reached a place of temporary safety, Randolph, supra at
535, then, contrary to Justice MARKMAN’s contention in note
1, post, the armed robbery in this case was not complete
immediately after Northington acquired Sevakis’ purse
because Northington had not yet reached a place of
temporary safety. Accordingly, the use of force subsequent
to the actual taking itself committed in an attempt to
retain possession of the purse was a part of the armed
(continued…)

5

use of a weapon. At the time that defendant committed the

armed robbery in this case, that section provided, in

relevant part:4

(1) Offense variable 1 is aggravated use of
a weapon. Score offense variable 1 by
determining which of the following apply and by
assigning the number of points attributable to
the one that has the highest number of points:

(a) A firearm was discharged at or toward a
human being or a victim was cut or stabbed with a
knife or other cutting or stabbing weapon.....25
points

(b) A firearm was pointed at or toward a
victim or the victim had a reasonable
apprehension of an immediate battery when
threatened with a knife or other cutting or
stabbing weapon........15 points

* * *

(…continued)
robbery. See People v Velasquez, 189 Mich App 14, 17; 472
NW2d 289 (1991) (use of force after taking in an attempt to
retain possession of property constitutes force or coercion
for armed robbery); People v Tinsley, 176 Mich App 119,
121; 439 NW2d 313 (1989) (because robbery is a continuous
offense, the use of force after a taking in order to retain
stolen property constitutes force for purposes of armed
robbery statute). In any event, the views expressed by
Justice MARKMAN could not have survived the amendments of MCL
750.529 and MCL 750.530. Under those amendments, effective
July 1, 2004, acts of force or violence during flight or
attempted flight after acquiring the stolen property or in
an attempt to retain possession of the stolen property
occur during “the course of committing” the robbery. See
note 2, supra.
4
The Legislature amended MCL 777.31 after the crime in
this case, but the amendments are not relevant to this
appeal. See ante note 8.

6

 (2) All of the following apply to scoring
offense variable 1:

(a) Count each person who was placed in
danger of injury or loss of life as a victim.

(b) In multiple offender cases, if 1
offender is assessed points for the presence or
use of a weapon, all offenders shall be assessed
the same number of points. [Emphasis added.]

The trial court also assessed twenty-five points under

OV 3. OV 3, MCL 777.33, involves physical injury to a

victim. At the time that defendant committed the armed

robbery in this case, MCL 777.33 provided, in relevant

part:5

(1) Offense variable 3 is physical injury to
a victim. Score offense variable 3 by
determining which of the following apply and by
assigning the number of points attributable to
the one that has the highest number of points:

* * *

(c) Life threatening or permanent
incapacitating injury occurred to a
victim.............25 points

(d) Bodily injury requiring medical
treatment occurred to a
victim....................10 points

5
Like OV 1, the Legislature amended MCL 777.33 after
the armed robbery in this case. The amendments do not
affect the result of this case. See Justice WEAVER’s
opinion, note 9.

7

 (e) Bodily injury not requiring medical
treatment occurred to a
victim.....................5 points

(f) No physical injury occurred to a
victim...................................0 points

(2) All of the following apply to scoring
offense variable 3:

(a) In multiple offender cases, if 1
offender is assessed points for death or physical
injury, all offenders shall be assessed the same
number of points. [Emphasis added.]

Subsection 1 of both OV 1 and OV 3 required the trial

court to assess the highest number of points that it could

assess for each variable. Following the transactional

approach to armed robbery, the trial court did so by

assessing defendant twenty-five points under OV 1 because

Northington discharged a firearm toward Bish. The court

also assessed defendant twenty-five points under OV 3

because Bish’s gunshot wound to the chest was life-

threatening. Thus, the trial court properly complied with

subsection 1 of both variables and assessed the highest

number of points possible under each variable.

Notwithstanding the above language of OV 1 and OV 3,

subsection 2(b) in OV 1 and subsection 2(a) in OV 3

required the trial court to assess the same number of

points under those variables as were assessed for

Northington. The trial court assessed Northington fifteen

8

points under OV 1 and zero points under OV 3. Thus, the

trial court did not assess Northington the highest number

of points as subsection 1 of OV 1 and OV 3 directs. The

question then is whether the trial court was obligated to

assess defendant the same number of points as were assessed

for Northington notwithstanding the fact that Northington

was not assessed the highest number of points. The answer

to this question is unclear. In these circumstances, the

language of subsection 1 of OV 1 and OV 3 conflicts with

the language of subsection 2(b) in OV 1 and subsection 2(a)

in OV 3. The trial court could not have followed one

provision without rendering the other nugatory.

Because it is the duty of the judiciary to interpret,

not to write, our laws, we, as judges, are unable to

correct the conflicting language of OV 1 and OV 3. Rather,

that task is left to the Legislature. A practical approach

to this problem would require trial courts to assess

offenders in multiple offender cases the same number of

accurately scored points. In that event, trial courts

would be required to assess multiple offenders the same

number of points only if the first offender’s assessment of

points was accurate. Otherwise, trial courts would be

required to assess subsequently sentenced offenders “the

highest number of points.” Because the “highest number of

9

points” provision of OV 1 and OV 3 conflicts with the

“multiple offender” provision of those variables, and

nothing directs which provision prevails, I concur with the

majority that defendant was required to be assessed the

same number of points as were scored for Northington.6

III. OV 9

I also concur with the majority that the trial court

properly assessed defendant ten points under OV 9. OV 9,

MCL 777.39, provides, in part:

(1) Offense variable 9 is number of victims.
Score offense variable 9 by determining which of
the following apply and by assigning the number
of points attributable to the one that has the
highest number of points:

(a) Multiple deaths occurred...........100
points

(b) There were 10 or more victims.......25
points

(c) There were 2 to 9 victims...........10
points

6
In his concurring and dissenting opinion, Justice
Young opines that the trial court properly scored
defendant’s OV 1 and OV 3 variables in the instant case
because those scores coincided with Northington’s OV 1 and
OV 3 scores for her assault conviction. Even accepting
Justice YOUNG’s argument as correct, however, a conflict may
still exist between the “highest number of points”
provision and the “multiple offender” provision in some
cases. Although under Justice YOUNG’s theory, defendant was
properly scored in this case, the above provisions would
still conflict in other cases if the first offender to be
sentenced is not assessed the highest number of points.

10

 (d) There were fewer than 2 victims......0
points

(2) All of the following apply to scoring
offense variable 9:

(a) Count each person who was placed in
danger of injury or loss of life as a victim.

Because armed robbery is a transactional offense and Bish

was placed in danger of injury or loss of life while the

robbery was ongoing, the trial court properly considered

him a victim of the armed robbery under subsection 2(a).7

Accordingly, the trial court’s assessment of ten points

under this variable was correct.

IV. CONCLUSION

The “multiple offender” provision of OV 1 and OV 3

conflicts with the “highest number of points” provision of

those variables. Accordingly, it is unclear whether the

trial court assessed the proper number of points under each

variable. Nevertheless, I concur with the majority for the

sake of reaching a clear rule and offering guidance to

sentencing courts in implementing the legislative

7
As discussed in note 3, supra, because Northington
shot Bish in an attempt to retain possession of Sevakis’
purse and before she reached a place of temporary safety,
the shooting was a continuation of the robbery under the
transactional approach to that offense. Thus, the trial
court properly considered the shooting in scoring OV 9.

11

sentencing guidelines. I urge the Legislature to amend

those sentencing variables containing the above conflicting

provisions. Further, I concur with the majority’s

conclusion regarding OV 9. Because armed robbery is a

transactional offense, the trial court properly assessed

defendant ten points under OV 9.

Maura D. Corrigan

12

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 124083

LATASHA GENISE MORSON,

Defendant-Appellee.

_______________________________

MARKMAN, J. (concurring in part and dissenting in part).

I concur in the conclusion of the majority opinion

that the trial court improperly scored OV 1 and OV 3,

although I reach this conclusion by a different analysis.

I respectfully dissent from the conclusion of the majority

opinion that the trial court properly scored OV 9.

Defendant and Iesha Northington robbed an elderly

woman, Deborah Sevakis. Northington stole Sevakis’s purse.

James Bish, a bystander who witnessed the robbery, chased

after Northington and Northington shot Bish. Defendant was

the getaway driver. Northington pleaded guilty to armed

robbery and assault with intent to murder, and defendant

was convicted of armed robbery, but never charged with the

assault.
 OV 1 is to be scored at fifteen points for pointing a

firearm at a person and twenty-five points for discharging

a firearm at a person. MCL 777.31(1)(a) and (c). Although

defendant’s accomplice, Iesha Northington, was assessed

twenty-five points for the assault conviction, she was

assessed only fifteen points for the armed robbery

conviction. Defendant was assessed twenty-five points for

the armed robbery conviction. Defendant was never charged

with an assault. The Court of Appeals concluded that the

trial court erred in assessing defendant twenty-five points

for the armed robbery conviction because MCL 777.31(2)(b)

provides that “[i]n multiple offender cases, if 1 offender

is assessed points for the presence or use of a weapon, all

offenders shall be assessed the same number of points.”

The majority opinion agrees.

OV 3 is to be scored at twenty-five points if a victim

suffered a life-threatening injury. MCL 777.33(1)(c).

Clearly, James Bish suffered a life-threatening injury when

he was shot in the chest and his lung was punctured.

Although Northington was assessed twenty-five points for

the assault conviction, she was assessed zero points for

the armed robbery conviction. Defendant was assessed

twenty-five points for the armed robbery conviction.

Again, the Court of Appeals concluded that this was an

2

error because MCL 777.33(2)(a) provides that “[i]n multiple

offender cases, if 1 offender is assessed points for death

or physical injury, all offenders shall be assessed the

same number of points.” The majority opinion again agrees.

MCL 769.31(d) provides:

“Offense characteristics” means the elements
of the crime and the aggravating and mitigating
factors relating to the offense that the
legislature determines are appropriate. For
purpose of this subdivision, an offense described
in section 33b of 1953 PA 232, MCL 791.233b, that
resulted in a conviction and that arose out of
the same transaction as the offense for which the
sentencing guidelines are being scored shall be
considered as an aggravating factor. [Emphasis
added.]

Therefore, in general, when scoring offense variables, the

trial court can only consider the offense for which the

sentencing guidelines are being scored and those enumerated

offenses that arose out of the same transaction as that

offense and that resulted in convictions.1

In this case, the discharging of the firearm and the

resulting injury to Bish are not factors that relate to the

robbery offense—the offense for which the sentencing

guidelines are being scored—but are, instead, factors that

1
Although the majority opinion believes that it is
“unnecessary to draw . . . sharp lines . . . between
‘offenses’ stemming from [the same] event,” ante at 12 n
10, the Legislature, as evidenced by the express language
of MCL 769.31(d), believes otherwise.

3

relate to the assault offense—an offense of which defendant

was never convicted. Therefore, the trial court erred when

it considered these factors in scoring defendant’s robbery

conviction.

MCL 777.31(1) and MCL 777.33(1) provide that OV 1 and

OV 3 are to be scored “by determining which of the

following apply and by assigning the number of points

attributable to the one that has the highest number of

points.” With regard to OV 1, defendant argues that

fifteen points was the highest score attributable to either

offender for the robbery because a weapon was pointed, but

not discharged during the robbery. Northington did not

discharge the weapon until after the robbery. Similarly,

with regard to OV 3, defendant argues that zero points was

the highest score attributable to either offender for the

robbery because nobody was injured during the robbery.

Northington did not shoot Bish until after the robbery.

MCL 769.31(d) explicitly states that “an offense

described in section 33b of 1953 PA 232, MCL 791.233b, that

resulted in a conviction and that arose out of the same

transaction as the offense for which the sentencing

guidelines are being scored shall be considered as an

aggravating factor.” This is clearly an exception to the

general rule—the general rule being that the relevant

4

factors are those that relate to the offense being scored,

and the exception being that, if the defendant is convicted

of certain enumerated offenses that arose out of the same

transaction as the offense being scored, these offenses can

be taken into consideration in scoring. Although assault

with intent to murder is one of the enumerated offenses and

the assault arguably arose out of the same transaction as

the armed robbery, defendant was not convicted of assault

with intent to murder. Therefore, the fact that

Northington shot Bish cannot be considered in scoring

defendant’s robbery conviction. The trial court took this

shooting into consideration when it scored OV 1 and OV 3,

and, thus, improperly scored OV 1 and OV 3.

That the general rule is that the relevant factors are

those that relate to the offense being scored is further

supported by the fact that some offense variables

specifically provide otherwise. For instance, MCL

777.44(2)(a) provides that in scoring OV 14 (whether the

offender was a leader in a multiple offender situation),

“[t]he entire criminal transaction should be considered.”

In other offense variables, the Legislature unambiguously

made it known when behavior outside of the scored offense

is to be taken into account. OV 12, for example, applies

to acts that occurred within twenty-four hours of the

5

sentencing offense and have not resulted in separate

convictions. MCL 777.42(2)(a). OV 13 explicitly permits

scoring for “all crimes within a 5-year period, including

the sentencing offense” regardless of whether they resulted

in conviction. MCL 777.43(2)(a). OV 16 provides that

“[i]n multiple offender or victim cases, the appropriate

points may be determined by adding together the aggregate

value of the property involved, including property involved

in uncharged offenses or charges dismissed under a plea

agreement.” MCL 777.46(2)(a). Finally, OV 8 (scoring for

victim asportation or captivity) specifically focuses on

conduct “beyond the time necessary to commit the offense.”

MCL 777.38. That the Legislature has explicitly stated in

some offense variables that conduct not related to the

offense being scored can be considered strengthens the

conclusion that, unless stated otherwise, only conduct that

relates to the offense being scored may be considered.

OV 9 is to be scored at ten points if two to nine

victims were involved. MCL 777.39(1)(c). “[E]ach person

who was placed in danger of injury or loss of life” is to

be counted as a victim. MCL 777.39(2)(a). OV 9 does not

require multiple offenders to receive the same score. Both

defendant and Northington were assessed ten points. The

Court of Appeals concluded that this was error because only

6

Deborah Sevakis was placed in danger during the robbery. I

agree. The robbery was complete by the time Bish

intervened. Bish was not the victim of the robbery; he was

the victim of the assault.2 Defendant was not charged with

the assault.3 For the same reason that the assault cannot

2
The majority opinion accuses me of “fail[ing] to
apply the plain language of the statute.” Ante at 16 n 14.
However, with all due respect, I believe it is the majority
opinion that fails to apply the clear language of the
statute. MCL 769.31(d) specifically states that “the
offense” and any enumerated offenses “that resulted in a
conviction and that arose out of the same transaction as
the offense for which the sentencing guidelines are being
scored shall be considered . . . .” In this case, “the
offense for which the sentencing guidelines are being
scored” is armed robbery. Defendant was not convicted of
assault, or any other offense. Under the express language
of the statute, only the robbery, not the assault, can be
considered.
3
MCL 769.31(d) states that “‘[o]ffense
characteristics’ means the elements of the crime and the
aggravating and mitigating factors relating to the offense
that the legislature determines are appropriate.”
Therefore, I agree with Justice Young that the trial court
can “consider not only the actual elements constituting the
offense, but also any aggravating or mitigating factors
associated with the offense . . . .” Post at 2 (emphasis
in original). However, in this case, the disputed factors
relate not to the offense—armed robbery—but to another
offense—assault—that occurred after the offense [of armed
robbery] was already completed and that defendant was never
even charged with, let alone convicted of. As explained
above, MCL 769.31(d) specifically states that only offenses
that have resulted in convictions can be considered.
Because defendant was not convicted of an assault, the
assault cannot be considered in scoring the armed robbery
offense. To allow the assault to be considered, even
though it was not even charged, would be to circumvent the
guidelines by scoring a defendant on the basis of
(continued…)

7

be considered when scoring OV 1 and OV 3, it cannot be

considered when scoring OV 9.4

(…continued)
circumstances constituting an offense that was never even
charged. However, I do agree with Justice Young that the
assault may be considered by the court in imposing an
upward departure as long as the standards articulated in
People v Babcock, 469 Mich 247; 666 NW2d 231 (2003), have
been adhered to.
4
Chief Justice Corrigan concludes that “[b]ecause
armed robbery is a transactional offense, and Northington
shot Bish immediately after she stole Sevakis’ purse and
before she reached a place of temporary safety, the trial
court properly considered the shooting when determining
defendant’s score under OV 1[,] OV 3” and OV 9. Post at 5,
10. Assuming arguendo that armed robbery is a
transactional offense, I still cannot agree that the trial
court properly scored OV 1, OV 3, and OV 9. Under a
transactional view, a person can be found guilty of armed
robbery if, before reaching a place of temporary safety,
all of the elements of armed robbery are completed.
However, that does not mean that an armed robbery can never
be completed until a person has reached a place of
temporary safety. In other words, although it is possible
that an armed robbery will not be completed until defendant
has reached a place of temporary safety, it is also
possible that the crime will be completed before then.
Here, all the elements of the armed robbery were completed
before defendant reached a place of temporary safety.
There cannot be two endings to a crime. In other words, it
cannot be that the crime of armed robbery was completed
once defendant stole the purse and it was also completed
once she reached a place of temporary safety. The crime
had to have been completed at either the latter or the
former time. If all the elements had not been completed,
we could look, under a transactional view, to defendant’s
conduct until she reached a place of temporary safety to
establish all of the elements of the armed robbery. Here,
however, that is not necessary because all the elements
were, in fact, completed before she reached a place of
temporary safety. Because the assault occurred after the
armed robbery and because defendant was never convicted of
(continued…)

8

 OV 1 should only have been scored at fifteen points

because Northington only pointed a firearm during the

robbery; she did not discharge a firearm during the

robbery. OV 3 should have been scored at zero points

because the robbery victim did not suffer from a life-

threatening injury; only the assault victim suffered from a

life-threatening injury. Finally, OV 9 should have been

scored at zero points because there was only one robbery

victim; Bish was an assault victim, but not a robbery

victim. Therefore, I would affirm the judgment of the

Court of Appeals, which concluded that the trial court

erred in scoring OV 1, OV 3, and OV 9, albeit on different

grounds.

Stephen J. Markman
Clifford W. Taylor

(…continued)

the assault, it cannot be considered when scoring OV 1, OV

3, and OV 9.

Contrary to the majority opinion’s contention, I do
not determine here whether armed robbery is a transactional
offense. I simply note that, even if armed robbery is a
transactional offense, the trial court erred in scoring OV
1, OV 3, and OV 9.

9

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 124083

LATASHA GENISE MORSON,

Defendant-Appellee.

_______________________________

YOUNG, J. (concurring in part and dissenting in part)

I agree with the majority that the trial court did not

err when it assessed ten points for offense variable (OV) 9.

The language of MCL 777.39(2)(a) clearly states that each

person “placed in danger of injury or loss of life” is to

be counted as a victim. Because a gun was fired at him,

James Bish was placed in danger even if he had not

intervened or been injured.

However, I dissent from that portion of the majority

opinion holding that the trial court erred in assessing

twenty-five points each for OV 1 and OV 3. Because I believe

that the guidelines were scored correctly, I would affirm

the trial court’s scoring of those guidelines.
 I disagree with the majority's conclusion that

defendant was entitled to have her armed robbery scores

match Northington's armed robbery scores. I believe the

majority's position is based on a flawed assumption

regarding the "multiple offender" provision of OV 1 and OV

3.

When scoring the guidelines, the court is instructed

by MCL 769.31(e)1 to consider not only the actual elements

constituting the offense, but also any aggravating or

mitigating factors associated with the offense as

designated in the guidelines:

"Offense characteristics" means the elements
of the crime and the aggravating and mitigating
factors relating to the offense that the
commission determines are appropriate and
consistent with the criteria described in section
33(1)(e) of this chapter. For the purposes of
this subdivision, an offense described in section
33b of 1953 PA 232, MCL 791.233b, that resulted
in a conviction and that arose out of the same
transaction as the offense for which the
sentencing guidelines are being scored shall be
considered as an aggravating factor. [Emphasis
[2]
added.]

1
Redesignated as subsection d in a 2002 amendment.
2002 PA 31. The amendment also designated responsibility
to the "legislature" instead of the "commission."
2
The second sentence of MCL 769.31(e), which is not at
issue in this case, mandates the trial court to consider
certain convictions as aggravating factors when they result
in a conviction and they arose out of the “same
transaction” as the offense being scored. In instructing
the sentencing court to view the entire "transaction," I do
(continued…)

2

Therefore, an “offense characteristic” clearly encompasses

more than merely the offense itself–it contemplates both

positive and negative factors “related to,” but not

constituting, the charged offense.

When scoring OV 1, which takes into account the

aggravated use of a weapon, MCL 777.31(2) specifically

requires a trial court to:

(a) Count each person who was placed in
danger of injury or loss of life as a victim.

(b) In multiple offender cases, if 1
offender is assessed points for the presence or
use of a weapon, all offenders shall be assessed
the same number of points.

Likewise, when scoring OV 3, which assesses physical

injury to a victim, MCL 777.33(2)(a) requires that:

(…continued)
not believe that this phrase describes the transactional
approach to robbery as recognized by this Court in People v
Randolph, 466 Mich 532; 648 NW2d 164 (2002). Rather, I
believe that the plain meaning of the phrase "same
transaction" refers to the entire criminal episode or
event, not the term "transactional test," which is unique
to robbery cases and has never received legislative
recognition. In fact, when the Legislature recently amended
the unarmed robbery statute in response to this Court’s
opinion in Randolph, the Legislature did not use the terms
“transaction” or “transactional” in its amendment. See MCL
750.530 as amended by 2004 PA 128. In any event, the
“transactional” analysis offered by Justices CORRIGAN AND
MARKMAN is irrelevant to the first sentence that applies in
this case.

3

 In multiple offender cases, if 1 offender is
assessed points for death or physical injury, all
offenders shall be assessed the same number of
points.

The majority opinion rests upon the analytical

assumption that the requirement of equal scores for

"multiple offenders" means that identical crimes must be

compared to identical crimes. However, as illustrated

above, the plain language of the MCL 777.31(2)(b) and MCL

777.33(2)(a) clearly do not require that the convicted

offenses must be identical. Rather, the statutes

contemplate the comparison of identical offense variable

scores. I believe that the correct reading of the statutes

requires that, to the degree that both defendants are

convicted of crimes requiring the scoring of OV 1 and OV 3,

the second defendant would get the same OV 1 and OV 3 scores

as the first defendant.

Here, defendant was scored twenty-five points for her

armed robbery OV 1 score. This score is supported by the

evidence because a firearm was discharged at or toward

James Bish, and the discharge of the firearm was an

aggravating factor related to the armed robbery.

Defendant's OV 1 score for use of a weapon coincides with

Northington's OV 1 score for use of a weapon, as shown in

the table below.

4

 Additionally, defendant was scored twenty-five points

for her OV 3 score. This score is supported by the evidence

because of the life-threatening gunshot injury suffered by

James Bish, which was an aggravating factor related to the

armed robbery. Defendant’s OV 3 score of twenty-five points

for physical injury to a victim is identical to

Northington’s OV 3 score for physical injury to a victim, as

shown in the table below:

1 OV 3
OV
DEFENDANT &
Aggravated use of Physical injury
OFFENSE
weapon to victim

Northington 25 points 25 points
Assault with intent
to murder

Northington 15 points 0 points
Armed robbery

Morson 25 points 25 points
Armed robbery

The majority errs in simply comparing identical

convictions. However, as noted above, the directives

contained in OV 1 and OV 3 do not require equality of

criminal convictions—they merely necessitate that the

offense variables be scored identically. Because defendant

received the same OV 1 and OV 3 scores as her cohort, I do

5

not believe that defendant is entitled to resentencing.3

As Chief Justice Corrigan notes in her concurring

opinion, there is an arguable tension between the

sentencing instructions requiring assessment of the highest

number of points shown by the evidence and the instruction

included in some offense variables directing the court to

assess equal OV points in multiple offender situations.

However, I believe that enforcing the statute as written,

which instructs a sentencing court to compare offense

3
Contrary to the majority's conclusion, the
analysis I advocate is not inconsistent with MCL 777.21(2).
The trial court is still required to score each convicted
offense, but is permitted, under the clear language of the
statute, to consider aggravating factors “related to” the
convicted charge. In addition, the Legislature specifically
contemplated different defendants being convicted of
different offenses, as evidenced by the instruction that
offense variables be scored the same for "multiple
offenders," rather than limiting its instruction to
offenders convicted of identical offenses.

While my approach is considered “illogical” by the
majority, I believe that it best adheres to the plain
language of the statute. When the language is clear, it is
my responsibility to simply apply the facts to the law. The
genesis of the error in this case is the trial court's
decision to disregard the law when it sentenced Iesha
Northington. The trial court failed to consider the facts
of both convictions under the second sentence of MCL
769.31(e) when sentencing Northington, and failed to assess
the highest number of points for OV 1 and OV 3 that the
evidence supported. See MCL 777.31(1) (OV 1); MCL 777.33(1)
(OV 3). When the trial court failed to follow the law, it
injected an error that defendant now seeks to perpetuate.

6

variable to like offense variable, promotes both accuracy

and equality in the scoring of the guidelines.4

For the reasons stated herein, I dissent from that

portion of the majority opinion holding that the trial

court erred in scoring offense variables 1 and 3. Because I

believe that the guidelines were scored correctly, I would

reverse the Court of Appeals judgment and reinstate the

sentence imposed by the circuit court.

Robert P. Young, Jr.

4
While my interpretation and application of the
statute does not prevail in this case, I note that, if
factors arising before or after the offense cannot be
calculated in the guidelines, they are certainly relevant
sentencing factors not adequately contemplated by the
guidelines. If these factors are substantial and
compelling, a sentencing court may utilize those factors in
imposing an upwardly departing sentence. People v Babcock,
469 Mich 247; 666 NW2d 231 (2003).

7