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Can OV 6 be scored at 25 points when the sentencing offense is conspiracy to deliver a controlled substance, causing death (MCL 750.317a)?

Yes, OV 6 should be scored for a conviction under MCL 750.317a.

“For all crimes against a person, . . . [s]core offense variables 5 and 6 for homicide, attempted homicide, conspiracy or solicitation to commit a homicide, or assault with intent to commit murder.” MCL 777.22(1). Any crime in which a person’s death is an element of the crime is a “homicide.” MCL 777.1(c). Therefore, a violation of MCL 750.317a is a “homicide” for purposes of OV 6. 

A violation of MCL 750.317a is a crime against a person. Although conspiracy is a crime against public safety and not a crime against a person, MCL 777.18 (see also People v Pearson, 490 Mich 984 (2012)), MCL 777.22(1) specifically directs the court to score OV 6 for conspiracy to commit a homicide. See People v Tarver, unpublished opinion per curiam of the Court of Appeals, issued August 7, 2012 (Docket No. 300775) (because “MCL 777.22(1) directs a trial court to score OV 6 for . . . ‘conspiracy . . . to commit a homicide,’” and “because[] when [the] defendant conspired to commit [assault with intent to murder], he necessarily conspired to commit a homicide[,]” the trial court was required to score OV 6).

Therefore, OV 6 should be scored, and 25 points should be scored if there is evidence that the defendant “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). (Alternatively, if there is only evidence that “there was gross negligence amounting to an unreasonable disregard for life,” only ten points should be scored. MCL 777.36(1)(c).). See also People v Berridge, ___ Mich ___, ___ (2021) (holding “OV 6 should be assigned 25 points only where there is a very high risk of death, meaning more than the risk attendant to other deliveries, or that the defendant had particularized knowledge that this delivery was more probably than not going to lead to great bodily harm or death”).

Tags: OV 06

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