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Can you count felonies that were dismissed and felonies that make up the sentencing offense when scoring OV 12?

Question as originally presented: The defendant was charged with Unlawful Imprisonment, Felonious Assault, and two counts of Resisting & Obstructing a Police Officer. The Unlawful Imprisonment and Felonious Assault charges were dismissed. The defendant was holding her mother at knifepoint in her apartment when police arrived. She then pepper sprayed law enforcement officers. Can I score OV 12 as the defendant committed four felonies within 24 hours?

Under OV 12, a felonious criminal act is contemporaneous if both of the following circumstances exist: (1) the criminal act occurred within 24 hours of the sentencing offense, MCL 777.42(2)(a)(i), and (2) the criminal act has not and will not result in a separate conviction, MCL 777.42(2)(a)(ii). OV 12 requires the court to “look beyond the sentencing offense and consider only those separate acts or behavior that did not establish the sentencing offense.” People v Light, 290 Mich App 717, 723 (2010). “What matters, [for purposes of scoring OV 12], is whether the ‘sentencing offense’ can be separated from other distinct ‘acts.’” People v Carter, 503 Mich 221, 227 (2019) (for purposes of the OVs, the term “sentencing offense” means “the crime of which the defendant has been convicted and for which he or she is being sentenced”) (quotation marks and citation omitted). Since the defendant in your case was convicted of resisting and obstructing, any acts that established that offense cannot be relied on to establish additional felonious criminal acts. Assuming that the pepper spraying is what formed the basis of the sentencing offense, you can consider the defendant’s actions that made up the basis for the unlawful imprisonment and felonious assault charges (presumably holding the victim at knifepoint) as contemporaneous felonious criminal acts under OV 12. From the facts you provided it is not clear exactly how many contemporaneous felonious criminal acts occurred that were not part of the sentencing offense, but it seems like it is less than four when you don’t count the sentencing offense. For additional examples of how OV 12 has been scored in other cases, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 3, Section 3.24. No legal authority has directly addressed the exact scenario that your question presents, and it is ultimately a question of law for the trial court to decide.

Tags: OV 12

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