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Can you score 25 points when the defendant pleaded guilty to a lesser offense that does not include shooting at a person as an element?

Question as originally presented: When scoring OV 1, defendant intentionally shot a pistol from a moving vehicle, 5 rounds towards the victims’ vehicle, successfully shooting two tires causing them to go flat. Defendant was originally charged with Assault with Intent to Murder, but pleaded to Weapons-Firearm Discharging from Vehicle. Should I score 25 points as the bullets were being directed at the victims or only score 15 points as the defendant is only admitting to wanting to shoot out the victims’ tires and this was not taken to trial?

MCL 777.31(1)(a) provides in relevant part that you should score 25 points when a firearm was discharged at or toward a human being. The plain language of the statute does not consider what the person discharging the firearm admits to or intended; only whether a firearm was discharged at or toward a human being. Accordingly, even if the defendant only pleaded to shooting at or toward the tires of the car, if there is a preponderance of the evidence to show that the defendant discharged the firearm at or toward the victims it is appropriate to score 25 points. When sentencing, the court cannot consider conduct of which a defendant was acquitted, but if a factfinder has not considered the evidence, “no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard.” People v Beck, 504 Mich 605, 626, 629 (2019). In your case, the defendant pleaded guilty to a specific charge so there was no trial where a jury or judge found the facts; accordingly, consideration of all the defendant’s conduct during the sentencing offense is permissible because the defendant was not acquitted of any specific conduct. Id.; People v McGraw, 484 Mich 120, 133 (2009). Therefore, a sentencing court only needs to find a preponderance of the evidence in support of the conclusion that the defendant discharged a firearm at or toward a human being. See People v Osantowski, 481 Mich 103, 111 (2008). 

If the only evidence you have is that the defendant shot at the tires of the victims’ car, it is possible a court could conclude that no firearm was discharged at or toward a human being. However, it is also possible a court could conclude that the act of shooting at an occupied vehicle alone constitutes shooting “at or toward” a human being. An unpublished, and therefore nonbinding, case has held that 25 points were properly scored where the evidence showed the defendant was shooting a handgun toward a car with a person in it and the car was shot twice, and there was another person standing four or five feet in front of the defendant at the time the defendant was shooting. People v Cannon, unpublished per curiam opinion of the Court of Appeals, issued May 28, 2020 (Docket No. 347438), p 4. In another unpublished and nonbinding case, the Court held that 25 points were properly assessed under OV 1 based on evidence that a firearm was discharged toward an occupied vehicle. People v Jorden, unpublished per curiam opinion of the Court of Appeals, issued May 21, 2002 (Docket No. 232246), p 2. Ultimately, resolution of your question depends on what all the facts of your case show, but the defendant’s guilty plea to weapons-firearm discharging from vehicle does not preclude scoring 25 points if the facts support it.

Tags: OV 01 OV 02

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