In a unanimous opinion, the Michigan Supreme Court held in People v. Gloster that a trial court may not consider the conduct of a co-offender when assessing 15 points for “predatory conduct” under Offense Variable (OV) 10 (exploitation of a vulnerable victim), MCL 777.40. In direct contrast to other OVs, MCL 777.40 does not contain language directing the court to assess a defendant points on the basis of conduct by that defendant’s co-offenders in multiple-offender situations.
Defendant was convicted of aiding and abetting an armed robbery. Defendant had driven four men to a market in Hamtramck. While defendant stayed in the car, two of the men assaulted a woman and tried to steal her necklace. Defendant then acted as their getaway driver. During sentencing, the trial court assessed 15 points for predatory conduct under OV 10. Defendant argued that it was erroneous to base defendant’s OV 10 score on his co-offenders’ conduct and that the point should be assessed only for the individual defendant’s conduct. The Court of Appeals affirmed. In doing so, it declined to address the issue, instead, the Court concluded that “the record demonstrates that the trial court scored defendant for his conduct—specifically, his role in selecting a vulnerable victim.” Defendant appealed and the Supreme Court ordered and heard oral argument on the issue.
The Supreme Court held that, in general, a sentencing court may not assess points for a defendant solely on the basis of his or her co-offenders’ conduct unless the OV at issue specifically indicates to the contrary. Under MCL 777.40(3)(a), predatory conduct is preoffense conduct directed at a victim, or a law enforcement officer posing as a potential victim, for the primary purpose of victimization. The Legislature explicitly provided in several OVs that all offenders in a multiple-offender situation, including the defendant, should receive the same score, even if the conduct that serves as the basis for scoring those OVs was solely that of a co-offender. For example, OV 1 (aggravated use of a weapon) 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.” In direct contrast to other OVs, MCL 777.40 does not contain language directing the court to assess a defendant points for OV 10 on the basis of conduct by that defendant’s co-offenders in multiple-offender situations. Accordingly, a sentencing court may not assess a defendant 15 points for predatory conduct under OV 10 solely on the basis of the predatory conduct of the defendant’s co-offenders. Accordingly, the judgment of the Court of Appeals was reversed and the case remanded to trial court.
