C People of Michigan v. Mario Cortize Jackson ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
August 29, 2024
Plaintiff-Appellee,
v No. 366078
Wayne Circuit Court
MARIO CORTIZE JACKSON, LC No. 21-004539-01-FH
Defendant-Appellant.
Before: O’BRIEN, P.J., and CAVANAGH and SHAPIRO*, JJ.
O’BRIEN, P.J. (concurring).
I agree with the result reached by the majority, but I disagree with its reasoning in two
respects.
First, unlike the majority, I do not perceive any “tension” between People v McGraw, 484
Mich 120; 771 NW2d 655 (2009), and People v Laidler, 491 Mich 339; 817 NW2d 517 (2012).
McGraw held that, when scoring OVs, courts cannot use post-offense conduct. McGraw, 484
Mich at 122. Laidler had nothing to do with post-offense conduct, nor does anything in that
opinion suggest that it did. As relevant to this case, Laidler held that, when a person is killed
during the commission of a non-homicide offense, whether the person’s death “result[ed] from the
commission” of the crime for purposes of OV 3 is a question of factual causation. Laidler, 491
Mich at 344-346. Despite being decided only three years after McGraw, Laidler never cited
McGraw, suggesting that our Supreme Court did not see the cases as related.
Regardless, to any extent that the majority is correct that Laidler was in “tension” with
McGraw, this Court in People v Biddles, 316 Mich App 148, 165; 896 NW2d 461 (2016), resolved
the tension by clarifying that OV3 does not allow courts to consider post-offense conduct pursuant
to McGraw, even after Laidler. See id. (explaining that courts “can only take into consideration
defendant’s sentencing offense for purposes of scoring OV 3”). Biddle addressed how Laidler and
McGraw fit together in the context of addressing whether it was appropriate to score 100 points
for OV3—the same issue presented by this case.
*Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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Second, and more substantively, I disagree with the majority’s analysis of OV1. The trial
court scored 25 points for OV1 based on uncharged conduct—the shooting of Cherron Ely and
Ricardo Payne. That is made plain by the trial court’s analysis.1 Defendant was not acquitted of
that shooting, so it does not constitute acquitted conduct that the trial court was barred from
considering under People v Beck, 504 Mich 605; 939 NW2d 213 (2019). Rather, the shooting was
post-offense conduct, which the court could not consider under McGraw.
/s/ Colleen A. O’Brien
1
Explaining its scoring of 25 points for OV1, the court said:
So I think when considering the [presentence investigation report], which the Court
can, and when evaluating it by a preponderance of the evidence standard which is
the standard in assessing guidelines, I think you can say that the fact that
[defendant] had a gun, that the other two individuals that arrived had bullet holes
in their car and in addition to bullet holes in their bodies the Court can find that by
a preponderance of the evidence, considering there’s no indication that Miss
Latisha Ely had a gun, that those bullets came from [defendant’s]. So I think when
looking at OV-1, it says a firearm was discharged at or towards a human being or
victim, was cut or stabbed with a knife or other cutting or stabbing weapon, I think
that can be shown here. So the Court is going to keep OV-1 at twenty-five.
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