OV 13 Means “Felonious Activity,” Not “Felony Convictions”: Denial of Leave in People v. Carey and the Unresolved Scope of Kaczmarek for Post‑Revocation Guidelines Challenges

Introduction

In People of Michigan v. Kelly Paul Carey, SC 166727 (Oct. 3, 2025), the Michigan Supreme Court denied the defendant’s application for leave to appeal from the Court of Appeals’ denial of leave. Although the Court issued only an order, Justice Hood authored a separate concurring statement (joined by Justices Bolden and Thomas) that performs two important functions: (1) it explains why the challenged scoring of Offense Variable (OV) 13—continuing pattern of criminal behavior—was likely correct under settled law, and (2) it highlights a systemic and unresolved question about whether probationers may challenge sentencing-guideline scoring on direct appeal after probation revocation in light of People v. Kaczmarek, 464 Mich 478 (2001).

The case arises from a 2020 assault in which the defendant struck and kicked his girlfriend and used the butt of a knife. He pleaded no contest to assault with a dangerous weapon, MCL 750.82, and to second-offense domestic violence, MCL 750.81(2), (4). At the initial sentencing, the trial court scored OV 13 at 25 points based on a pattern of criminal behavior reflected by three prior incidents of resisting or obstructing a police officer. The defendant, sentenced as a fourth-offense habitual offender, MCL 769.12, received 18 months’ probation and did not appeal. After he violated probation in 2022, the court revoked probation and imposed a custodial sentence of 58 to 240 months. The defendant then sought a new probation-violation hearing for ineffective assistance of counsel and moved to correct OV 13 and for resentencing. The trial court and the Court of Appeals denied relief.

While the Court’s order is nonprecedential, the concurrence both reaffirms the proper construction of OV 13 and spotlights a recurring appellate-rights problem for probationers, signaling the need for future clarification by the Supreme Court.

Summary of the Opinion

The Michigan Supreme Court denied leave to appeal, concluding it was not persuaded that the questions presented warranted review. Justice Hood concurred in the denial. He reasoned that the trial court likely correctly assessed 25 points for OV 13 because OV 13 is scored based on “felonious criminal activity,” not merely felony convictions, and “all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction,” MCL 777.43(2)(a). Relying on People v. Bemer, 286 Mich App 26, 33 (2009), and People v. Jackson, 504 Mich 929, 930 (2019), the concurrence explains that OV 13 looks to felonious acts defined by MCL 761.1(f), and the underlying conduct here—resisting or obstructing a police officer under MCL 750.81d(1)—is a felony even if a defendant ultimately pleads to a reduced misdemeanor.

Beyond OV 13, the concurrence identifies an unresolved question: Does Kaczmarek bar a probationer from challenging sentencing-guidelines scoring on direct appeal after probation is revoked? Kaczmarek held that a probation violation is not a new crime and that an appeal after revocation is limited to issues that could not have been raised earlier and “issues arising from the resentencing.” Justice Hood suggests a broad reading risks precluding many meritorious challenges due to practical disincentives to appeal while on probation. He urges that, at some point, the Court must clarify whether guidelines issues fall within “issues arising from the resentencing.” In the interim, he advises trial courts and practitioners to consider adjusting advice-of-rights during pleas and sentencings.

Analysis

Precedents and Authorities Cited

MCL 777.43 (OV 13: Continuing pattern of criminal behavior). OV 13 scores “felonious criminal activity,” and under subsection (2)(a), “all crimes within a 5-year period, including the sentencing offense, shall be counted regardless of whether the offense resulted in a conviction.” The operative concept is felonious acts, not whether a conviction was obtained.
People v. Bemer, 286 Mich App 26, 33 (2009). “Under MCL 777.43, the trial court must score points under OV 13 on the basis of a defendant’s felonious acts that constitute a continuing pattern of criminal behavior.” Bemer underscores that OV 13 is conduct-oriented.
People v. Jackson, 504 Mich 929, 930 (2019). Clarifies that OV 13 “does not expressly incorporate the sentencing guidelines’ offense classifications.” Instead, OV 13 is scored for “felonious criminal activity,” and “felony” is defined by MCL 761.1(f) as an offense punishable by more than one year or expressly designated a felony. Jackson cautions courts against importing guideline crime-class labels into OV 13’s analysis.
MCL 761.1(f) (definition of felony). A felony is an offense punishable by imprisonment for more than one year or one expressly designated as a felony. This global definition governs OV 13’s “felonious” inquiry per Jackson.
MCL 750.81d(1) (resisting or obstructing a police officer). This provision makes certain resisting/obstructing conduct a felony punishable by up to two years’ imprisonment, supplying the “felonious” character of the underlying acts considered for OV 13.
People v. Kaczmarek, 464 Mich 478 (2001). A probation violation is not a crime; probation revocation “clears the way for resentencing on the original offense,” and an appeal after revocation is “limited in scope” to issues that could not have been raised on direct appeal and “issues arising from the resentencing.” The decision frames the boundaries of appellate review post-revocation.
MCL 771.4(5) (effect of probation revocation). Upon revocation, “the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made,” confirming that revocation triggers a new sentencing proceeding for the original offense.

Legal Reasoning

The Court denied leave to appeal, and Justice Hood’s concurrence explains why the OV 13 scoring challenge was unlikely to succeed. The defendant’s original OV 13 score of 25 points rested on three prior episodes of assaulting, resisting, or obstructing a police officer. Although the defendant had misdemeanor convictions for attempts, the relevant inquiry under OV 13 is whether the defendant engaged in “felonious criminal activity,” not whether the activity culminated in felony convictions. Because the underlying conduct fit MCL 750.81d(1)—a felony—those acts were properly usable for OV 13. This logic follows directly from:

The text of MCL 777.43(2)(a), which explicitly counts crimes “regardless of whether the offense resulted in a conviction.”
Bemer’s holding that OV 13 is scored on “felonious acts.”
Jackson’s clarification that OV 13 does not incorporate guideline crime-class labels; rather, the felony status follows MCL 761.1(f)’s definition.

The concurrence does note that the trial court initially justified OV 13 by reference to a guidelines crime class (Class H). Jackson cautions against that approach. Still, because the underlying conduct satisfied the statutory definition of felonious activity, the result (assessing 25 points) was likely correct even if the original rationale was imprecise.

On the appellate-rights question, the concurrence recognizes a structural tension in Kaczmarek’s framework. A broad reading would bar probationers from challenging original guideline scoring after revocation on the theory that such a challenge could have been raised on direct appeal from the initial judgment. Yet the same Kaczmarek framework acknowledges that a revocation proceeding culminates in a new sentencing and that appeals after revocation encompass “issues arising from the resentencing.”

Justice Hood argues that, as a practical matter, guideline scoring frequently becomes outcome-determinative only when probation is revoked and incarceration is imposed. Before any violation, probationers typically have little incentive to pursue appellate review of scoring errors because:

They are satisfied with a noncustodial sentence and may wish to avoid the time and cost of appeal.
The usual remedy for a guidelines error is a remand for resentencing; a person on probation commonly sees no advantage in risking a resentencing while they are not incarcerated.

Given these dynamics, a broad application of Kaczmarek could unintentionally foreclose correction of genuine guidelines errors, leading to prison sentences imposed under a wrongly calculated range. The concurrence suggests that “issues arising from the resentencing” should be read to include guideline scoring when the court imposes a new custodial sentence after revocation. The Court does not decide the question here—because OV 13 was likely scored correctly—but flags the need for future clarification. In the meantime, the concurrence encourages trial courts and practitioners to modify advice-of-rights language at pleas and sentencings to address the risk that failing to appeal guidelines scoring initially could limit later review.

Impact and Practical Consequences

Although the order denying leave is not itself precedential, the concurrence has several practical implications for Michigan sentencing practice and appeals:

Reinforced understanding of OV 13: Trial courts should continue to score OV 13 based on proven “felonious criminal activity” in the five-year window, whether or not that conduct resulted in a felony conviction. Practitioners should focus their arguments on whether the conduct meets the MCL 761.1(f) definition of “felony,” rather than on labels or guideline crime classes.
Record development at original sentencing: Because OV 13 looks to conduct, sentencing records should clearly establish the factual basis for any alleged felonious activity within the five-year period. Defense counsel should scrutinize whether the conduct, as established in the record, actually satisfies the elements and punishment thresholds that make it “felonious.”
Post-revocation appeals posture remains unsettled: The scope of Kaczmarek as applied to guidelines challenges after revocation remains open. Until the Supreme Court clarifies it, there may be uneven treatment across cases and panels regarding whether guideline scoring can be raised on direct appeal from an order revoking probation and imposing incarceration.
Adjustments to advice-of-rights: In line with Justice Hood’s suggestion, courts and counsel should consider advising defendants at plea and sentencing that failure to promptly pursue appellate review of guideline scoring may limit their ability to challenge those scores if probation is later revoked.
Counsel’s strategy while client is on probation: Given the potential for later incarceration, counsel should weigh the costs and benefits of seeking timely correction of scoring errors. Where an error materially affects the range, it may be prudent to seek correction despite the client’s current noncustodial status.

Complex Concepts Simplified

Offense Variable (OV) 13—Continuing Pattern of Criminal Behavior: Part of Michigan’s sentencing guidelines. It measures whether the defendant’s conduct shows a pattern of “felonious criminal activity” over a five-year period. Importantly, it counts conduct even if there was no conviction for that conduct, so long as the conduct would qualify as a felony.
Felonious criminal activity vs. felony conviction: “Felonious” means the conduct meets the legal definition of a felony (punishable by more than one year or expressly designated a felony). OV 13 looks to conduct, not just to entered convictions. A plea reduction to a misdemeanor does not negate the felonious nature of the underlying acts for OV 13 purposes.
Probation revocation is not a new crime: Violating probation is not itself a criminal offense. If probation is revoked, the court sentences the defendant again on the original offense “as if” probation had not been granted.
Appeal after probation revocation (Kaczmarek): A defendant’s appeal after revocation is limited. Generally, they cannot re-raise issues they could have appealed the first time. They can, however, raise issues that arise specifically from the resentencing that follows revocation. Whether guideline scoring qualifies as such an issue remains unsettled.
Leave to appeal vs. appeal as of right: In Michigan, many appeals—especially from guilty pleas or orders denying relief—require asking the appellate court for permission to appeal (leave). The appellate court can deny leave without resolving the merits.
Habitual-offender enhancement: Michigan law increases possible penalties for defendants with qualifying prior convictions, here the fourth-offense habitual enhancement under MCL 769.12.

Case Background and Procedural Posture

The underlying case began with a 2020 domestic incident in which Kelly Paul Carey assaulted his girlfriend, including striking her with the butt of a knife. He pleaded no contest to assault with a dangerous weapon (MCL 750.82) and to second-offense domestic violence (MCL 750.81(2), acknowledging a second offense per MCL 750.81(4)). At the initial sentencing, the trial court scored OV 13 at 25 points based on a purported pattern of criminal behavior shown by three prior incidents of assaulting/resisting/obstructing a police officer. Defense counsel objected, arguing those were misdemeanors and thus not a “pattern of felonious behavior.” The trial court disagreed, reasoning that the offenses were categorized as Crime Class H in the guidelines, and imposed an 18-month probationary sentence as a fourth habitual offender. The defendant did not seek leave to appeal.

In 2022, the defendant violated probation by threatening a neighbor with a knife and making a threat (“Snitches and bitches get stitches”); when arrested the next day, his blood alcohol level was .30 percent. He pleaded guilty to two violations, and the court found additional violations at a hearing. The court revoked probation and imposed a prison term of 58 to 240 months. The defendant moved for a new probation-violation hearing (ineffective assistance of counsel) and to rescore OV 13 with resentencing; the trial court denied both motions. The Court of Appeals denied leave. The Supreme Court likewise denied leave.

Why OV 13 Was Likely Scored Correctly

Justice Hood’s analysis rests on a straightforward textual and precedential foundation:

OV 13 scores “felonious criminal activity,” not convictions, and it counts criminal acts in the five years around the sentencing offense “regardless of whether the offense resulted in a conviction,” MCL 777.43(2)(a).
“Felony” is defined in MCL 761.1(f) by potential punishment or express designation, and OV 13 “does not expressly incorporate the sentencing guidelines’ offense classifications,” Jackson, 504 Mich at 930.
The defendant’s prior conduct was charged under MCL 750.81d(1) (resisting/obstructing), a felony punishable by up to two years. Thus, even if he ultimately entered pleas to reduced misdemeanors, the underlying acts were “felonious” for OV 13 purposes.

Put simply, OV 13 is about what the defendant did (felonious acts), not what the conviction papers eventually said (misdemeanor disposition). On this record, the concurrence concludes there likely was no OV 13 error.

The Unresolved Post‑Revocation Guidelines Question under Kaczmarek

The concurrence spotlights a persistent gap in Michigan’s sentencing-appeal framework. Kaczmarek holds that probation revocation is not a new offense and that an appeal after revocation is “limited in scope,” encompassing issues that could not have been raised earlier and “issues arising from the resentencing.” A broad reading of that limitation risks foreclosing guideline-scoring challenges at the very moment they matter most—when a court resentences the defendant to incarceration following revocation—simply because the defendant did not appeal while on probation.

Justice Hood identifies the practical reasons most probationers do not appeal guideline scoring at the outset:

A person who has avoided prison has little incentive to expend resources to attack scoring errors that do not presently affect their liberty.
The usual remedy—resentencing—offers no obvious benefit and may even be perceived as risky by someone successfully serving probation.

If Kaczmarek is read to categorically bar later guidelines challenges, many genuine errors may escape appellate correction, and courts could impose prison terms under miscalculated ranges at revocation. The concurrence suggests that “issues arising from the resentencing” should be understood to include scoring at the post-revocation sentencing, and it urges the Court to clarify this point in an appropriate case. Pending such clarification, the concurrence recommends that courts and counsel adjust advice-of-rights to ensure defendants understand the potential consequences of forgoing a guidelines appeal while on probation.

Practical Guidance for Courts and Practitioners

At initial sentencing:
- Develop a clear factual record for any OV 13 scoring, identifying specific conduct and how it satisfies MCL 761.1(f)’s definition of felony.
- Avoid relying on guideline crime-class labels to justify OV 13; focus on the statutory definition of “felony” and the actual conduct (consistent with Jackson).
Advising defendants:
- Consider informing defendants that failure to challenge guideline scoring after the initial sentence may limit or foreclose review if probation is later revoked, given current uncertainties under Kaczmarek.
- Discuss with clients the pros and cons of seeking timely correction of material scoring errors, even if their current sentence is noncustodial.
At probation‑revocation resentencing:
- Preserve guideline-scoring objections anew and articulate why they qualify as “issues arising from the resentencing” under Kaczmarek.
- Build a clear record linking the guidelines calculation to the custodial sentence imposed post-revocation.

Conclusion

The Supreme Court’s denial of leave in People v. Carey leaves the lower-court outcomes intact. Justice Hood’s concurrence, however, provides two valuable guideposts. First, it reaffirms the proper construction of OV 13: the variable turns on “felonious criminal activity,” not the presence of felony convictions or guideline crime-class labels. Under Bemer, Jackson, and the text of MCL 777.43, prior felonious acts within the five-year window may be counted even if they ended in misdemeanor dispositions.

Second, it calls attention to a systemic gap in appellate review for probationers. Kaczmarek limits appeals after probation revocation, but its “issues arising from the resentencing” language has not been squarely applied to guideline-scoring challenges at post-revocation sentencings. Because probationers often have rational reasons not to appeal while on probation, a broad reading of Kaczmarek could leave uncorrected guidelines errors that become consequential only upon revocation. The concurrence prudently urges future clarification and, in the interim, encourages courts and counsel to adjust advice-of-rights and litigation strategies accordingly.

The key takeaways are clear:

OV 13 counts felonious conduct, not merely convictions, and looks to the statutory definition of “felony.”
The scope of permissible guidelines challenges after probation revocation remains unsettled under Kaczmarek and warrants future Supreme Court guidance.
Until clarified, accurate initial scoring, robust records, and informed client counseling are critical to preserving fair sentencing outcomes.