OV 15 (Aggravated Controlled Substance Offenses) Must Be Scored Offense-Specifically and Not “Backfilled” with Dismissed Delivery/PWID Conduct

Case: People of Michigan v. Timothy Joseph Walker
Court: Supreme Court of Michigan
Date: January 23, 2026
Disposition: Leave to appeal denied; Justice Bolden dissented.

1. Introduction

This Michigan Supreme Court order denied leave to appeal from the Court of Appeals, leaving the lower-court judgment intact without a merits opinion from the majority. The principal jurisprudential content is found in Justice Bolden’s dissent, which frames a recurring sentencing-guidelines problem: whether a trial court may score Offense Variable 15 (“OV 15,” aggravated controlled substance offenses) by relying on allegations tied to dismissed delivery/possession-with-intent-to-deliver (“PWID”) counts when the defendant was convicted only of simple possession.

Parties: The People of the State of Michigan (plaintiff-appellee) and Timothy Joseph Walker (defendant-appellant).
Background: Defendant pleaded guilty to possession of methamphetamine (second offense) in exchange for dismissal of delivery-related counts. At sentencing, the trial court assessed 5 points for OV 15 under MCL 777.45(1)(h), which requires evidence of either (i) delivery/intent-to-deliver, or (ii) possession “under such circumstances as to indicate trafficking.”

Key issue presented in the dissent: Whether OV 15’s “trafficking” prong can be supported by facts (e.g., scales, baggies, alleged plan to sell) that effectively reintroduce dismissed PWID/delivery conduct—contrary to the offense-specific scoring limits articulated in People v McGraw, 484 Mich 120 (2009) and reaffirmed in People v Gray, 297 Mich App 22 (2012).

2. Summary of the Opinion (Order and Dissent)

Majority Order

The Court denied the application for leave to appeal, stating it was not persuaded that the questions presented warranted review. Because this is a denial order, it does not create binding statewide precedent on the underlying scoring question.

Justice Bolden’s Dissent

Justice Bolden would have granted leave and reversed. In her view:

• The prosecution conceded in the Court of Appeals that OV 15 could not be scored under the “delivery or possession with intent to deliver” category because the conviction was simple possession; that argument was waived.
• The remaining “trafficking” basis could not be supported without importing dismissed PWID/delivery conduct, which violates the offense-specific scoring framework of People v McGraw, 484 Mich 120 (2009), consistent with People v Gray, 297 Mich App 22 (2012).
• The statutory definition of “trafficking” in MCL 777.45(2)(c) requires “sale or delivery” on a continuing basis for further distribution; therefore, “sale or delivery” is a prerequisite to “trafficking.”
• Because the scoring error altered the guidelines range, defendant would be entitled to resentencing under People v Francisco, 474 Mich 82 (2006) and People v Roberson, 500 Mich 929 (2017).
• Separately, Justice Bolden suggested the denial should be without prejudice to a postconviction motion under MCR 6.500 based on People v Hines, ___ Mich App ___ (January 16, 2025) (Docket No. 363151) regarding doubling guidelines under MCL 333.7413(1).

3. Analysis

A. Precedents Cited

1) People v Jackson, 497 Mich 857, 858 (2014)

The dissent uses People v Jackson for the interpretive structure of OV 15: five points apply when the offense involved either (1) “delivery or possession with intent to deliver” or (2) possession under circumstances indicating “trafficking.” Jackson is treated as confirming that OV 15 is not satisfied by generalized drug involvement; it requires meeting one of the statutory pathways in MCL 777.45.

2) People v McGraw, 484 Mich 120 (2009)

People v McGraw is the dissent’s central constraint: offense variables must be scored by reference to the “sentencing offense alone,” unless the variable expressly permits broader “transactional” conduct. McGraw is also invoked for its fairness principle in plea bargaining: it is “fundamentally unfair” to dismiss a charge as part of a plea bargain and then “resurrect it at sentencing in another form.” The dissent treats OV 15 as lacking any express transactional authorization, meaning the sentencing court may not rely on dismissed delivery/PWID conduct to increase OV 15.

3) People v Sargent, 481 Mich 346 (2008)

The dissent traces McGraw’s logic to People v Sargent, which characterizes offense variables as “generally offense specific” and limits scoring to conduct “relating to the offense.” Sargent supports the statutory-text approach (not a free-ranging “real offense” sentencing model) and reinforces that the conviction offense anchors OV scoring.

4) People v Gray, 297 Mich App 22 (2012)

People v Gray operationalizes McGraw in the OV 15 context. Gray held that OV 15 could not be scored using drugs tied to dismissed charges—even where the conduct was contemporaneous—because the “sentencing offense” controls. Justice Bolden treats Gray as a faithful application of McGraw and as directly analogous: in both Gray and Walker, the plea bargain narrows the sentencing offense, and OV 15 cannot be expanded by importing dismissed conduct.

5) People v Francisco, 474 Mich 82, 92 (2006) and People v Roberson, 500 Mich 929 (2017)

These authorities are cited for the remedial consequence: when an OV scoring error changes the applicable guidelines range, resentencing is required. The dissent uses them to argue that the alleged OV 15 error is not harmless if it moved the grid range.

6) People v Hines, ___ Mich App ___ (January 16, 2025) (Docket No. 363151)

Justice Bolden does not decide Hines’s correctness but flags it as a potential postconviction path: Hines held that the existence of previous drug-related convictions, without more, is insufficient to double the authorized sentencing guidelines under MCL 333.7413(1). The dissent suggests the Court’s denial should not foreclose a later MCR 6.500 motion invoking Hines.

7) Unpublished Court of Appeals decisions

The dissent lists multiple unpublished opinions (e.g., People v Jones, People v Calloway, People v Arnold, People v Gutierrez, People v Thomas, People v Boughner) to show Gray’s approach has been repeatedly applied. While unpublished opinions are not binding, the dissent uses them as evidence of doctrinal stability in the Court of Appeals on OV 15’s offense-specific limits.

B. Legal Reasoning

1) Statutory elements of OV 15 and the “trafficking” definition

OV 15 assigns points for “aggravated controlled substance offenses.” Under MCL 777.45(1)(h), five points require that “the offense involved” either:

• delivery or possession with intent to deliver, or
• possession under circumstances indicating “trafficking.”

The dissent emphasizes the limiting phrase “the offense involved” and the statutory definition of “trafficking” in MCL 777.45(2)(c): “the sale or delivery ... on a continuing basis ... for further distribution.” From this text, Justice Bolden draws two key inferences:

• “Sale or delivery” is a prerequisite for “trafficking”; “trafficking” cannot be inferred from mere possession unless the possession is part of a sale/delivery pattern meeting the definition.
• If the prosecution disclaims delivery/intent-to-deliver for the conviction offense, it is logically inconsistent to then characterize the same offense as involving ongoing delivery for redistribution (i.e., “trafficking”).

2) Offense-specific scoring and plea-bargain boundaries (McGraw / Gray)

The dissent’s core reasoning is structural:

• Under People v McGraw, the default is offense-specific scoring; transactional scoring requires an express legislative directive within the particular OV.
• OV 15 contains no express transactional authorization; therefore, the sentencing court must score OV 15 based only on the conviction offense.
• The plea agreement defines the sentencing offense for scoring purposes; dismissed charges are excluded. Using facts tied to dismissed PWID/delivery counts to support OV 15 would “resurrect” those charges at sentencing, creating the “fundamental unfairness” condemned in McGraw.
• People v Gray is deployed to reject the idea that contemporaneity cures the problem: even if dismissed conduct occurred near in time (or simultaneously), it remains outside the sentencing offense and cannot drive OV 15.

3) Waiver/concession and narrowing the issues

Justice Bolden notes the prosecution conceded in the Court of Appeals that the first OV 15 pathway (delivery/intent-to-deliver) did not apply because defendant was convicted of simple possession; she treats the argument as waived. The dissent then suggests (without deciding) that such a concession may also undermine reliance on the “trafficking” pathway, because trafficking—by definition—presupposes sale or delivery.

4) Remedy: resentencing if the guidelines range changed

Applying People v Francisco and People v Roberson, the dissent concludes that if OV 15 was improperly scored and that scoring altered the guidelines range, resentencing is required.

C. Impact

Even without precedential force, the dissent’s analysis has several practical implications:

• Sentencing litigation: Defense counsel can use the dissent to sharpen challenges to OV 15 where the conviction is simple possession but the scoring relies on packaging materials, alleged intent to sell, informant allegations, or other facts tied to dismissed delivery/PWID counts.
• Plea bargaining clarity: The dissent reinforces that charge dismissals should have real sentencing consequences; prosecutors seeking OV 15 points for delivery-related conduct may need to preserve conviction admissions that satisfy the statutory scoring pathway rather than rely on dismissed allegations.
• Doctrinal consolidation around McGraw/Gray: The dissent signals that OV 15 should be treated like other offense variables governed by McGraw’s offense-specific default, resisting “real-offense” expansions absent explicit statutory permission.
• Postconviction strategy (Hines): The dissent highlights a separate resentencing avenue under MCR 6.500 related to MCL 333.7413(1) and People v Hines, which may shape collateral attacks in drug cases involving guideline “doubling.”

4. Complex Concepts Simplified

• Offense Variable (OV): A factor in Michigan’s sentencing guidelines that adds points based on offense characteristics. More points can increase the recommended minimum sentence range.
• OV 15: The guideline variable for “aggravated controlled substance offenses” (MCL 777.45). It targets delivery/intent-to-deliver or trafficking-related circumstances.
• “Offense-specific” vs. “transactional” scoring: Offense-specific scoring looks only at the crime of conviction (the “sentencing offense”). A transactional approach would consider the broader episode or related conduct. Under People v McGraw, offense-specific scoring is the default unless the OV explicitly says otherwise.
• Plea bargain boundary: When charges are dismissed as part of a plea, using the dismissed conduct to increase OV scoring can be unfair because it effectively punishes the defendant for a charge the prosecutor agreed to drop.
• “Trafficking” (OV 15 definition): Not a vague synonym for “drug dealing.” Under MCL 777.45(2)(c), it requires sale or delivery on a continuing basis for further distribution.
• Guidelines range and resentencing: If a scoring error changes the recommended range, Michigan law (as cited in People v Francisco and People v Roberson) generally requires resentencing.

5. Conclusion

The Michigan Supreme Court’s denial of leave in People of Michigan v. Timothy Joseph Walker leaves the lower-court outcome undisturbed, but Justice Bolden’s dissent articulates a rigorous, McGraw-centered limit on OV 15: a sentencing court should not score OV 15 by importing dismissed delivery/PWID allegations into a simple possession conviction, particularly where “trafficking” statutorily requires sale or delivery on a continuing basis for redistribution.

The dissent’s broader significance lies in its reaffirmation of the plea-bargain boundary in guidelines scoring and its insistence on statutory fidelity—OV points must be anchored to what “the offense involved,” not what dismissed charges alleged.