Background
Joshua Levi Alger pleaded no contest to assault with intent to do great bodily harm less than murder and second-offense aggravated domestic violence arising from a March 2012 attack on his wife. Witnesses reported that Alger punched the victim near a bar, knocking out at least one tooth, then dragged her away and repeatedly struck her, including with a shoe. She suffered facial fractures and other serious injuries.
After earlier appeals concerning Alger’s habitual-offender status and whether jail conditions coerced his plea, his convictions were affirmed and the case was remanded for resentencing as a third-offense habitual offender. Alger later sought to withdraw his plea, arguing that the two convictions punished the same assault and rested on conflicting intent requirements.
The trial court found that Alger committed two distinct assaults and rejected his double-jeopardy claim. It sentenced him to 8½ to 20 years for assault with intent to do great bodily harm and 14 months for aggravated domestic violence. Alger appealed as on leave granted, also challenging the scoring of offense variables 1, 4, 7, 8, and 12.
The Court’s Holding
The Court of Appeals affirmed. It held that the police report and medical records supplied an adequate factual basis for Alger’s no-contest pleas and supported the trial court’s finding of two separate assaults: an initial punch constituting aggravated domestic violence, followed by a renewed assault after Alger dragged the victim away.
The court further held that even if the convictions arose from a single act, they did not violate double jeopardy under the abstract-legal-elements test. Assault with intent to do great bodily harm requires an intent that aggravated domestic violence does not, while aggravated domestic violence requires a qualifying domestic relationship and serious or aggravated injury, elements not required for assault with intent to do great bodily harm. The court also held that MCL 750.84(3), which expressly authorizes punishment for other violations arising from the same conduct, does not apply retroactively to Alger’s 2012 offenses because it affects substantial rights.
The court upheld all challenged sentencing scores. The evidence supported findings that Alger used a shoe as a weapon, caused serious psychological injury requiring counseling, engaged in excessive brutality, moved the victim away from others to a place of greater danger, and committed contemporaneous unlawful imprisonment by restraining her to facilitate the assault.
Key Takeaways
- Separate convictions for assault with intent to do great bodily harm and aggravated domestic violence were permissible because the record supported two distinct assaults.
- Even if based on the same conduct, the offenses satisfy Michigan’s abstract-legal-elements test because each contains an element the other does not.
- MCL 750.84(3) does not apply retroactively to offenses committed before its effective date.
- A shoe used to strike a victim may qualify as a weapon for scoring OV 1.
- Evidence of counseling, extreme injuries, forced movement, and restraint supported the challenged sentencing scores.
Why It Matters
The decision explains that conflicting intent language does not necessarily bar cumulative convictions when each offense includes a distinct statutory element. It also confirms that Michigan’s express authorization of cumulative punishment under MCL 750.84(3) cannot be applied retroactively, although pre-amendment convictions may still survive the abstract-legal-elements test.
For sentencing, the opinion illustrates the breadth of evidence courts may use to score offense variables, including witness accounts, photographs, counseling history, movement away from potential intervenors, and restraint facilitating another felony.