People v. Raby

Taylor, P.J. Defendant pleaded guilty of one count of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and was sentenced to twenty to thirty years’ imprisonment. Pursuant to a plea agreement, the prosecutor agreed to the dismissal of additional counts of first- and second-degree criminal sexual conduct involving the same victim. Defendant appeals as of right. We remand. Defendant challenges the accuracy of the trial court’s scoring of Offense Variables (ov) 6 and 12. Appellate review of the guidelines calculation is very limited. People v Reddish, 181 Mich App 625, 628; 450 NW2d 16 (1989). This Court will uphold a scoring decision for which there is any support on the record. People v Richardson, 162 Mich App 15, 17; 412 NW2d 227 (1987). Defendant was correctly assessed ten points under ov 6 for two or more victims. Although the offense to which defendant pleaded guilty involved only his seven-year-old daughter, the record indicates that defendant also acted inappropriately with regard to his four-year-old daughter. [802] Defendant also argues that he was incorrectly scored fifty points on ov 12, which assesses points for criminal sexual penetrations. Defendant claims that the trial court, rather than considering only the one sexual penetration that occurred during the criminal transaction for which defendant pleaded guilty, improperly considered past sexual activity between the victim and defendant in scoring ov 12. He claims that ov 12 should have been scored zero, not fifty. The instructions for scoring ov 12 provide: Score all penetrations involving the offender arising out of the same criminal transaction. *In esc 1st and esc 3rd do not score the one penetration that forms the basis of the conviction offense. There is an apparent conflict on this Court regarding the scoring of ov 12. In People v Warner, 190 Mich App 26; 475 NW2d 397 (1991), a panel of this Court upheld the trial court’s scoring of fifty points for ov 12, concluding that the uncontroverted evidence contained within the presentence report supported the trial court’s scoring. Id. at 28. As summarized by the trial court in Warner, the presentence report there indicated that the defendant “had sexual penetration on a substantial number of occasions, a half a dozen occasions perhaps, between October, 1986 and January, 1987.” Id. Implicit in the Warner Court’s affirmation of the trial court’s scoring of ov 12 is the determination that prior criminal transactions between the defendant and the victim are appropriate considerations. However, the Warner Court went on to state "even if we were to find that the trial court improperly scored ov 12, defendant’s sentence would still fall within the minimum guidelines range.” Id. at 29. On the basis of this language, another panel of this Court concluded that Warner was not binding precedent with regard to the scoring of ov 12 because any conclusion made in Warner was mere dicta. People v Polus, 197 Mich App 197, 200, n 3; 495 NW2d 402 (1992). The Polus Court then specifically held that the instructions for ov 12 limit the trial court’s consideration in scoring ov 12 to only those penetrations that occurred during the criminal transaction for which the defendant was convicted. Id. at 199. The Polus Court further stated that the scoring of ov 12 is not to include possible prior criminal sexual penetrations that arose from separate criminal transactions involving the defendant and the victim. Id. "That is, Offense Variable 12 is designed to distinguish between rapes in which the defendant penetrates the victim only once during the course of the rape and rapes in which the defendant penetrates the victim more than once during the course of the same rape.” Id. Footnotes [*] Circuit judge, sitting on the Court of Appeals by assignment.