People v. Polus

495 N.W.2d 402, 197 Mich. App. 197

• Court: Michigan Court of Appeals
• Decided: December 7, 1992
• Docket: Docket 141836
• Status: Published

Opinions

Sawyer, P.J.

Defendant pleaded guilty of criminal sexual conduct in the third degree. MCL 750.520d; MSA 28.788(4). He was sentenced to serve a term of six to fifteen years in prison. He now appeals and we remand.

Defendant raises a number of issues related to his sentencing, one of which is dispositive. Defendant argues that the trial court erred in assessing fifty points in the scoring of Offense Variable 12 in the sentencing guidelines. We agree. The scoring of fifty points for Offense Variable 12 is appropriate where there are two or more criminal sexual penetrations, not including the penetration that forms the basis of the conviction.¹ The instructions for Offense Variable 12 also direct the trial court to "[s]core all penetrations involving the offender arising out of the same criminal transaction.” The trial court scored fifty points for multiple penetrations on the basis of evidence that defendant had engaged in numerous sexual penetrations of the victim over the course of months, perhaps years, preceding his conviction. The trial court concluded that it was appropriate to consider. those prior penetrations in scoring Offense Variable 12. We disagree.

As noted above, the instructions for Offense Variable 12 direct the trial court to score the penetrations that arise out of the "same criminal transaction.” We read that instruction as limiting the trial court’s consideration in scoring Offense Variable 12 to only those penetrations that occurred during the criminal transaction for which the defendant was convicted, and not to include possible prior criminal sexual penetrations that arose from separate criminal transactions involving the defendant and the victim. 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. In the case at bar, the only indication is that the defendant penetrated the victim once during the course of the rape for which he was convicted. While it may well be that defendant raped the victim on several prior occasions, that fact is not relevant to the proper scoring of Offense Variable 12.

Furthermore, we should point out that these prior criminal sexual penetrations are considered in the scoring of the sentencing guidelines. Offense Variable 25 addresses the issue of contemporaneous criminal acts, with fifteen points being assessed for three or more contemporaneous criminal acts and five points being assessed for two contemporaneous criminal acts. Furthermore, the instructions for Offense Variable 25 define a criminal act to be contemporaneous if it occurs within twenty-four hours of the offense for which the defendant is being sentenced or within six months if it is identical or similar in nature to the offense for which the defendant is being sentenced. In either case, the contemporaneous criminal act cannot have resulted in a separate conviction. Indeed, defendant was assessed fifteen points under Offense Variable 25 for his prior conduct with the victim.²

We should also point out that merely because defendant’s prior conduct with the victim is not to be considered in the scoring of Offense Variable 12, it does not mean that the trial court must ignore that conduct. In addition to the fact that the conduct is relevant in the scoring of Offense Variable 25, it is certainly appropriate for the trial court to consider defendant’s ongoing criminal conduct with the victim in determining the appropriate sentence to impose. That is, the trial court may certainly consider that prior conduct in determining whether to sentence within the guidelines or depart from the guidelines, as well as where to sentence within the guidelines or how much to depart from the guidelines. Rather, we merely hold that the prior conduct cannot be used in the scoring of Offense Variable 12 to determine what is the base guidelines recommendation.³_

For the above reasons, we conclude that the trial court erred in its scoring of Offense Variable 12 and that the error affects the recommendations of the sentencing guidelines.

However, there remains the question of the appropriate remedy. While we conclude that the guidelines were incorrectly scored, it does not necessarily follow that the trial court would impose'a different sentence.⁴ Accordingly, the proper remedy is to remand the matter to the trial court for the limited purpose of determining if its sentence would be changed in light of the correct scoring of the guidelines. If the trial court determines that it would impose a different sentence, it shall bring defendant before the court for resentencing. However, if the trial court determines that it would have imposed the same sentence even under the correctly scored guidelines, it may enter an order affirming its original sentence without the need of bringing defendant before the court.

Turning to the points raised in the dissent, our dissenting colleague suggests that we have "unwarily become bogged down in second guessing the trial court’s scoring” of the guidelines. Post at 205. We assure our colleague that we are quite wary of involvement in sentencing guidelines review. Our colleague further suggests that we are eager to overrule the trial court’s scoring decision and that we have ignored the limited nature of the review of guidelines scoring. Id. However, we are neither eager to overrule the trial court’s scoring decision nor oblivious to the limited nature of appellate review of scoring decisions.

We are convinced, however, that the trial court erred in scoring the sentencing guidelines, even in view of the great deal of latitude that must, and should, be afforded sentencing judges in scoring the guidelines. Further, our colleague, while extolling the limited nature of sentencing guidelines review, seems to conveniently overlook the fact that appellate courts do have the authority, indeed the responsibility, to review the trial court’s scoring of the guidelines. See People v Walker, 428 Mich 261, 268; 407 NW2d 367 (1987). The dissent’s myopic approach to guidelines review would suggest that we should turn a blind eye to a trial court’s scoring decision, regardless of how outrageous or erroneous it is. Absent appellate review, a sentencing judge could arbitrarily score points to achieve a desired sentence recommendation. While the trial court in this case undoubtedly acted in good faith, the scoring was nevertheless erroneous.

Moreover, while we must afford the sentencing judge a great deal of discretion in scoring, if we fail to intervene where that scoring is erroneous, the guidelines will be rendered meaningless. The guidelines serve to help ensure that similar offenders receive similar sentences for committing similar offenses. Without some uniformity in scoring the guidelines, the guidelines lose their purpose. In other words, each variable in the guidelines comes with instructions for a reason, and it is our responsibility to ensure that those instructions are followed.

Next, the dissent relies on unpublished decisions in support of the authority of People v Warner, 190 Mich App 26; 475 NW2d 397 (1991). Our dissenting colleague overlooks the fact that unpublished decisions lack value as precedent. MCR 7.215(C)(1). Regardless of how many unpublished opinions have followed Warner, that does not change the fact that Warner on this point is both dicta and wrong. Regarding the former point, this Court has already established that we are not obligated under Administrative Order No. 1990-6, 436 Mich lxxxiv; Mich Ct R, A 1-45, to follow dicta. People v Cooke, 194 Mich App 534, 537-538; 487 NW2d 497 (1992). Concerning the second point, it is our obligation to correctly apply the law, not blindly follow past erroneous decisions.

We are puzzled by the dissent’s discussion of People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). The dissent seems to overlook the fact that we, too, are satisfied that the sentence, imposed is proportionate. However, unlike the dissent, we are not prepared to conclude that the trial court in this matter has abandoned its responsibility to sentence in light of the (proper) guidelines recommendation. While we are satisfied that the trial court could properly reaffirm the sentence imposed, we are not so presumptuous as to conclude that it will. The trial court did not respond to defendant’s challenge to the scoring by indicating that it would impose the same sentence. The trial court might conclude that a lesser sentence is appropriate in light of the revised scoring. It is the trial court’s prerogative to make that determination, not ours. We are not, as the dissent suggests, requiring the trial court to again march "up the sentencing hill.” Rather, we are affording the trial court the opportunity to determine if another trip up that hill is called for in light of the changed sentencing guidelines.

Our esteemed colleague in dissent waxes poetic in describing how deplorable is defendant’s crime and how deserving defendant is of punishment. . This, however, is a straw man because there is no question that defendant’s crime is deplorable or that he is deserving of punishment. We, however, observe a rule of law, not emotion. For a punishment to be just, it must be fairly imposed according to the rule of law. When a defendant commits horrendous crimes, the temptation is great to conclude that the defendant is undeserving of fair treatment. However, our constitution demands that all receive fair treatment, and we, as judges, are charged with the responsibility to resist that temptation and ensure that all are treated fairly. Thus, the dissent’s rhetoric focuses on a specious argument: that defendant’s conduct deprives him of the right to fair treatment by the criminal justice system.

New crimes are more deserving of punishment than that committed by defendant. It is our obligation, however, to impose that punishment fairly and justly. A basic premise in doing so is that the sentencing judge imposes sentence on the basis of accurate information and accurately scored guidelines,.

Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

Murphy, J., concurred.

1 Twenty-five points are to be scored if there is one criminal sexual penetration in addition to the penetration that forms the basis of the conviction, and zero points are to be scored if there is no criminal sexual penetration in addition to the penetration that forms the basis of the conviction.

2 To the extent that defendant also argues in his brief that the trial court erred in the scoring of Offense Variable 25, we reject that argument.

3 We reject the argument by the prosecutor that People v Warner, 190 Mich App 26; 475 NW2d 397 (1991), controls this case. While Warner does arguably support the proposition that prior conduct between the defendant and the victim may be considered in the scoring of Offense Variable 12, we conclude that Warner does not control the case at bar because any such conclusion is mere dicta. While the trial court in Warner did consider prior conduct in the scoring of Offense Variable 12, and this Court upheld the trial court’s scoring of the guidelines, the Warner decision never explicitly addressed the question whether prior conduct is appropriate in considering the scoring of Offense Variable 12. Rather, the question addressed by the Court in Warner was whether the trial court could properly consider uncontroverted evidence in a presentence report in establishing the scoring of the sentencing guidelines. Furthermore, the Warner Court noted that it would not remand the matter for resentencing even if it were to find that the trial court had improperly scored Offense Variable 12 on the basis of the trial court’s comments at sentencing. Finally, this Court even further noted that the sentencing guidelines did not apply because the defendant was convicted as a second-time sexual offender, thus making him a habitual offender and rendering the guidelines inapplicable. For these reasons, we conclude that Warner cannot be read as establishing a rule that prior criminal sexual conduct can be considered in the scoring of Offense Variable 12.

4 Defendant also argues that his sentence is disproportionate under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and that the trial court failed to adequately consider rehabilitation and failed to individualize the sentence to him. However, we are satisfied that, except for the scoring issue, the trial court considered the proper factors and that the sentence, even in light of the changed scoring, under which the recommended minimum would be in the two- to five-year range, is proportionate to this offense and this offender. We decline, however, to merely affirm the sentence, because it is for the trial court, not this Court, to exercise sentencing discretion. Thus, the trial court might conclude that a lesser sentence is appropriate in light of the changed guidelines scoring. That is, while we believe it would be proper for the trial court to retain the current sentence, it is not our place to prevent the trial court from reducing the sentence if it deems reduction appropriate.