People v. Raby

572 N.W.2d 644, 456 Mich. 487

Opinions

Per Curiam.

The defendant pleaded guilty of first-degree criminal sexual conduct and was sentenced to serve twenty to thirty years in prison. The Court of Appeals affirmed, rejecting the defendant’s claim that the sentencing guidelines had been improperly scored. We also affirm.

i

The defendant sexually abused his daughters. This criminal behavior began in 1991 and extended into 1993, when one of his daughters reported the abuse at school. Originally charged with a variety of offenses, he pleaded guilty in December 1993 to one count of first-degree criminal sexual conduct. MCL 750.520b(l)(a); MSA 28.788(2)(l)(a).

Sentencing took place in March 1994. Scoring the guidelines, the circuit court gave 50 points for Offense Variable 12.¹ That variable reads:

OV 12 CRIMINAL SEXUAL PENETRATION (S)

50* 2 or more criminal sexual penetrations

25* 1 criminal sexual penetration

0 No criminal sexual penetrations

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.

The sentencing proceeding was brief, and the defendant did not challenge the scoring of the guidelines.

The sentence imposed by the circuit court was a term of twenty to thirty years in prison. The twenty-year minimum sentence was at the high end of the range recommended by the guidelines.²

On appeal, the defendant challenged the scoring of the guidelines, and Court of Appeals ruled that further proceedings were necessary in light of an error in the scoring of ov 12. 213 Mich App 801; 541 NW2d 282 (1995). All three judges of the panel agreed that this outcome was required by the Court’s prior decision in People v Polus, 197 Mich App 197; 495 NW2d 402 (1992). However, two panel members expressed the opinion that Polus had been wrongly decided and indicated that, were they free to so hold, they would conclude that OV 12 was properly scored in the present case.³

The Court of Appeals soon vacated its opinion and ordered that “a special panel shall be convened pursuant to Administrative Order No. 1994-4 to resolve the conflict between this case and People v Warner, 190 Mich App 26 [475 NW2d 397] (1991).” 213 Mich App 801.

After further briefing, the seven-judge special panel issued its decision. 218 Mich App 78; 554 NW2d 25 (1996). The lead opinion, with three signatures, was authored by Judge Smolensk. He wrote to uphold the scoring of ov 12. Employing a different analysis, Judge Markman wrote a concurring opinion that also bears three signatures. Judge M. J. Kelly dissented.

The defendant has applied to this Court for leave to appeal.

n

The dispute regarding the scoring of ov 12 centers on whether penetrations that occur on separate occasions are to be scored under the variable. The instructions state that points are to be scored for “all penetrations involving the offender arising out of the same criminal transaction.” Elsewhere in the guidelines manual, the word “transaction” is defined in this manner:⁴

Transaction: The acts occurred in a continuous time sequence and displayed a single intent or goal. [Michigan Sentencing Guidelines (2d ed, 1988), p 10.]

This issue regarding the proper scoring of ov 12 has divided the Court of Appeals. In People v Warner, supra, the Court of Appeals appeared to conclude that it was permissible to score 50 points for ov 12 where there had been an extended period of molestation. However, the present issue was not developed in the Warner opinion, and the statements of the Court of Appeals can be characterized as dicta.5

In People v Polus, supra, the majority said that the 50-point scoring decision in such an instance was error, since separate assaults committed over a lengthy period were not part of the “same criminal transaction.”⁶ The contrary view in Warner was dismissed as “mere dicta.” 197 Mich App 201, n 3.

Judge Griffin dissented in Polus, saying that Warner was “binding precedent.”⁷ He added:

The majority orders a remand to the sentencing court “for the limited purpose of determining if its sentence would be changed in light of the correct scoring of the guidelines.” Ante 201-202. Such a remand is unnecessary and a waste of valuable judicial resources. The sentencing judge clearly believed that the sentence he imposed was proportionate and an appropriate social response to the crime and the criminal. I agree and therefore would affirm defendant’s sentence. No reasonable person would find the sentence disproportionate,[8] considering defendant’s conduct. Under the circumstances of this case, I would find a sentence of any lesser term of years to be disproportionately lenient and therefore invalid.

The scoring of the guidelines is not an end in itself but rather a means to achieve a proportionate sentence. Because the majority and I agree that the defendant’s sentence is proportionate and valid, the ordered remand is an academic exercise without a purpose. As appellate judges, we should “decline ... to engage the trial court in the futile exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down. People v Ristich, 169 Mich App 754, 759; 426 NW2d 801 (1988), and United States v Tucker, 404 US 443, 449-452; 92 S Ct 589; 30 L Ed 2d 592 (1972) (Blackmun, J., dissenting). [197 Mich App 207-209.]

In People v Bivens, 206 Mich App 284; 520 NW2d 711 (1994), a majority of the panel disagreed with Polus on the issue whether Warner was dicta. Instead, the majority accepted Judge Griffin’s view, expressed in Polus, that Warner was controlling precedent. The majority thus upheld the scoring of 50 points for ov 12.⁹

The issue arose again in People v Hyland, 212 Mich App 701; 538 NW2d 465 (1995). There, the panel agreed with Judge Kelly’s Bivens concurrence, concluding that it was bound to follow Polus and that Bivens was “wrongly decided.” 212 Mich App 711-714.¹⁰

In the present case, the special panel was summoned to resolve the conflict in earlier cases, and was thus freed from the question whether Warner was binding precedent. The members of the special panel were thus able to focus on the merits of the ov 12 issue, and their several opinions well summarize the competing schools of thought with regard to ov 12. In his lead opinion, Judge Smolensk: concluded:

Applying the plain language of the guidelines, we conclude that, as in this case and in Warner, a defendant’s ongoing penetrations of a victim over an extended period can constitute acts that occurred in a continuous time sequence and displayed a single intent or goal. This is especially true in the present case. The victim was a child who lived in the same household as defendant. Defendant molested or penetrated the victim daily for more than two years. That conduct under these circumstances gives rise to an inference that defendant intended to conceal his continued molestation of the victim during that extended period. Thus, such conduct constituted acts that occurred in a continuous time sequence and displayed a single intent or goal.

Alternatively, even if we were to find that the guidelines’ definition of “transaction” was ambiguous and judicial construction therefore warranted, we would conclude that the foregoing construction is a reasonable construction that best accomplishes the object and purpose of ov 12. [218 Mich App 83-84.]

Concurring, Judge Markman discussed People v Vonins (After Remand), 203 Mich App 173, 176-177; 511 NW2d 706 (1993), in which the Court had said that the same prior conviction could be scored under both prv 2 and prv 6. Judge Markman continued:

Similarly, the assessment of points for prior instances of criminal sexual penetration for both ov 12 and OV 25 would be proper. These variables are directed, at least arguably, toward different purposes: ov 12 specifically addresses penetrations arising out of the same criminal transaction whereas ov 25 addresses contemporaneous criminal acts. Yet most conduct covered by ov 12, under either the broad or narrow reading of it, would also constitute contemporaneous criminal acts under ov 25. Because these variables, although not identical, do overlap, the conduct that would support scoring under ov 12 would generally also support scoring under ov 25.

Accordingly, we should interpret the criminal sexual conduct guidelines with the understanding that factors may be scored under more than one offense variable. In this context, the rule that we should interpret specific variables so as to produce an harmonious whole does not support the narrow reading of the “continuous time sequence” element of ov 12 over the broader reading.

As discussed above, both the narrow reading and the broader reading of this element of ov 12 are reasonable. Therefore, under a de novo standard of review, we would not reverse the trial court’s reading of OV 12. We conclude that ov 12 is broad enough to reach the prior instances of criminal penetration at issue here. Accordingly, we find no abuse of discretion in the trial court’s scoring of ov 12 for defendant’s prior instances of criminal sexual penetration. We additionally conclude that the same factor may be scored under more than one offense variable. [218 Mich App 90-91.]

In dissent, M. J. Kelly presented his view that the Polus interpretation is correct:

There is no reasonable justification for calling numerous instances of criminal sexual conduct over a two-year period the same criminal transaction. The defendant was not charged with “numerous criminal sexual penetrations over a two-year period.” He was charged in five specific counts. There is no such count or crime entitled “years of molestation.” Not even the tortured exegesis of the mind of a medieval monk can deduct four from five and come up with years of molestation. For what little it is worth, I think People v Polus, 197 Mich App 197, 199; 495 NW2d 402 (1992), was correctly decided. The Supreme Court could not muster the votes to grant leave on an application, 447 Mich 952 (1994), and we should not supply their missing votes.

In conclusion, I believe it is unseemly to couch appellate decision-making in language posturing indignation at the crimes and criminals on review, torturing support for the interpretation that results in the longest durance for the criminal. If the prosecutor here wanted two, three, four, or five convictions and the resulting sentencing consequences, he need not have entered into a bargain for one conviction. The result reached in Polus was eminently correct; the instruction on its face limits consideration to penetrations involved in the same criminal transaction. Prior criminal sexual penetrations between the defendant and the victim were scored under ov 25, and properly so. If the trial court concluded that ov 25 inadequately addressed the importance of prior penetrations, it had authority to exceed the guidelines with very little risk of reversal by way of appellate review, but that is another subject. [218 Mich App 93-94.]

III

The special panel has concluded that it was not error for the circuit court to score 50 points for ov 12 in this case. While we have no disagreement with that conclusion, we believe it entirely unnecessary to reach the merits of this scoring question.

As Judge Grifein correctly explained in Polus, “The scoring of the sentencing guidelines is not an end in itself but rather a means to achieve a proportionate sentence.” 197 Mich App 208. Where, as here, the sentence is not disproportionate, there is no basis for relief on appeal.

In People v Mitchell, 454 Mich 145, 173-178; 560 NW2d 600 (1997), we elaborated on the point that is central to an understanding of the Michigan sentencing guidelines: They are not the product of legislative action. We repeated in Mitchell, 454 Mich 175, our earlier statement that, “because our sentencing guidelines do not have a legislative mandate, we are not prepared to require adherence to the guidelines.” People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990).

In Mitchell, these considerations led to the principle that guides us in the resolution of the present case:

Simply stated, because this Court’s guidelines do not have the force of law, a guidelines error does not violate the law.³⁵ Thus, the claim of a miscalculated variable is not in itself a claim of legal error.

In Mitchell, we elaborated further on these concepts, observing again that only an “invalid” sentence is subject to being set aside on appeal:

We have long recognized and recently reaffirmed that a sentence may be set aside only when it is invalid. People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981); In re Dana Jenkins, 438 Mich 364, 373; 475 NW2d 297 (1991). In Jenkins, we observed in dicta that the defendant may challenge the scoring of the sentencing guidelines under MCR 6.429; and in People v Hernandez, 443 Mich 1; 503 NW2d 629 (1993), and People v Walker, 428 Mich 261; 407 NW2d 367 (1987), we discussed preservation of guidelines scoring issues. To the extent that our decisions have been construed to authorize review and reversal for scoring errors or errors of misinterpretation, Milboum’s correct observation that guidelines do not have the force of law is controlling. Such relief is unavailable.³⁷

The challenge here asserted is directed not to the accuracy of the factual basis for the sentence, but, rather, to the judge’s calculation of the sentencing variable on the basis of his discretionary interpretation of the unchallenged facts. The challenge does not state a cognizable claim for relief. There is no juridical basis for claims of error based on alleged misinterpretation of the guidelines, instructions regarding how the guidelines should be applied, or misapplication of guideline variables.

As emphasized in Milboum, the guidelines are vehicles to assist the trial judge regarding where a given defendant falls on the sentence continuum recognized by Milboum. Where the guidelines calculation differs from the trial court’s intended sentence, the judge is alerted that the sentence falls outside a normative range and should be evaluated to assure that it is not unfairly disparate, has a rational basis, and is not disproportionate. On postsentence review, guidelines departure is relevant solely for its bearing on the Milboum claim that the sentence is disproportionate.⁴⁰ Thus, application of the guidelines states a cognizable claim on appeal only where (1) a factual predicate is wholly unsup ported, (2) a factual predicate is materially false, and (3) the sentence is disproportionate.⁴¹

Appellate courts are not to interpret the guidelines or to score and rescore the variables for offenses and prior record to determine if they were correctly applied. Guidelines are tools to aid the trial court in the exercise of its authority and a framework for the appellate courts’ inquiry into the question whether the sentence is disproportionate and, hence, an abuse of the trial court’s discretion. The Court of Appeals erred in reversing defendant’s sentence.

This analysis is equally applicable in the present case. A putative error in the scoring of the sentencing guidelines is simply not a basis upon which an appellate court can grant relief.

For these reasons, we reject the analysis provided in the opinion of the Court of Appeals, but affirm the judgments of the Court of Appeals and the circuit court.¹¹ MCR 7.302(F)(1).

Mat,t,ett, C.J., and Brickley, Boyle, and Weaver, JJ., concurred.

Footnotes

1

The circuit court also gave points for several other offense variables, including ten points under ov 6 (“Multiple Victims”). The defendant later disputed the scoring of ov 6, but it did not alter the offense severity level and, for reasons explained later in this opinion, need not be addressed on appeal.

2

The circuit court’s scoring of the guidelines placed the defendant in cell a-iv of the life-csc grid; the recommended range for the minimum sentence was 96-240 months.

3

In a separate concurrence, Judge McDonald stated his agreement with the Polus opinion.

4

In the sentencing guidelines, the word “transaction” appears only in ov 12.

5

Mr. Warner was sentenced as an habitual offender, and thus the sentencing guidelines did not apply. Michigan Sentencing Guidelines (2d ed, 1988), p 6. Further, his sentence was found not to violate the principle of proportionality. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990).

6

The majority in Polus did not order a resentencing, but rather a remand to determine whether the sentence would be changed in light of the change in the scoring. The trial court was told to bring the defendant before the court for a resentencing only if it first determined that the scoring change would result in a new sentence. 197 Mich App 201-202.

7

See Administrative Order No. 1990-6, 436 Mich ixxxiv, which was extended in several subsequent administrative orders. This “first-out” rule was amended in Administrative Order No. 1994-4, 445 Mich xci, and was extended indefinitely in Administrative Order No. 1996-4, 451 Mich xciii.

[8]

8 Mr. Polus pleaded guilty of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), and was sentenced to a term of six to fifteen years in prison.

9

In a concurring opinion, Judge M. J. Kelly characterized Warner as “simply inapplicable” since the panel in that case “never addressed the issue.” 206 Mich App 288. However, Judge Kelly concurred in the majority’s decision to affirm, because the sentencing judge in Bivens had clearly indicated that the sentences imposed were the proper sentences, without regard to how the guidelines might be scored.

10

In Hyland, the panel concluded:

At sentencing, the trial court erred in considering all of the prior conduct of defendant in the scoring of ov 12. Pursuant to Polus, supra, the trial court can only consider conduct arising out [of] the same criminal transaction in the scoring of ov 12. We affirm defendant’s convictions. We remand for resentencing in a manner consistent with this opinion. We do not retain jurisdiction. [212 Mich App 714]

35

For the same reason, error cannot be predicated on a claim that the instructions were misinterpreted.

37

As in Walker, an “effective challenge” involving guidelines is a challenge to the accuracy of the factual information on which the sentence was based, a challenge grounded in the due process clause under Townsend [v Burke, 334 US 736; 68 S Ct 1252; 92 L Ed 2d 1690 (1948)]. Walker authorized a review procedure for the preservation of sentencing appeals. Hernandez limited Walker by holding that an appellate court is not compelled to grant a motion to remand where there was “evidence supporting the judge’s initial scoring of the sentencing guidelines variable . . . Id. at 3. As in Walker, the challenge in Hernandez centered on the factual accuracy of the basis for the sentence. Properly understood, Hernandez affirmed that the accuracy of the information and the adequate notice in the presentence report gave rise to reviewable claims on appeal. It did not authorize a challenge on the basis of the judge’s interpretation of the facts underlying the sentence and the scoring decisions based on it, that is, the manner in which the judge scored the variables.

40

Contrary to defendant’s claim, we have never held that the sentencing guidelines provide a clear basis on which sentences might be overturned on appeal. Moreover, in requiring judges to state their reasons for departing from the guidelines, the order does not speak of appellate review, but, rather, of the Sentencing Guidelines Advisory Commission’s use of that information in generating analysis of whether the guidelines are working effectively.

41

To ask whether it is a misapplication of the guidelines to score. points for criminal sexual conduct under ov 12, where prior penetrations were not part “of the same transaction,” is to ask a question whose answer has no legal relevance on appeal. As an inquiry about what the guidelines committee had in mind regarding assessment measures that do not have the force of law, the inquiry, at best, asks for an opinion about how the majority of judges would have sentenced the defendant.

11

We are not persuaded that the other questions presented by the defendant should be reviewed by this Court.