People of Michigan v. Joseph Henry Abare
327563
| Mich. Ct. App. | Sep 27, 2016Background
- Defendant Joseph Abare was convicted by a jury of second‑degree criminal sexual conduct (CSC‑2) involving a victim under 13 and sentenced as a fourth habitual offender to 228 months–41 years imprisonment.
- At trial the victim described multiple touching events: an initial touching on a couch and a later touching on a box spring during which the victim described digital penetration.
- At sentencing the trial court scored offense variables (OVs): OV 11 (sexual penetration) at 25 points and OV 13 (pattern of felonious criminal activity) at 25 points, producing a guidelines range from which the court imposed an eight‑month upward departure.
- Defendant challenged the evidentiary support for OV 11 and OV 13 and also argued that scoring based on judge‑found facts violated the Sixth Amendment per Lockridge.
- The Court of Appeals reviewed OV factual findings for clear error (preponderance standard) and statutory application de novo, addressing evidentiary errors first because such errors require resentencing whereas Lockridge errors only permit a Crosby remand option.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OV 11: Whether scoring 25 points for one criminal sexual penetration was supported by evidence | Prosecution: the digital penetration on the box spring arose out of the charged sexual contact and thus counts for OV 11 | Abare: jury did not convict of penetration and he never admitted penetration, so OV 11 scoring lacked support | Court: preponderance supports that the box‑spring penetration arose from the prior contact; OV 11 properly scored 25 points |
| OV 13: Whether a 25‑point score for a pattern of 3+ crimes against a person was supported | Prosecution: defendant committed three crimes against a person within five years (child abuse, the additional touching, and a 2009 felonious domestic assault) | Abare: the “extra” touching was already scored in OV 11 and thus cannot be double‑counted; also challenges inclusion of domestic assault | Court: record shows two distinct sexual contacts (one led to penetration) so the extra touching was not counted in OV 11; prior 2009 conduct could be a felony domestic assault — OV 13 properly scored 25 points |
| Lockridge constitutional claim: Whether judge‑found facts used to score OVs violated Sixth Amendment requiring jury findings | People: sentencing based on guidelines with judicial factfinding was permissible; Lockridge issues preserved below | Abare: relied on Lockridge to challenge constitutionality of OV scoring | Court: Because evidentiary challenges did not require resentencing, the Lockridge claim was not dispositive; and defendant waived any Crosby remand by failing to seek it and not challenging reasonableness of the departure |
| Departure reasonableness / Crosby relief: Is defendant entitled to a remand under Crosby for resentencing given Lockridge? | People: not addressed as defendant did not press Crosby relief | Abare: implicitly sought Lockridge relief | Court: defendant waived any challenge to the reasonableness of the upward departure and did not seek Crosby remand; no relief granted |
Key Cases Cited
- People v. Hardy, 494 Mich 430 (court reviews OV factual findings for clear error; preponderance standard)
- People v. Francisco, 474 Mich 82 (remedy for OV scoring error is resentencing when range altered)
- People v. Johnson, 474 Mich 96 (definition of penetrations "arising out of the sentencing offense" requires a connective cause‑and‑effect relationship)
- People v. Lockridge, 498 Mich 358 (Sixth Amendment implications for judge‑found facts in sentencing guidelines)
- United States v. Crosby, 397 F.3d 103 (defendant’s choice to seek resentencing on remand after advisory guidelines ruling)