People v. Johnson
298 Mich. App. 128
| Mich. Ct. App. | 2012Background
- Defendant convicted, after a bench trial, of three counts of first-degree criminal sexual conduct (CSC) under MCL 750.520b.
- Defendant sentenced to 17½ to 40 years’ imprisonment and ordered to lifetime electronic monitoring under MCL 750.520n.
- Defendant appeals the sentencing decisions, challenging the scoring of OV 11 and OV 10, and the lifetime monitoring requirement.
- Victim V began sexual relations with defendant at age 13; penetrations included vaginal, oral, and cunnilingus contacts in multiple instances.
- The trial court relied on the presentence report and victim testimony to score OV 11 at 50 points and OV 10 at 15 points.
- The Michigan appellate court affirms, holding OV 11 and OV 10 were properly scored and lifetime electronic monitoring is required under the statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| OV 11 scoring was proper | OV 11 should be 50 points for two or more penetrations. | Score should not reflect multiple penetrations beyond basis of sentencing offenses. | OV 11 properly scored at 50 points. |
| OV 10 predatory conduct scoring | Gifts and preparatory conduct show predatory exploitation of a vulnerable 13–16 year old. | No predatory conduct established. | OV 10 scored at 15 points; predatory conduct present. |
| Lifetime electronic monitoring under MCL 750.520b(2) and MCL 750.520n(l) | Statutory language requires lifetime monitoring in CSC I convictions not resulting in life-without-parole sentencing. | Age of victim or statutory construction might preclude monitoring in this case. | Lifetime electronic monitoring required under the statutes regardless of victim age; Brantley interpretation applied. |
Key Cases Cited
- People v Ryan, 295 Mich App 388 (2012) (statutory construction and review standards for sentencing decisions)
- People v Lockett, 295 Mich App 165 (2012) (clear error standard for OV scoring; record evidence supports scoring)
- People v Phelps, 288 Mich App 123 (2010) (discretion in sentencing scoring; evidence required to support score)
- People v Althoff, 280 Mich App 524 (2008) (permissible sources for sentencing record evidence)
- People v Ratkov (After Remand), 201 Mich App 123 (1993) (prosecution burden to prove controverted sentencing facts by preponderance)
- People v Wilkens, 267 Mich App 728 (2005) (interpretation of MCL 777.41 and multiple penetrations for OV 11)
- People v Johnson, 474 Mich 96 (2006) (definition of arising out of for purposes of OV scoring)
- Brantley, 296 Mich App 546 (2012) (last antecedent rule applied to MCL 750.520n(l) regarding lifetime monitoring)