People v. Thompson
314 Mich. App. 703
Mich. Ct. App.2016Background
- Defendant pleaded no contest to one count of first-degree criminal sexual conduct (digital-vaginal penetration) that occurred on February 24, 2013, involving his 13-year-old stepdaughter; he was sentenced to 15–40 years.
- The police report and PSIR described a two-year history of repeated sexual abuse, threats (including a BB gun to the victim’s head), physical assaults, and a bite scar; those prior acts were not part of the plea to the February 24 offense.
- At sentencing the prosecutor sought 50 points for Offense Variable 7 (OV 7) for sadism/excessive brutality; the trial court scored OV 7 at 50 points based largely on the history of abuse.
- Under the guidelines, 50 points for OV 7 raised the minimum-range calculation to 108–180 months; if OV 7 were scored 0, the range would be 81–135 months. The court imposed a 180‑month minimum.
- Defendant appealed the OV 7 score; the Michigan Supreme Court remanded for Court of Appeals consideration of whether pre‑offense conduct may be considered in scoring OV 7 (citing People v McGraw).
- The Court of Appeals (majority) reversed and remanded for resentencing, holding that OV 7 may be scored only by reference to conduct occurring during the sentencing offense unless the statute expressly allows otherwise; the trial court impermissibly relied on prior acts outside the February 24, 2013 offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OV 7 may be scored using defendant’s conduct that occurred before the sentencing offense | OV 7 can be scored 50 where victim was treated with sadism/excessive brutality; the history of abuse shows sadistic conduct relevant to the sentencing offense | OV 7 must be scored only on conduct that occurred during the specific sentencing offense (Feb. 24, 2013); prior acts that were not part of the plea cannot be used | Held: OV 7 must be scored by reference only to conduct occurring during the sentencing offense unless the statute explicitly allows otherwise; remand for resentencing because court relied on earlier acts to score OV 7 at 50 points |
| Whether the trial court’s factual findings supporting 50 points for OV 7 were supported by the record | The PSIR/police report supplied a preponderance of evidence that the sentencing offense occurred in the context of sadistic, terrorizing abuse | The record does not establish that the particular act on Feb. 24 amounted to sadism independent of prior offenses | Held: Because the trial court relied on prior acts that did not relate forward to the plea offense, a preponderance of evidence does not support the 50‑point score for OV 7 |
| Whether the scoring error warrants resentencing despite lack of preservation at sentencing | Scoring was proper; even if error, it was harmless or within court’s discretion | Because the 180‑month minimum exceeds the corrected guidelines range, plain error occurred and resentencing is required | Held: Plain error affected substantial rights (sentence exceeded proper guidelines range), so resentencing ordered |
| Whether prior acts may be considered for sentencing departure or within‑range placement | Prior acts may inform departure/within‑range placement even if not scorable under OV 7 | Same: trial court may consider transactional conduct for departure or within‑range placement but not when scoring an OV limited to the sentencing offense | Held: Prior conduct may inform departures or within‑range considerations, but may not be used to score an OV that is offense‑limited (OV 7) |
Key Cases Cited
- People v McGraw, 484 Mich. 120 (held that offense variables are to be scored by reference to the sentencing offense and a defendant’s conduct after the offense generally cannot be used unless the variable so provides)
- People v Sargent, 481 Mich. 346 (explained that relevant factors are those relating to the offense being scored and disallowed use of uncharged acts not arising from the same transaction for OV scoring)
- People v Hardy, 494 Mich. 430 (standard for OV factual findings: reviewed for clear error and must be supported by a preponderance of the evidence; definitions of OV 7 terms)
- People v Francisco, 474 Mich. 82 (remand for resentencing is ordinarily required when a preserved guidelines scoring error alters the guidelines range)
- People v Kimble, 470 Mich. 305 (defendant may obtain appellate relief when sentence exceeds the appropriate guidelines range despite lack of preservation; plain‑error framework applies)
- People v Johnson, 298 Mich. App. 128 (a court may consider all record evidence, including the PSIR, when calculating guidelines)
- People v Osantowski, 481 Mich. 103 (trial court determines sentencing variables by reference to the record; appellate courts should not engage in fact‑finding)
- People v Burns, 494 Mich. 104 (recognizing trial‑court factfinding authority in sentencing variable determinations)
- People v Lockridge, 498 Mich. 358 (after this decision, facts that increase minimum‑sentence range must be admitted or found by a jury; appellate comment in dissent regarding application)