Pursuant to a plea bargain in which one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct were dismissed, defendant pleaded guilty of third-degree criminal sexual conduct, *27 MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), and of being a second-time sexual offender, MCL 750.520f; MSA 28.788(6). Defendant was sentenced to a prison term of IV2 to 15 years. After hearing defendant’s motion to withdraw his plea or for resentencing, the trial court denied the motion. Defendant appeals as of right, challenging the scoring of an offense variable and the sentence imposed. We affirm.
Appellate review of guidelines calculations is very limited.
People v Reddish,
Defendant objects to the trial court’s scoring of Offense Variable 12, which provides:
CRIMINAL SEXUAL PENETRATION(s)
50* 2 or more criminal sexual penetrations 25* 1 criminal sexual penetration 0 No criminal sexual penetrations
Instructions:
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.
In his motion for resentencing, defendant argued that the trial court improperly scored ov 12 by including the penetration involved in the instant offense. The trial court disagreed, and explained the reasons for the score:
*28 It was stated on the record, as I recall it, that she [defense counsel] had reviewed the pre-sentence report. Mr. Warner was asked if there was anything he wished to say. There were no objections made by anyone relative to the pre-sentence report. There were no objections made relative to the guidelines.
It appears from a review of the pre-sentence report that the pre-sentence indicated that Mr. Warner had been involved in a sexual relationship with — I believe the victim was his daughter. This was the second time it had occurred. He had been sent to prison or, at least, sentenced on a prior occasion. On this occasion the pre-sentence indicated, as I recall it, that he had sexual penetration on a substantial number of occasions, a half a dozen occasions perhaps, between October, 1986 and January, 1987. That’s the dates as I recall them.
The objection is to the scoring of Offense Variable 12 which scores 50 points for two or more criminal sexual penetrations. In this case there were about six that were stated in the pre-sentence.
The directions for scoring Offense Variable 12 requires that you not score for the penetration which was involved in the specific offense to which the person pled guilty or which he was found guilty, but even setting that one aside there were approximately five more.
The complainant’s testimony at the preliminary examination also revealed at least six instances of sexual penetration.
We conclude that the uncontroverted evidence contained within the presentence report may be used to support the trial court’s scoring of offense variables. See
Reddish, supra,
p 630, and
People v Green,
The Court is not going to impose a sentence at the top of the guidelines, which it could do. It will stay within the guidelines, but it does feel that a relatively substantial period of incarceration is merited.
The mandatory minimum sentence in the instant case was five years, and the statutory maximum sentence was fifteen years. The sentencing guidelines do not apply to habitual offender sentencing.
People v Strickland,
Affirmed.