Lead Opinion
Defendant pleaded no contest to one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(l)(b)(¿i) (sexual penetration and victim at least 13 but less than 16 years of age and related to the defendant). He was sentenced to a prison term of 15 to 40 years. Defendant appeals his sentence, challenging the scoring of Offense Variable (OV) 7, MCL 777.37. We reverse and remand for resentencing.
Defendant pleaded no contest to an act of digital-vaginal penetration involving his stepdaughter. At defendant’s plea hearing, the court indicated that it would rely on the police report in support of the factual basis for the no-contest plea. The police report reflected that the victim was 13 years оld at the time the report was prepared and that, according to the victim, defendant had been sexually abusing her at least twice a week for approximately two years. The police report further provided that the victim had described multiple instances of digital-vaginal penetration, anal in
At defendant’s sentencing, the prosecutor argued that defendant should be assessed 50 points for OV 7, which is the proper score when “[a] victim was treated with sadism, torture, or exсessive brutality or conduct designed to substantially increase the fear and anxiety
[T]he Court takes note that the victim chronicled for the Clinton County Sheriffs Office the duration of the sexual abuse that. . . she suffered at the hands of the Defendant, which does include the scar to her breast, as wеll as anal intercourse, putting a B-B gun to her head, pulling her hair, threatening her life if she said anything, and that he had spanked her with a belt that left marks on her in the past. Those items the Court is satisfied constitute sadism as defined in the instructions to O-V 1 ....
The parties also argued over the scoring of other OVs that are not relevant to this appeal, including OV 13, MCL 777.43 (continuing pattern of criminal behavior). The minimum guidelines range for defendant’s sentence was ultimately set at 108 to 180 months. See MCL 777.62. The trial court imposed a minimum sentence at the very top end of the guidelines range, 180 months (15 years), with the maximum sentence being set at 40 years’ imprisonment. Defendant filed a delayed application for leave to appeal, challenging the scoring of OV 7 and OV 13. Defendant argued that OV 7 was improperly scored at 50 points, given that the trial court considered con
Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeаls for consideration, as on leave granted, of whether the conduct of the defendant with the victim prior to the commission of the sentencing offense may be considered when scoring Offense Variable 7, and if so, what evidence may support that scoring. MCL 777.37; People v McGraw,484 Mich 120 [;771 NW2d 655 ] (2009). [People v Thompson,497 Mich 945 (2014).]
Under the sentencing guidelines, a trial court’s findings of fact are reviewed for clear error and must be supported by a preponderance of the evidence. People v Hardy,
In the remand order, the Supreme Court directed our attention to its decision in McGraw,
This case involves further analysis of the issue presented in People v Sargent[,481 Mich 346 ;750 NW2d 161 (2008)]. There we held that offense variable (OV) 9 [number of victims] in the sentencing guidelines cannot be*710 scored using uncharged acts that did not occur during the same criminal transaction as the sentencing offense. Today we decide whether the offense variables should be scored solely on the basis of conduct occurring during the sentencing offense or also using conduct occurring afterward.
We hold that a defendant’s conduct after an offense is completed does not relate back to the sentencing offense for purposes of scoring offense variables unless a variable specifically instructs otherwise. Therefore, in this case, defendant’s flight from the police after breaking and entering a building was not a permissible basis for scoring OV 9. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for resentencing. [McGraw,484 Mich at 121-122 (citation omitted).]
In McGraw, the defendant had pleaded guilty to multiple counts of breaking and entering a building in exchange for the dismissal of other charges, including fleeing and eluding police officers. Id. at 122-123. As part of the Court’s reasoning in support of its holding, it observed:
We conclude that the Court of Appeals erred by considering the entire criminal transaction and using defendant’s conduct after thе crime was completed as the basis for scoring OV 9. Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable. OV 9 does not provide for consideration of conduct after completion of the sentencing offense. Therefore, it must be scored in this case solely on the basis of defendant’s conduct during the breaking and entering. If the prosecution had wanted defendant to be punished for fleeing and eluding, it should not have dismissed the fleeing and eluding charge. It would be fundamentally unfair to allow the prosecution to drop the fleeing and eluding charge while brokering a plea bargain, then resurrect it at sentencing in another form.
[Id. at 133-134.]
Once again, MCL 777.37(l)(a) calls for the assessment of 50 points when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense[.]” (Emphasis added.) Defendant seizes on the language “during the offense” in arguing that a court can only take into consideration conduct occurring during the sentencing offense for purposes of scoring OV 7. It does appear that the “during the offense” language found in OV 7 modifies all thе preceding language in MCL 777.37(l)(a), thereby requiring us to focus solely on conduct occurring during the CSC-I offense. Regardless, even if OV 7 did not contain language that expressly limits the judge’s consideration to conduct that occurred during the sentencing offense, OV 7 certainly does not specifically provide that a sentencing court may look outside the sentencing offense to past criminal conduct in scoring OV 7. Therefore, under McGraw and Sargent, the trial court here was only permitted to consider conduct that occurred during the criminal offense on February 24, 2013, for purposes of scoring OV 7.
It is clear that the trial court assessed 50 points for OV 7 in light of conduct engaged in by defendant throughout the two-year course of the sexual abuse, instead of сonfining its examination to conduct occurring during the sexual assault on February 24, 2013, which was the only criminal offense to which defendant pleaded no contest. Defendant’s conduct that
We find it necessary to respond to some of the criticisms expressed by the dissent. The central theme of the dissent is that the Supreme Court in McGraw and Sargent rejected a narrow approach that would only allow contemplation of conduct occurring during the sentencing offense in the scoring of a variable,
The Sargent Court stated, “That the general rule is that the relevant factors are those relating to the offense being scored is further supported by the fact
[W]hen scoring OV 9, only people placed in danger of injury or loss of life when the sentencing offense was committed (or, at the most, during the same criminal transaction) should be considered.
In the instant case, the jury convicted defendant only of sexually abusing the 13-year-old complainant. It did not convict him of sexually abusing the complainant’s sister. Furthermore, the abuse of the complainant’s sister did not arise out of the same transaction as the abuse of the complainant. For these reasons, zero points should have been assessed for OV 9. [Id. at 350-351.]
Accordingly, the Court was clearly limiting its consideration to conduct and events occurring during the sentencing offensе. Indeed, that is how the McGraw Court interpreted Sargent, stating that in Sargent “we held that offense variable (OV) 9 in the sentencing guidelines cannot be scored using uncharged acts that did not occur during the same criminal transaction as the sentencing offense.” McGraw,
Accordingly, while Sargent held that the Legislature intended that the scoring of the offense variables be offense-specific, the Court in McGraw went one step further, characterizing its ruling as “decid [ing] whether the offense variables should be scored solely on the basis of conduct occurring during the sentencing offense or also using conduct occurring afterward.” Id. at 122. As quoted earlier, the McGraw Court specifically held that “a defendant’s conduct after an offensе
The dissent, citing McGraw,
This does not mean that transactional conduct may never influence a defendant’s sentence. Such a result would frustrate the Legislature’s intention of having the guidelines promote uniformity in sentencing. Nothing precludes the sentencing court from considering transactional conduct when deciding what sentence to impose within the appropriate guidelines range and whether to depart from the guidelines recommendation.
We are not holding that defendant’s conduct occurring before the sentencing offense was committed cannot be considered in a sentencing departure or in imposing defendant’s minimum sentence within the guidelines range. Indeed, the trial court may have sentenced defendant at the very top end of the guidelines range precisely because of the history of sexual abuse. This passage from McGraw simply does not suggest that a court may consider preoffense conduct that merely “pertains” to the sentencing offense in scoring a variable, such as OV 7, that is limited to contemplation of conduct occurring during the sentencing offense.
The dissent suggests that McGraw is distinguishable because it dealt with postoffense conduct and not preoffense conduct. It is clear to us, however, that the analytical framework constructed by our Supreme Court in McGraw applies regardless of whether a court
Finally, the dissent, relying on research and data concerning ongoing sexual abuse of children, makes an impassioned plea regarding the necessary interrelationship or interconnection between the sentencing offense and the prior acts of sexual abuse, precluding examination of the sentencing offense in a vacuum. We do not disagree with the dissent’s information regarding the victims of child sexual abuse and their abusers, nor do we reject the dissent’s general theory about abusive relationships; rather, we merely disagree that such matters are relevant under McGravo and Sargent for purposes of scoring OV 7 in this case. We note that despite the fact that OV 7 does not allow consideration of the full history of acts of sexual abuse, OV 13 was assessed at 50 points, the highest score possible, because the sentencing offense “was part of a pattern of felonious criminal activity involving 3 or more sexual penetrations against a person or persons less than 13 years of age.” MCL 777.43(l)(a). OV 13 requires consideration of “all crimes within a 5-year period, including the sentencing offense, . . . regardless of whether the offense resulted in a conviction.” MCL 777.43(2)(a). Thus, defendant’s past alleged sexual abuse of the victim is relevant and has a bearing on his sentence.
We have pondered the proposition that assessing 50 points under MCL 777.37(l)(a) was perhaps proper on the basis that the act of digital-vaginal penetration occurring on February 24, 2013, had to be examined in context by taking into account the entire history of
Reversed and remanded for resentencing. We do not retain jurisdiction.
SERVITTO, J., concurred with MURPHY, J.
Notes
The police report included a section regarding defendant’s interview by police. The report stated, “Then in further talking to [defendant] and getting further signs of deception,” defendant “did admit that he did touch [the victim’s] vaginal area and that his right hand middle finger did go inside her vagina . . .
We note that the victim was 13 years old on February 24, 2013, having turned 13 in December 2012. During most of the period in which the sexual abuse allegedly occurred, she was under the age of 13, and had defendant been convicted of CSC-I in relation to an act of penetration taking place when the victim was lеss than 13 years old, defendant would have faced a mandatory minimum sentence of 25 years’ imprisonment. See MCL 750.520b(2)(b).
“Sadism” is statutorily defined as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL 777.37(3).
We note that if the appropriate score for OV 7 is zero points, the guidelines range for defendant’s minimum sentence would be 81 to 135 months. MCL 777.62. Defendant was given a minimum sentence of 180 months. When a defendant properly preserves a claim that a scoring error was made and the guidelines range is altered in any way because the scoring error was actually made by the sentencing court, remand for resentencing is ordinarily required, even when thе minimum sentence imposed falls within the altered guidelines range. People v Francisco,
We note that the trial court assessed 50 points for OV 7 solely on the basis of sadistic behavior, not on the basis of torture or that defendant’s conduct was designed to substantially increase the victim’s fear and anxiety. It would not be appropriate for this Court to consider whether defendant’s conduct was designed to substantially increase the victim’s fear and anxiety. See Anspaugh v Imlay Twp,
The McGraw Court would not even allow consideration of conduct amounting to fleeing and eluding that occurred directly following the completion of the sentencing offense. McGraw,
Dissenting Opinion
(dissenting).
I respectfully dissent. I do not read the applicable statutory or caselaw as narrowly as does the majority, and I further conclude that even if the majority correctly reads that law, the majority misunderstands the facts. Either way, I would affirm.
As the majority explains, defendant pleaded no contest to digitally penetrating his then 13-year-old stepdaughter in exchange for a sentence within the sentencing guidelines. Defendant was, notably, not charged with any of the prior sexual, physical, and emotional abuse he inflictеd on his stepdaughter over a period of approximately two years. The instant appeal specifically concerns the trial court’s assessment of 50 points under Offense Variable (OV) 7. Fifty points should be assessed under OV 7 if “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense[.]” MCL 777.37(l)(a). At issue is solely whether defendant’s egregious conduct may be used to assess points under OV 7 in light of the record evidence and our Supreme Court’s statement that “[o] fíense vari
Factually, the trial court relied in significant part on a police report. The police officer’s summary of the victim’s interview states that the victim was 13 years old at the time of the specific assault of which defendant was convicted and that defendant had sexually abused her at least twice a week for the prior “couple of years.” The last sexual assault occurred on February 24, 2013; defendant pleaded no contest specifically to that last assault. In the police report, and in an attached written statement by the victim, reference was made to an incident in which defendant put a BB gun to the victim’s head and threatened to kill her if she did not perform a sexual act. The police report also alluded to instances in which defendant pulled the victim’s hair, struck her buttocks, threatened her life if she said anything about the sexual abuse, and hit her with a belt buckle, resulting in bruises on numerous occasions. In the victim’s statement, it is clear that defendant had threatened her life “many times” and that to the extent to which she subsequently did not resist, she acted out of fear. Medical documents attached to the police report indicated that defendant once bit the victim on one of her breasts, leaving a scar. The trial court also considered defendant’s presentence investigation report, which essentially echoed the police report information.
“Sadism” is statutorily defined as “conduct that subjects a victim to extreme or prolonged pain or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL 777.37(3). As our Supreme Court has explained, the terms “torture,” “excessive brutality,” and “conduct designed to substantially increase the fear and anxiety a victim suffered” are to be given their ordinarily understood meanings, and 50 points should be assessed if any such conduct occurred. Hardy,
The majority points out that our Supreme Court explicitly held that sentencing courts could consider “transactional conduct when deciding what sentence to impose within the appropriate guidelines range and whether to depart from the guidelines recommendation.” McGraw,
Our Supreme Court has explained that the proper delineation between conduct that may be considered and that which may not be considered is not strictly chronological. Rather, the delineation is whether the conduct in question pеrtains to the sentencing offense, which is an inherently fact-specific inquiry. I believe that the majority finds in our Supreme Court’s opinion a neat, simple, and easy-to-apply bright-line rule that was never articulated nor intended and that, in this case, is neither proper nor just. Our Supreme Court could easily have stated that conduct that occurs at a different time from the sentencing offense may not serve as a basis for assessing OV points unless a statute provides otherwise, but did not.
That being said, scorable conduct may well usually overlap chronologically with the sentencing offense. An observed trend, however, is not a rule, and statistics reveal nothing about specific cases. As applied to OV 7, I conclude that in light of our Suprеme Court’s analysis in McGraw and the plain language of MCL 777.37, whether points may be assessed depends not necessarily on when the conduct at issue occurred, but on the extent to which that conduct pertains to the sentencing offense. Nothing in McGraw dictates that such conduct must occur at the same time as the sentencing offense or must pertain to only the sentencing offense.
Nowhere has the Legislature explicitly stated that scorable conduct must have occurred during the offense. Rather, the statute requires that 50 points be assessed if the defendant engaged in sadism, torture, excessive brutality, or other conduct designed to increase fear and anxiety during the offense. Furthermore, nowhere has the Legislature required that such conduct pertain to only the sentencing offense, to the exclusion of others. Defendant unquestionably engaged in conduct designed to increase the victim’s fear and anxiety during the sentencing offense.
McGraw dealt with OV 9, which simply states, “Offense variable 9 is number of victims.” MCL 777.39(1). It also dealt with conduct that occurred after the date of the offense of which the defendant was convicted. McGraw,
See, e.g., National Center for Prosecution of Child Abuse, Investigation and Prosecution of Child Abuse, Third Edition (Thousand Oaks: 2004), pp 13-15; Hamby & Grych, The Complex Dynamics of Victimization: Understanding Differential Vulnerability Without Blaming the Victim, to appear in Cuevas & Rennison, eds, The Wiley Handbook on the Psychology of Violence (West Sussex: John Wiley & Sons, Ltd, 2016), pp 66-81; 1 Royal Commission into Institutional Responses to Child Sexual Abuse, Interim Report (2014), p 124.
For example, intimate partner violence is overwhelmingly chronic. See, generally, Rand & Saltzman, The Nature and Extent of Recurring Intimate Partner Violence Against Women in the United States, 34(1) J Comp Fam Stud 137 (2003). Controlling behaviors are, unsurprisingly, associated with the infliction of physical or sexual violence within relationships. Catallozzi et al, Understanding Control in Adolescent and Young Adult Relationships, 165(4) Archives of Pediatrics & Adolescent Med 313 (2011). Furthermore, experiencing violence physically alters young brains to become more sensitive to further threats and more prone to future psychological problems, much like soldiers exposed to combat stresses. McCrory et al, Heightened Neural Reactivity to Threat in Child Victims of Family Violence, 21(23) Current Biology R947 (2011). It should be obvious that any hostile environment from which a person
In my view, defendant engaged in conduct for the purpose of increasing the fear and anxiety the victim suffered during the offense beyond what such a victim might ordinarily be expected to suffer during that offense. See Hardy,
I appreciate that in light of our Supreme Court’s recent decision in People v Lockridge,