695 N.W.2d 342 (Mich.App. 2005), 249023, People v. Mack

Docket Nº:249023.
Citation:695 N.W.2d 342, 265 Mich.App. 122
Opinion Judge:WILDER, P.J.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chris Douglas MACK, Defendant-Appellant.
Attorney:[265 Mich.App. 123] Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Danielle DeJong, Assistant Prosecuting Attorney, for the people. Peter Ellenson, Southfield, for the defendant.
Judge Panel:Before: WILDER, P.J., and HOEKSTRA and OWENS, JJ.
Case Date:February 08, 2005
Court:Court of Appeals of Michigan
 
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Page 342

695 N.W.2d 342 (Mich.App. 2005)

265 Mich.App. 122

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Chris Douglas MACK, Defendant-Appellant.

No. 249023.

Court of Appeals of Michigan

February 8, 2005

Submitted Oct. 12, 2004, at Detroit.

Released for Publication March 17, 2005.

Page 343

[265 Mich.App. 123] Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Danielle DeJong, Assistant Prosecuting Attorney, for the people.

Peter Ellenson, Southfield, for the defendant.

Before: WILDER, P.J., and HOEKSTRA and OWENS, JJ.

WILDER, P.J.

Defendant appeals as of right his sentences following jury trial convictions of third-degree criminal sexual conduct (CSC III), M.C.L. § 750.520d(1)(c), and assault with intent to commit criminal sexual conduct involving sexual penetration (AWICSC), M.C.L. § 750.520g(1). Defendant was sentenced on both counts [265 Mich.App. 124] as a fourth-offense habitual offender, M.C.L. § 769.12, to concurrent terms of fifteen to thirty years' imprisonment. We affirm.

I

Defendant was employed with Give-a-Lift Transportation as a van driver. Give-a-Lift transports clients to medical, doctor, and therapy appointments. The complainant lives in a group home and is mentally impaired as a result of a closed-head brain injury she suffered in an automobile accident when she was seven years old. Although she is chronologically twenty-four years old, the complainant has the mental abilities of a seven- to ten-year-old

Page 344

child and has required therapy since her injury. Defendant's convictions and sentences arise from an incident that occurred while he, in his position as a Give-a-Lift van driver, initiated sexual contact with the complainant while en route to the group home after her therapy session. Defendant drove the van into a parking lot, where he requested that complainant go to the rear of the van. Defendant removed his pants and complainant's undergarment and pants. Defendant attempted anal sex with complainant and forced her to perform fellatio. After the encounter, defendant drove complainant to the group home, where complainant reported the incident to a counselor the following day. Defendant was subsequently arrested and, after a two-day trial, he was convicted as charged.

After his convictions, the probation department prepared a presentence investigation report (PSIR), calculating the guidelines range for defendant's conviction of CSC III at 84 to 120 months. A PSIR was not prepared for defendant's conviction of AWICSC. Following defendant's sentence to concurrent terms of fifteen to thirty years' imprisonment, defendant filed a motion for resentencing [265 Mich.App. 125] asserting that the trial court erred by failing to separately score the AWICSC conviction and by sentencing defendant outside the guidelines range that would apply to defendant's AWICSC conviction. Defendant also moved for a Ginther 1 hearing, asserting that he was provided ineffective assistance of counsel at his sentencing hearing. The trial court denied both motions. Defendant now appeals.

II

This Court reviews for clear error a trial court's factual findings at sentencing. People v. Houston, 261 Mich.App. 463, 471, 683 N.W.2d 192 (2004). This Court reviews a trial court's decision to impose an increased sentence pursuant to the habitual offender act for an abuse of discretion. People v. Reynolds, 240 Mich.App. 250...

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