People v. Bivens

Decision Date18 July 1994
Docket NumberDocket No. 163762
Citation206 Mich.App. 284,520 N.W.2d 711
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lynn David BIVENS, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Dale A. Crowley, Pros. Atty., and Steven B. Flancher, Asst. Atty. Gen., for the People.

Gregory N. Veltema, P.C. by Gregory N. Veltema, Lansing, for defendant.

Before MICHAEL J. KELLY, P.J., and FITZGERALD and CORRIGAN, JJ.

PER CURIAM.

Defendant was charged with two counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct. Pursuant to a plea agreement, defendant pleaded nolo contendere of assault with intent to commit sexual penetration, M.C.L. § 750.520g(1); M.S.A. § 28.788(7)(1), and assault with intent to commit second-degree criminal sexual conduct, M.C.L. § 750.520g(2); M.S.A. § 28.788(7)(2). Defendant was sentenced to prison terms of 48 to 120 months and forty to sixty months for his respective convictions. Defendant appeals as of right. We affirm.

Defendant argues that the trial court erred in considering prior criminal sexual conduct with the victim in assessing fifty points for Offense Variable 12. This issue has arisen in two published opinions since the adoption of Administrative Order No. 1990-6, which requires this Court to follow a prior published decision of this Court issued on or after November 1, 1990.

In People v. Warner, 190 Mich.App. 26, 475 N.W.2d 397 (1991), this Court concluded that uncontroverted evidence of prior instances of sexual penetration between the defendant and the victim could be used to support the trial court's scoring of offense variables. In Warner, the trial court relied on the evidence of prior penetrations between the defendant and the victim that was contained within the presentence report in scoring fifty points for OV 12. In affirming the defendant's sentence, this Court stated:

We note, for purposes of defendant's argument regarding the sentence imposed, that even if we were to find that the trial court improperly scored OV 12, defendant's sentence would still fall within the minimum guidelines range. [Id. at 29, 475 N.W.2d 397.]

In People v. Polus, 197 Mich.App. 197, 495 N.W.2d 402 (1992), 1 another panel of this Court (GRIFFIN, J., dissenting), held that prior conduct cannot be used in the scoring of OV 12. In so holding, the panel noted in a footnote that Warner was not controlling authority:

While Warner does arguably support the proposition that prior conduct between the defendant and the victim may be considered in the scoring of Offense Variable 12, we conclude that Warner does not control the case at bar because any such conclusion is mere dicta. While the trial court in Warner did consider prior conduct in the scoring of Offense Variable 12, and this Court upheld the trial court's scoring of the guidelines, the Warner decision never explicitly addressed the question whether prior conduct is appropriate in considering the scoring of Offense Variable 12. Rather, the question addressed by the Court in Warner was whether the trial court could properly consider uncontroverted evidence in a presentence report in establishing the scoring of the sentencing guidelines. Furthermore, the Warner Court noted that it would not remand the matter for resentencing even if it were to find that the trial court had improperly scored Offense Variable 12 on the basis of the trial court's comments at sentencing. [Id. at 200-201, n 3, 495 N.W.2d 402.]

In his dissenting opinion in Polus, Judge Griffin stated:

I disagree with the majority's conclusion that the language in Warner addressing this scoring issue is mere dicta. In this regard, I note that, until today, our Court has routinely followed Warner with regard to this issue....

The decision in Warner is binding precedent pursuant to Administrative Order No. 1990-6, 436 Mich 1xxxiv. In my view, the majority's failure to follow Warner is a violation of that order. [Id. at 206-207, 495 N.W.2d 402.]

In this case, we agree with the prosecutor's contention that the Polus Court erroneously concluded that Warner was not controlling on the issue whether prior conduct between the defendant and the victim may be considered in the scoring of OV 12. Although not the central issue raised in the case, the consideration of whether prior conduct can be considered in the scoring of OV 12 was essential to the determination whether OV 12 was scored properly. The appropriateness of the scoring of OV 12 was considered by the Warner Court, as evidenced by its statement that "even if we were to find that the trial court improperly scored OV 12 ..." and its affirmance of the defendant's sentence. 2 Thus, the language in Warner is not dicta, and a rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scoring of OV 12. Hence, the Polus Court violated Administrative Order No. 1990-6 by failing to follow Warner.

Applying Warner, the trial court properly scored fifty points for OV 12, because the presentence report reveals, and defendant admitted, that he digitally penetrated the victim on prior occasions.

Affirmed.

MICHAEL J. KELLY, Presiding Judge (concurring).

I believe the majority in People v. Polus, 197 Mich.App. 197, ...

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4 cases
  • People v. Raby
    • United States
    • Michigan Supreme Court
    • 5 de fevereiro de 1998
    ...30 L.Ed.2d 592 (1972) (Blackmun, J., dissenting). [197 Mich.App. at 207-209, 495 N.W.2d 402; footnote omitted.] In People v. Bivens, 206 Mich.App. 284, 520 N.W.2d 711 (1994), a majority of the panel disagreed with Polus on the issue whether Warner was dicta. Instead, the majority accepted J......
  • People v. Hyland
    • United States
    • Court of Appeal of Michigan — District of US
    • 18 de agosto de 1995
    ...the last six months were already considered in the point calculation for OV 25. Id. at 200, 495 N.W.2d 402. In People v. Bivens, 206 Mich.App. 284, 520 N.W.2d 711 (1994), a third panel of this Court held that Polus was wrongly decided. The Bivens Court held that it was bound by the decision......
  • People v. Raby
    • United States
    • Court of Appeal of Michigan — District of US
    • 30 de julho de 1996
    ...and its "continuous time sequence" element.2 In People v. Warner, 190 Mich.App. 26, 475 N.W.2d 397 (1991), and People v. Bivens, 206 Mich.App. 284, 520 N.W.2d 711 (1994), this Court similarly adopted the broad reading without articulating its reasons for doing so.3 This issue also arises in......
  • People v. Bivens
    • United States
    • Michigan Supreme Court
    • 16 de maio de 1995
    ...520 448 Mich. 931 People v. Lynn David Bivens NO. 100605. COA No. 163762. Supreme Court of Michigan May 16, 1995 Prior Report: 206 Mich.App. 284, 520 N.W.2d 711. Disposition: Leave to appeal ...

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