People v. Chesebro, Docket No. 158915

• Decision Date: 15 August 1994
• Docket Number: Docket No. 158915
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael J. CHESEBRO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 677

522 N.W.2d 677

206 Mich.App. 468

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael J. CHESEBRO, Defendant-Appellant.

Docket No. 158915.

Court of Appeals of Michigan.

Submitted Feb. 2, 1994, at Grand Rapids.

Decided Aug. 15, 1994, at 9:20 a.m.

Released for Publication Oct. 31, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Frederick Anderson, Pros. Atty., and Roberts A. Kengis, Asst. Pros. Atty., for the People.

Krause & Zambon, P.C. by Richard E. Zambon, Grand Rapids, for defendant.

Before HOLBROOK, P.J., and SAWYER and J.T. HAMMOND, ^* JJ.

SAWYER, Judge.

Defendant pleaded nolo contendere to criminal sexual conduct in the second degree. M.C.L. § 750.520c; M.S.A. § 28.788(3). He was thereafter sentenced to serve ten to fifteen years in prison. He now appeals, raising only issues regarding sentencing, not the conviction. We remand for consideration by the sentencing judge of a motion for resentencing.

Defendant raises a number of issues with respect to his sentence, one of which has merit. Defendant argues that the trial court erred in assessing ten points in the scoring of Offense Variable 6 under the sentencing guidelines. We agree.

Offense Variable 6 deals with multiple victims, and ten points are appropriate where there are two or more victims. In the case at bar, the offense for which defendant was convicted involved only one victim, but, according to the presentence investigation report, defendant has admitted to engaging in similar conduct with various victims over the course of a number of years. It was on the basis of these other instances that the trial court assessed ten points for Offense Variable 6. Thus, the question before us is whether, as defendant argues, Offense Variable 6 refers only to the victims in the charged offense, or to any victim in any offense, as the prosecution argues. We agree with defendant.

We begin by looking at the definition of "offense variable" contained in the sentencing guidelines. The definitions section defines "offense variable" as being the factors "that are used to evaluate the seriousness of the offense." Thus, the primary focus of the offense variables is not to measure the offender, but to measure the offense. ¹ Indeed, in looking at the various offense variables, both for criminal sexual conduct and other crimes, it can be readily observed that the offense variables by and large speak to the circumstances of the particular offense for which the defendant is to be sentenced. For example, Offense Variable 1 addresses the use of a weapon in the course of the crime, Offense Variable 2 addresses a physical attack on the victim, Offense Variable 3 addresses the intent to kill or injure, Offense Variable 4 addresses aggravated physical abuse involved in an offense, and so on.

In fact, the only offense variables that by their specific terms direct attention to crimes other than the one for which the defendant is being sentenced are Offense Variable 8 (continuing pattern of criminal behavior), Offense Variable 16 to a limited extent (aggravated controlled substance offense), and Offense Variable 25 in certain circumstances (CONTEMPORANEOUS CRIMINAL ACTS, WHICH CAN INCLUDe similar acts committed within the last six months). However, to the extent those variables require consideration of offenses other than the one for which the defendant is being sentenced, the instructions specifically direct the court to consider other offenses.

If, on the other hand, we were to accept the prosecutor's invitation to read into the offense variables the idea that prior conduct may be considered in scoring the variable even absent explicit instructions to do so, absurd results could occur. For example, Offense Variable 1 involves the aggravated use of a weapon and fifteen points is appropriate if a firearm is pointed toward the victim. Under the prosecutor's rationale, fifteen points could be scored if the defendant has ever pointed a weapon at someone, during any offense, and even where no weapon was involved in the current offense. Similarly, under Offense Variable 2 (physical attack or injury), one hundred points is scored if the victim is killed. Under the prosecutor's theory, once a defendant has committed a crime in which a victim is killed and the scoring of one hundred points for Offense Variable 2 is appropriate, the defendant would always receive a score of one hundred points for Offense Variable 2 for any offense committed thereafter even though there may have been no killing in those offenses.

We think the rule that more accurately applies the sentencing guidelines is that the offense variables are to be scored only with respect to the specific criminal transaction that gives rise to the conviction for which the defendant is being sentenced unless the instructions for a variable specifically and explicitly direct the trial court to do otherwise. In this respect, the scoring of Offense Variable 6 is more akin to the scoring of Offense Variable 12, as discussed in People v. Polus, 197 Mich.App. 197, 495 N.W.2d 402 (1992).

In Polus, this Court considered the proper scoring of Offense Variable 12, which deals with the number of criminal sexual penetrations. The trial court in Polus had scored fifty points, which is appropriate where there are two or more penetrations in addition to the penetration that forms the basis of the conviction. However, to conclude that there had been multiple penetrations, the trial court in Polus had relied upon penetrations that had occurred over the course of months or years, not just penetrations during the specific criminal transaction for which the defendant was convicted. Id. at 199, 495 N.W.2d 402. We reversed, concluding that only those sexual penetrations occurring during the course of the same criminal transaction were to be scored. If the prosecutor is correct in theorizing that offense variables are not specific to the crime for which the defendant is being sentenced, then Polus would have had to have been decided otherwise. We do not believe that Polus was incorrectly decided, but that the prosecutor's reasoning is flawed.

Finally, the prosecutor suggests that if Offense Variable 6 is limited to the number of victims during the same criminal transaction, then Offense Variable 25 becomes meaningless because it would cover contemporaneous criminal acts. We disagree. First, by its terms, Offense Variable 25 is not limited to the same criminal transaction. Rather, it considers all criminal acts occurring within twenty-four hours of the offense for which the offender is being sentenced or up to six months for crimes that are the same or similar in nature to the crime for which the defendant is being sentenced. Thus, the crimes that are eligible for scoring under Offense Variable 25 do not, by thespecific instructions for the scoring of that offense variable, need to be part of the same criminal transaction....