People v. Raby

Decision Date30 July 1996
Docket NumberDocket No. 173809
Citation218 Mich.App. 78,554 N.W.2d 25
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert David RABY, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Donald A. Kuebler, Chief, Appeals, Research, and Training, and Dale A. DeGarmo, Assistant Prosecuting Attorney, for the people.

State Appellate Defender by Susan M. Meinberg, for defendant on appeal.

Before Michael J. KELLY, P.J., and CORRIGAN, SAAD, BANDSTRA, MARKEY, MARKMAN, and SMOLENSKI, JJ.

SMOLENSKI, Judge.

Pursuant to Administrative Order No. 1994-4, this special panel was convened to resolve the conflict between the prior opinion in this case, 213 Mich.App. 801, 541 N.W.2d 282 (1995), and People v. Warner, 190 Mich.App. 26, 475 N.W.2d 397 (1991). The prior panel in this case held that it was bound by AO 1994-4 to follow People v. Polus, 197 Mich.App. 197, 199, 495 N.W.2d 402 (1992), which held that evidence of prior instances of sexual penetration between a defendant and a victim do not constitute the "same criminal transaction" for the purpose of scoring Offense Variable (OV) 12 (criminal sexual penetration[s] ). See Michigan Sentencing Guidelines (2d ed.), p. 45. Were it not for AO 1994-4, a majority of the previous panel would have affirmed the trial court's score of fifty points for OV 12 pursuant to Warner because defendant admitted that he had molested his daughter daily for over two years.

Following an en banc order 1 invoking the conflict resolution procedure of AO 1994-4, this case was reheard by this special panel. After due consideration, we resolve the conflict in favor of the Warner opinion, which held that evidence of prior penetrations may be used to score OV 12. Accordingly, we affirm the trial court's fifty-point score for OV 12 in this case.

We arrive at our result by interpreting the guidelines in accordance with the rules of statutory construction. People v. Williams, 205 Mich.App. 229, 232, 517 N.W.2d 315 (1994). Statutory provisions must be read in context so as to produce an harmonious whole. Id., p. 233, 517 N.W.2d 315. When two statutes or provisions appear to conflict and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. People v. McEwan, 214 Mich.App. 690, 695, 543 N.W.2d 367 (1995).

In Polus, supra, p. 199, 495 N.W.2d 402, this Court noted that prior criminal penetrations are considered in scoring the sentencing guidelines, specifically in scoring OV 25 (contemporaneous criminal acts). OV 25 provides for a score of five points for two contemporaneous criminal acts and a maximum score of fifteen points for three or more contemporaneous criminal acts. Sentencing Guidelines, p. 46. A criminal act is contemporaneous if "(1) it occurs within twenty-four hours of the offense upon which the offender is being sentenced or within six months if it is identical to or similar in nature and (2) it has not and will not result in a separate conviction." Id. Thus, under OV 25, a defendant can receive a score of fifteen points if within twenty-four hours of the offense of which he is convicted he engages in any three or more criminal acts, which could conceivably include not only other penetrations but also armed robbery, drunk driving, or a host of other crimes. A defendant can receive a score of fifteen points if within six months of the offense of which he is convicted he engages in three or more identical or similar criminal acts, which, in the case of first-degree criminal sexual conduct, could conceivably include not only other penetrations but also the lesser offenses of sexual contact or indecent exposure. Thus, it is clear that OV 25 applies to a broad range of conduct but is limited regarding the time frame in which such conduct may occur to be considered.

Conversely, OV 12 specifically applies only to the most heinous and offensive criminal sexual conduct: penetration. OV 12 provides for a score of twenty-five points for one criminal sexual penetration and fifty points for two or more criminal sexual penetrations. 2 Sentencing Guidelines, p. 45. We believe that the higher scores assigned under OV 12, when compared to the scores assigned under OV 25, evidence the severity with which the drafters of the guidelines viewed criminal sexual penetrations. Thus, where the criminal acts to be scored are criminal sexual penetrations, OV 12, the guideline specific to penetrations, prevails over OV 25, the guideline generally applicable to contemporaneous criminal acts.

The severity with which the guidelines view criminal sexual penetrations is also evidenced by the fact that OV 12 is not limited in time to a specified number of hours or months as is OV 25. Rather, all penetrations arising out of "the same criminal transaction" may be scored under OV 12. Sentencing Guidelines, p. 45. The guidelines define "transaction" as follows: "The acts occurred in a continuous time sequence and displayed a single intent or goal." 3 Sentencing Guidelines, p. 10.

The first criterion in determining legislative intent is the specific language of the statute. People v. Hawkins, 181 Mich.App. 393, 396, 448 N.W.2d 858 (1989). When the language of a statute is clear, judicial interpretation is unnecessary, and the Legislature is presumed to have intended the meaning plainly expressed. Courts may not speculate regarding the probable intent of the Legislature when the statutory language is clear and unambiguous. When the language of a statute is clear, it must be enforced as written. People v. Evans (After Remand), 213 Mich.App. 671, 674-675, 540 N.W.2d 489 (1995).

However, where reasonable minds may differ concerning the interpretation to be given a statute, judicial construction is appropriate. People v. Tracy, 186 Mich.App. 171, 175, 463 N.W.2d 457 (1990). Where statutory language is of doubtful meaning, a court must look to the object of the statute and the harm that it is designed to remedy and apply a reasonable construction that best accomplishes the statute's purpose. Id.

Applying the plain language of the guidelines, we conclude that, as in this case and in Warner, a defendant's ongoing penetrations of a victim over an extended period can constitute acts that occurred in a continuous time sequence and displayed a single intent or goal. This is especially true in the present case. The victim was a child who lived in the same household as defendant. Defendant molested or penetrated the victim daily for more than two years. That conduct under these circumstances gives rise to an inference that defendant intended to conceal his continued molestation of the victim during that extended period. Thus, such conduct constituted acts that occurred in a continuous time sequence and displayed a single intent or goal.

Alternatively, even if we were to find that the guidelines' definition of "transaction" was ambiguous and judicial construction therefore warranted, we would conclude that the foregoing construction is a reasonable construction that best accomplishes the object and purpose of OV 12.

Affirmed.

SAAD and BANDSTRA, JJ., concur.

MARKMAN, Judge (concurring).

We concur with the result reached in Judge Smolenski's opinion, but write separately to discuss several issues that we believe require further discussion.

At the outset, we note that the issue whether prior instances of sexual penetration by a defendant should be scored under Offense Variable (OV) 12 is sometimes obscured in the context of appropriate concern that such conduct be assessed in sentencing. The issue is not whether such prior conduct should be considered in sentencing. Such prior conduct demonstrates characteristics of the offender that are relevant to proportionate sentencing. Therefore, if no offense variable adequately addresses such conduct, it provides a strong rationale to depart upward from the guidelines' range. See People v. Milbourn, 435 Mich. 630, 659-660, 461 N.W.2d 1 (1990). Accordingly, the issue before us is only whether OV 12 covers prior instances of sexual penetration by a defendant, not whether evidence of such conduct is otherwise relevant in sentencing defendant.

We also preliminarily note our standard of review in deciding this issue. In People v. Reddish, 181 Mich.App. 625, 628, 450 N.W.2d 16 (1989), this Court held:

Appellate review of guidelines calculations is very limited.... A sentencing judge has discretion in determining the number of points to be scored provided that evidence exists adequate to support a particular score.... The Sentence Review Committee strongly recommends that this Court uphold scoring decisions for which any support exists. [Emphasis added.]

Accordingly, this Court is to determine whether the trial court abused its discretion in scoring the prior instances of criminal sexual penetration under OV 12. However, before we reach this issue, this conflict panel must answer the preliminary legal question whether OV 12 covers instances of criminal sexual penetration outside the episode for which a defendant was convicted. This Court reviews questions of law de novo. People v. Bloxson, 205 Mich.App. 236, 245, 517 N.W.2d 563 (1994).

Our analysis of the reach of OV 12 begins with the language of the variable itself. The majority correctly states that the sentencing guidelines are to be interpreted according to the rules of statutory construction. In People v. Williams, 205 Mich.App. 229, 232-233, 517 N.W.2d 315 (1994), this Court stated:

In interpreting the guidelines, we are guided by the rules of statutory construction. ... The first criterion of statutory interpretation is the specific language used; the meaning...

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  • People v. Raby
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