People v. Raby, Docket No. 108010

• Decision Date: 05 February 1998
• Docket Number: Docket No. 108010
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert D. RABY, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 644

572 N.W.2d 644

456 Mich. 487

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert D. RABY, Defendant-Appellant.

Docket No. 108010.

Supreme Court of Michigan.

Feb. 5, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Research, Training and Appeals, Flint, for People.

State Appellate Defender by Susan M. Meinberg, Detroit, for Defendant-Appellant.

Opinion

PER CURIAM.

The defendant pleaded guilty of first-degree criminal sexual conduct and was sentenced to serve twenty to thirty years in prison. The Court of Appeals affirmed, rejecting the defendant's claim that the sentencing guidelines had been improperly scored. We also affirm.

I

The defendant sexually abused his daughters. This criminal behavior began in 1991 and extended into 1993, when one of his daughters reported the abuse at school. Originally charged with a variety of offenses, he pleaded guilty in December 1993 to one count of first-degree criminal sexual conduct. M.C.L. § 750.520b(1)(a); M.S.A. § 28.788(2)(1)(a).

Sentencing took place in March 1994. Scoring the guidelines, the circuit court gave 50 points for Offense Variable 12. ¹ That variable reads:

The sentencing proceeding was brief, and the defendant did not challenge the scoring of the guidelines.

The sentence imposed by the circuit court was a term of twenty to thirty years in prison. The twenty-year minimum sentence was at the high end of the range recommended by the guidelines. ²

On appeal, the defendant challenged the scoring of the guidelines, and Court of Appeals ruled that further proceedings were necessary in light of an error in the scoring of OV 12. 213 Mich.App. 801, 541 N.W.2d 282 (1995). All three judges of the panel agreed that this outcome was required by the Court's prior decision in People v. Polus, 197 Mich.App. 197, 495 N.W.2d 402 (1992). However, two panel members expressed the opinion that Polus had been wrongly decided and indicated that, were they free to so hold, they would conclude that OV 12 was properly scored in the present case. ³

The Court of Appeals soon vacated its opinion and ordered that "a special panel shall be convened pursuant to Administrative Order No.1994-4 to resolve the conflict between this case and People v. Warner, 190 Mich.App. 26 (1991)." 213 Mich.App. 801, 541 N.W.2d 282.

After further briefing, the seven-judge special panel issued its decision. 218 Mich.App. 78, 554 N.W.2d 25 (1996). The lead opinion, with three signatures, was authored by Judge SMOLENSKI. He wrote to uphold the scoring of OV 12. Employing a different analysis, Judge MARKMAN wrote a concurring opinion that also bears three signatures. Judge MICHAEL J. KELLY dissented.

The defendant has applied to this Court for leave to appeal.

II

The dispute regarding the scoring of OV 12 centers on whether penetrations that occur on separate occasions are to be scored under the variable. The instructions state that points are to be scored for "all penetrations involving the offender arising out of the same criminal transaction." Elsewhere in the guidelines manual, the word "transaction" is defined in this manner: ⁴

Transaction: The acts occurred in a continuous time sequence and displayed a single intent or goal. [Michigan Sentencing Guidelines (2d ed., 1988), p. 10.]

This issue regarding the proper scoring of OV 12 has divided the Court of Appeals. In People v. Warner, supra, the Court of Appeals appeared to conclude that it was permissible to score 50 points for OV 12 where there had been an extended period of molestation. However, the present issue was not developed in the Warner opinion, and the statements of the Court of Appeals can be characterized as dicta. ⁵

In People v. Polus, supra, the majority said that the 50-point scoring decision in such an instance was error, since separate assaults committed over a lengthy period were not part of the "same criminal transaction." ⁶ The contrary view in Warner was dismissed as "mere dicta." 197 Mich.App. at 201, n. 3, 495 N.W.2d 402.

Judge GRIFFIN dissented in Polus, saying that Warner was "binding precedent." ⁷ He added:

The majority orders a remand to the sentencing court "for the limited purpose of determining if its sentence would be changed in light of the correct scoring of the guidelines." Ante [at] 201-202 . Such a remand is unnecessary and a waste of valuable judicial resources. The sentencing judge clearly believed that the sentence he imposed was proportionate and an appropriate social response to the crime and the criminal. I agree and therefore would affirm defendant's sentence. No reasonable person would find the sentence disproportionate, ⁸ considering defendant's conduct. Under the circumstances of this case, I would find a sentence of any lesser term of years to be disproportionately lenient and therefore invalid.

The scoring of the guidelines is not an end in itself but rather a means to achieve a proportionate sentence. Because the majority and I agree that the defendant's sentence is proportionate and valid, the ordered remand is an academic exercise without a purpose. As appellate judges, we should "decline ... to engage the trial court in the futile exercise of marching up the sentencing hill again, only to hand down the same sentence and march back down." People v. Ristich, 169 Mich.App. 754, 759, 426 N.W.2d 801 (1988), and United States v. Tucker, 404 U.S. 443, 449-452, 92 S.Ct. 589 [593-594], 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 Judge GRIFFIN's view, expressed in Polus, that Warner was controlling precedent. The majority thus upheld the scoring of 50 points for OV 12. ⁹

The issue arose again in People v. Hyland, 212 Mich.App. 701, 538 N.W.2d 465 (1995). There, the panel agreed with Judge KELLY'sBivens concurrence, concluding that it was bound to follow Polus and thatBivens was "wrongly decided." 212 Mich.App. at 711-714, 538 N.W.2d 465. ¹⁰

In the present case, the special panel was summoned to resolve the conflict in earlier cases, and was thus freed from the question whether Warner was binding precedent. The members of the special panel were thus able to focus on the merits of the OV 12 issue, and their several opinions well summarize the competing schools of thought with regard to OV 12.

In his lead opinion, Judge SMOLENSKI concluded:

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. [218 Mich.App. at 83-84, 554 N.W.2d 25.]

Concurring, Judge MARKMAN discussed People v. Vonins (After Remand ), 203 Mich.App. 173, 176-177, 511 N.W.2d 706 (1993), in which the Court had said that the same prior conviction could be scored under both PRV 2 and PRV 6. Judge MARKMAN continued:

Similarly, the assessment of points for prior instances of criminal sexual penetration for both OV 12 and OV 25 would be proper. These variables are directed at least arguably, toward different purposes: OV 12 specifically addresses penetrations arising out of the same criminal transaction whereas OV 25 addresses contemporaneous criminal acts. Yet most conduct covered by OV 12, under either the broad or narrow reading of it, would also constitute contemporaneous criminal acts under OV 25. Because these variables, although not identical, do overlap, the conduct that would support scoring under OV 12 would generally also support scoring under OV 25.

Accordingly, we should interpret the criminal sexual conduct guidelines with the understanding that factors may be scored under more than one offense variable. In this context, the rule that we should interpret specific variables so as to produce an harmonious whole does not support the narrow reading of the "continuous time sequence" element of OV 12 over the broader reading.

As discussed above, both the narrow reading and the broader reading of this element of OV 12 are reasonable. Therefore, under a de novo standard of review, we would not reverse the trial court's reading of OV 12. We conclude that OV 12 is broad enough to reach the prior instances of criminal penetration at issue here. Accordingly, we find no abuse of discretion in the trial court's scoring of OV 12 for defendant's prior instances of criminal sexual penetration. We additionally conclude that the same factor may be scored under more than one offense variable. [218 Mich.App. at 90-91, 554 N.W.2d 25; footnotes omitted.]

In dissent, MICHAEL J. KELLY presented his view that the Polus interpretation is correct:

There is no reasonable justification for calling numerous instances of criminal sexual conduct over a two-year period the same criminal transaction. The defendant was not charged with "numerous criminal sexual penetrations over a two-year period." He was charged in...