People v. Tarket, Docket No. 92593

• Decision Date: 26 February 1988
• Docket Number: Docket No. 92593
• Citation: 419 N.W.2d 41,165 Mich.App. 650
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale Arthur TARKET, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 41

419 N.W.2d 41

165 Mich.App. 650

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dale Arthur TARKET, Defendant-Appellant.

Docket No. 92593.

Court of Appeals of Michigan.

Submitted Sept. 14, 1987.

Decided Jan. 19, 1988.

Released for Publication Feb. 26, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Kraag C. Lieberman, Pros. Atty., for the People.

Mark M. Muniak, Charlevoix, for defendant-appellant.

Before KELLY, P.J., and CYNAR and DOCTOROFF, JJ.

CYNAR, Judge.

Defendant was charged with criminal sexual conduct in the first degree, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2). As a result of a plea-bargain agreement, on September 24, 1985, defendant pled guilty to second-degree CSC, M.C.L. Sec. 750.520c; M.S.A. Sec. 28.788(3). Defendant was sentenced to serve a minimum sentence of not less than four years and a maximum sentence of not less than fifteen years. We reverse.

Through the Department of Social Services, the Charlevoix County Sheriff's Department was made aware of both the victim's description of criminal sexual conduct between her and the defendant, and an admission by the defendant to a social worker that he had been involved in sexual contact on a "touching basis" with the victim.

A preliminary examination was conducted on June 18, 1985, resulting in a bindover for CSC I. The arraignment took place on July 8, 1985, at which time a not guilty plea was entered to the CSC I charge. A short time later, defendant pled guilty to CSC II.

Sentencing took place on October 14, 1985. Defendant's sentence was based on information contained in the presentence report prepared by the circuit court probation officer. The sentencing guidelines range came to twenty-four to forty-eight months. The minimum sentence imposed (four years) fell within the guidelines as computed. Defendant contends and the people do not dispute that, while the defense attorney did review the presentence report, opportunity was not afforded to review the guideline range computation included on the Sentencing Information Report.

Defendant argues that there was improper offense variable scoring on the SIR because the defendant was assessed three "offense variable points" in category "O.V. 12" representing vaginal penetration of the victim. As a result of the three points, the total "offense score" came to nine points, placing defendant in Offense Severity Level III, instead of II. Had defendant's offense score been properly computed, the guidelines recommended range would have been zero to thirty-six months. Thus, defendant argues that he is entitled to resentencing. We agree.

In People v. Benson, 142 Mich.App. 720, 370 N.W.2d 16 (1985), this Court was called upon to determine whether the sentencing court erred in awarding certain points on the SIR. After reviewing the trial court's procedure for scoring, this Court stated:

"The trial court based its assessment upon admissions of the defendant contained in the presentence report. At sentencing the trial court allowed both defendant and his attorney the opportunity to dispute, explain and clarify the facts underlying this point allocation. The facts upon which the judge based his decision were not challenged so much as were the conclusions he drew from those basically undisputed facts. Under such circumstances, we find no basis for this Court to interfere with the trial court's discretionary assessment. Thus, four points were properly awarded under O.V. 8." Benson, supra, 722-723, 370 N.W.2d 16.

In addition, the Benson Court indicated that consideration of the money involved in admitted but uncharged offenses or dismissed charges may provide a basis for deviation from the recommended sentence range but should not be considered in assessing points for the individual conviction. Id., 723, 370 N.W.2d 16.

We further note that some panels have concluded that a sentencing court may consider a defendant's admissions and even separate criminal activity for which no conviction resulted, provided the defendant is given an opportunity to refute the facts or charges. See People v. Wiggins, 151 Mich.App. 622, 625, 390 N.W.2d 740 (1986). In Wiggins, supra, defendant had agreed that the factual basis for his nolo contendere plea could be established by use of the preliminary examination transcript. In addition, the presentence report indicated that defendant had admitted all the charges against him and was given an opportunity to object to the contents of the presentence report. Id., 624-625, 390 N.W.2d 740. See, also, People v. Clark, 147 Mich.App. 237, 243, 382 N.W.2d 759 (1985); People v. Butts, 144 Mich.App. 637, 640, 376 N.W.2d 176 (1985).

Consistent with this principle, the sentencing guidelines instructions direct the trial court to consider admitted or proven facts in calculating the guidelines score even though the facts are inconsistent with the offense for which the defendant is convicted:

"II. Scoring a Conviction

"A. Basic Considerations

* * *

* * *

"3. Where the facts are proven or acknowledged and are not consistent with the conviction offense (e.g., use of a weapon coupled with a conviction for unarmed robbery), the actual facts are still to be applied in scoring the appropriate variables."

In our case, defendant never admitted to penetration. While the victim indicated that there had been sexual intercourse, defendant only admitted to touching. Thus, it was error for the sentencing court to assess three points on the O.V. for penetration. Hence, resentencing is required.

Defendant's sentence is vacated and the case is remanded to the trial court for resentencing. Our holding conflicts with the position taken by a panel of this Court in People v. Green, 152 Mich.App. 16, 391 N.W.2d 507 (1986), lv. den. 426 Mich. 859 (1986), in which that panel held that evidence contained in the preliminary examination record may be used to support the trial court's scoring of offense variables. Our disagreement is based on the facts in this case and the guidelines instructions for scoring which permit a trial court to augment the scoring only with proven or admitted facts. Here, defendant never admitted to penetration. In this case, allowing the sentencing court to use the preliminary examination testimony would mean that, although defendant pleaded guilty to CSC II, he was sentenced for the crime of CSC I. While we concur with the Clark, supra, principle that this Court should not become entangled in second-guessing the trial judge's mechanics in scoring the sentencing guidelines, in our case, the facts clearly did not permit the court to assess the three points on the O.V. for penetration.

If, on remand, defendant is sentenced outside the recommended guidelines range, the trial court should state both on the record and on the SIR its reasons for departure. People v. Fleming, ...