People v. Thompson

• Decision Date: 29 March 2016
• Docket Number: Docket No. 318128.
• Citation: 314 Mich.App. 703,887 N.W.2d 650
• Parties: PEOPLE v. THOMPSON.
• Court: Court of Appeal of Michigan — District of US

314 Mich.App. 703

887 N.W.2d 650

PEOPLE

v.THOMPSON.

Docket No. 318128.

Court of Appeals of Michigan.

Submitted June 10, 2015, at Lansing.

Decided March 29, 2016, at 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Charles D. Sherman, Prosecuting Attorney, and Brian A. Ameche, Assistant Prosecuting Attorney, for the people.

Ronald D. Ambrose for defendant.

Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ.

MURPHY, J.

Defendant pleaded no contest to one count of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(b)(ii ) (sexual penetration and victim at least 13 but less than 16 years of age and related to the defendant). He was sentenced to a prison term of 15 to 40 years. Defendant appeals his sentence, challenging the scoring of Offense Variable (OV) 7, MCL 777.37. We reverse and remand for resentencing.

Defendant pleaded no contest to an act of digital-vaginal penetration involving his stepdaughter. At defendant's plea hearing, the court indicated that it would rely on the police report in support of the factual basis for the no-contest plea. The police report reflected that the victim was 13 years old at the time the report was prepared and that, according to the victim, defendant had been sexually abusing her at least twice a week for approximately two years. The police report further provided that the victim had described multiple instances of digital-vaginal penetration, anal intercourse, and various acts of sexual contact.¹ In the police report, and in an attached written statement by the victim, reference was made to an incident in which defendant put a BB gun to the victim's head and threatened to kill her if she did not perform a sexual act. The police report also alluded to instances in which defendant pulled the victim's hair, struck her buttocks, threatened her life if she said anything about the sexual abuse, and hit her with a belt buckle, resulting in bruises on numerous occasions. In the victim's statement, she asserted that defendant had threatened her life “many times.” Medical documents attached to the police report indicated that defendant once bit the victim on one of her breasts, leaving a scar. The police report noted that the last incident of sexual abuse occurred on February 24, 2013. Defendant pleaded no contest specifically with respect to the sexual assault that occurred on February 24, 2013, and not in regard to any of the prior sexual abuse.²

At defendant's sentencing, the prosecutor argued that defendant should be assessed 50 points for OV 7, which is the proper score when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense[.]”³ MCL 777.37(1)(a). The only other potential score for OV 7 is zero points. MCL 777.37(1)(b). Defendant argued that a score of zero points was proper, claiming that his conduct did not rise to the level that would justify a score of 50 points. The trial court, which now had the benefit of the presentence investigation report (PSIR), which essentially echoed the police report and reiterated the facts previously discussed in this opinion, assessed 50 points for OV 7, ruling:

[T]he Court takes note that the victim chronicled for the Clinton County Sheriff's Office the duration of the sexual abuse that ... she suffered at the hands of the Defendant, which does include the scar to her breast, as well as anal intercourse, putting a B–B gun to her head, pulling her hair, threatening her life if she said anything, and that he had spanked her with a belt that left marks on her in the past. Those items the Court is satisfied constitute sadism as defined in the instructions to O–V 7....

The parties also argued over the scoring of other OVs that are not relevant to this appeal, including OV 13, MCL 777.43 (continuing pattern of criminal behavior). The minimum guidelines range for defendant's sentence was ultimately set at 108 to 180 months. See MCL 777.62. The trial court imposed a minimum sentence at the very top end of the guidelines range, 180 months (15 years), with the maximum sentence being set at 40 years' imprisonment. Defendant filed a delayed application for leave to appeal, challenging the scoring of OV 7 and OV 13. Defendant argued that OV 7 was improperly scored at 50 points, given that the trial court considered conduct related to past sexual abuse, instead of limiting its examination to conduct directly pertaining to the sexual assault on February 24, 2013, which was the sentencing offense. This Court denied the application, People v. Thompson, unpublished order of the Court of Appeals, entered December 3, 2013 (Docket No. 318128), and defendant then filed an application for leave to appeal in the Michigan Supreme Court. Our Supreme Court denied the application with respect to defendant's arguments concerning OV 13, but in regard to OV 7, the Court ruled:

Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we remand this case to the Court of Appeals for consideration, as on leave granted, of whether the conduct of the defendant with the victim prior to the commission of the sentencing offense may be considered when scoring Offense Variable 7, and if so, what evidence may support that scoring. MCL 777.37 ; People v. McGraw, 484 Mich. 120, (2009). [People v. Thompson, 497 Mich. 945, 857 N.W.2d 21 (2014).]

Under the sentencing guidelines, a trial court's findings of fact are reviewed for clear error and must be supported by a preponderance of the evidence. People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013) ; People v. Rhodes (On Remand), 305 Mich.App. 85, 88, 849 N.W.2d 417 (2014). “ ‘Clear error is present when the reviewing court is left with a definite and firm conviction that an error occurred.’ ” People v. Fawaz, 299 Mich.App. 55, 60, 829 N.W.2d 259 (2012) (citation omitted). This Court reviews de novo “[w]hether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute....” Hardy, 494 Mich. at 438, 835 N.W.2d 340 ; see also Rhodes, 305 Mich.App. at 88, 849 N.W.2d 417. When calculating the sentencing guidelines, a court may consider all record evidence, including the contents of a PSIR. People v. Johnson, 298 Mich.App. 128, 131, 826 N.W.2d 170 (2012).⁴

In the remand order, the Supreme Court directed our attention to its decision in McGraw, 484 Mich. 120, 771 N.W.2d 655, wherein the Court stated and held:

This case involves further analysis of the issue presented in People v. Sargent [, 481 Mich. 346, 750 N.W.2d 161 (2008) ]. There we held that offense variable (OV) 9 [number of victims] in the sentencing guidelines cannot be scored using uncharged acts that did not occur during the same criminal transaction as the sentencing offense. Today we decide whether the offense variables should be scored solely on the basis of conduct occurring during the sentencing offense or also using conduct occurring afterward.

We hold that a defendant's conduct after an offense is completed does not relate back to the sentencing offense for purposes of scoring offense variables unless a variable specifically instructs otherwise. Therefore, in this case, defendant's flight from the police after breaking and entering a building was not a permissible basis for scoring OV 9. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for resentencing. [McGraw, 484 Mich. at 121–122, 771 N.W.2d 655 (citation omitted).]

In McGraw, the defendant had pleaded guilty to multiple counts of breaking and entering a building in exchange for the dismissal of other charges, including fleeing and eluding police officers. Id. at 122–123, 771 N.W.2d 655. As part of the Court's reasoning in support of its holding, it observed:

We conclude that the Court of Appeals erred by considering the entire criminal transaction and using defendant's conduct after the crime was completed as the basis for scoring OV 9. Offense variables must be scored giving consideration to the sentencing offense alone, unless otherwise provided in the particular variable. OV 9 does not provide for consideration of conduct after completion of the sentencing offense. Therefore, it must be scored in this case solely on the basis of defendant's conduct during the breaking and entering. If the prosecution had wanted defendant to be punished for fleeing and eluding, it should not have dismissed the fleeing and eluding charge. It would be fundamentally unfair to allow the prosecution to drop the fleeing and eluding charge while brokering a plea bargain, then resurrect it at sentencing in another form. [Id. at 133–134, 771 N.W.2d 655.]

At the conclusion of its opinion, the McGraw Court reiterated that “[o]ffense variables are properly scored by reference only to the sentencing offense except when the language of a particular offense variable statute specifically provides otherwise.” Id. at 135, 771 N.W.2d 655.

Once again, MCL 777.37(1)(a) calls for the assessment of 50 points when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense [.]” (Emphasis added.) Defendant seizes on the language “during the offense” in arguing that a court can only take into consideration conduct occurring during the sentencing offense for purposes of scoring OV 7. It does appear that the “during the offense” language found in OV 7 modifies all the preceding language in MCL 777.37(1)(a), thereby requiring us to focus solely on conduct occurring during the CSC I offense. Regardless, even if OV 7 did not contain language that expressly limits the judge's consideration to conduct that occurred during the sentencing offense, OV 7 certainly does not specifically provide that a sentencing court may look outside the sentencing offense to past criminal conduct in scoring OV 7. Therefore,...