People v. Tyler, Docket No. 126468

• Decision Date: 19 March 1991
• Docket Number: Docket No. 126468
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Daniel TYLER, Defendant-Appellant. 188 Mich.App. 83, 468 N.W.2d 537
• Court: Court of Appeal of Michigan — District of US

Page 537

468 N.W.2d 537

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Daniel TYLER, Defendant-Appellant.

Docket No. 126468.

188 Mich.App. 83, 468 N.W.2d 537

Court of Appeals of Michigan.

Submitted Feb. 19, 1991, at Lansing.

Decided March 19, 1991, at 9:10 a.m.

Released for Publication May 17, 1991.

[188 MICHAPP 84] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Robert E. Weiss, Pros. [188 MICHAPP 85] Atty., Donald A. Kuebler, Chief, Appellate Div., and Gladys L. Christopherson, Asst. Pros. Atty., for the people.

Neil C. Szabo, Flint, for defendant-appellant.

Before SAWYER, P.J., and HOOD and MURPHY, JJ.

PER CURIAM.

Defendant pled guilty of two counts of second-degree criminal sexual conduct, M.C.L. Sec. 750.520c(1)(b)(i); M.S.A. Sec. 28.788(3)(1)(b)(i). The trial court sentenced defendant to concurrent prison terms of five to fifteen years and ordered him to pay restitution to the victim in the amount of $3,000. Defendant appeals as of right, contending that the trial court abused its discretion in imposing sentence and ordering restitution. We reverse and remand to the trial court for resentencing and a determination concerning the propriety of the amount of restitution.

Defendant claims that the trial court abused its discretion by imposing five-to-fifteen-year prison terms because it improperly made an independent finding that defendant was guilty of the higher offense of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), with which he was originally charged. We note that the sentences imposed by the trial court are within the range recommended by the sentencing guidelines for second-degree criminal sexual conduct and, therefore, are presumably valid. People v. Milbourn, 435 Mich. 630, 655-658, 461 N.W.2d 1 (1990); People v. Broden, 428 Mich. 343, 408 N.W.2d 789 (1987). However, after review of the record, we conclude that defendant is entitled to resentencing.

A trial court may not make an independent finding of a defendant's guilt on another charge [188 MICHAPP 86] and use it as a basis for justifying a sentence. People v. Grimmett, 388 Mich. 590, 202 N.W.2d 278 (1972); People v. Weatherspoon, 171 Mich.App. 549, 561, 431 N.W.2d 75 (1988). Nevertheless, the defendant's admissions or other record evidence that the defendant committed a greater offense may be considered by the court as an aggravating factor. People v. Fleming, 428 Mich. 408, 417-418, 410 N.W.2d 266 (1987); Grimmett, supra, 388 Mich. at 608, 202 N.W.2d 278. In the present case, the court stated its basis for the sentence as follows:

Under the Guidelines for criminal sexual conduct in the second degree the minimum term should be at least two years and could be as much as five years. Of course, the maximum term being set by statute at 15 years. There was evidence apparently sufficient to bind the case over on criminal sexual conduct in the first degree because of penetration of the child's vagina with your finger or of her mouth with your penis, or perhaps her vagina with your tongue. If you had been convicted of criminal sexual conduct in the first degree the Guidelines would have required a minimum term of at least eight years and could be as much as 20 years with the possibility of life in prison being also available since that is what criminal sexual conduct in the first degree provides as a maximum.

Accordingly, on the sentencing information report, the court scored fifty points on offense variable 12 for multiple penetrations. This raised the recommended minimum sentence range under the guidelines from zero to thirty-six months to twenty-four to sixty months. Had there been record support for the court's finding that multiple penetrations had occurred, we would be reluctant to interfere with its exercise of its discretion to score the sentencing information report. See People v. McCracken, 172 [188 MICHAPP 87] Mich.App. 94, 105, 431 N.W.2d 840 (1988). However, we have reviewed the record and find no such evidence.

Contrary to the sentencing court's assumption, there was not sufficient evidence on the record to support a binding over on the charge of first-degree criminal sexual conduct because defendant waived preliminary examination. Furthermore, defendant made no admissions concerning penetration when his guilty plea of second-degree criminal sexual conduct was taken. In fact, at his original sentencing, which was adjourned at defendant's request, defense counsel objected to the accuracy of statements in the presentence report concerning penetration. The sentencing court never addressed or resolved these claims. See MCR 6.425(D)(3); People v. Hoyt, 185 Mich.App. 531, 533-536, 462 N.W.2d 793 (1990). Even if we assume that the trial court's remarks at the second sentencing hearing were meant to address defendant's objection, the trial court's finding regarding penetration appears to have been based solely on the fact that defendant was originally charged with first-degree criminal sexual conduct and the challenged allegations contained in the presentence report, which, incidentally, was not in the record before this Court. Because the fact that multiple penetrations had occurred was not established by a preponderance of the evidence, there was an insufficient factual basis on the record for a score of fifty on OV 12. McCracken, supra, 172 Mich.App. at 105-106, 431 N.W.2d 840. Therefore, we conclude that defendant is entitled to resentencing with either sufficient evidence presented to support the scoring or a corrected score.

Defendant also contends that the trial court abused its discretion by ordering him to pay an arbitrary amount of $3,000 in restitution to the [188 MICHAPP 88] victim without attempting to ascertain the actual amount of the victim's damages. We agree.

M.C.L. Sec. 780.766(2); M.S.A. Sec. 28.1287(766)(2) gives a sentencing court discretion, in addition to or in lieu of any other penalty authorized or required by law, to order a defendant to make restitution to any victim of the defendant's conduct giving rise to the conviction. A "victim" is an individual who suffers direct or threatened physical, financial, or emotional harm as the result of a crime. M.C.L. Sec. 780.766(1); M.S.A. Sec. 28.1287(766)(1). M.C.L. Sec. 780.766(5); M.S.A. Sec. 28.1287(766)(5) provides:

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