People v. Warner

• Decision Date: 18 June 1991
• Docket Number: Docket No. 129719
• Citation: 475 N.W.2d 397,190 Mich.App. 26
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randolph WARNER, Defendant-Appellant. 190 Mich.App. 26, 475 N.W.2d 397

Page 397

475 N.W.2d 397

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Randolph WARNER, Defendant-Appellant.

Docket No. 129719.

190 Mich.App. 26, 475 N.W.2d 397

Court of Appeals of Michigan.

Submitted May 14, 1991, at Grand Rapids.

Decided June 18, 1991, at 9:15 a.m.

Released for Publication Oct. 28, 1991.

[190 MICHAPP 26] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., William A. Forsyth, Pros. Atty., and Timothy K. McMorrow, Chief Appellate Atty., for the People.

Thomas H. Schultz, Grand Rapids, for defendant-appellant on appeal.

Before HOOD, P.J., and McDONALD and FITZGERALD, JJ.

PER CURIAM.

Pursuant to a plea bargain in which one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct were dismissed, defendant pleaded guilty of third-degree criminal sexual conduct, [190 MICHAPP 27] M.C.L. Sec. 750.520d(1)(b); M.S.A. Sec. 28.788(4)(1)(b), and of being a second-time sexual offender, M.C.L. Sec. 750.520f; M.S.A. Sec. 28.788(6). Defendant was sentenced to a prison term of 7 1/2 to 15 years. After hearing defendant's motion to withdraw his plea or for resentencing, the trial court denied the motion. Defendant appeals as of right, challenging the scoring of an offense variable and the sentence imposed. We affirm.

Appellate review of guidelines calculations is very limited. People v. Reddish, 181 Mich.App. 625, 628, 450 N.W.2d 16 (1989). A sentencing judge has discretion in determining the number of points to be scored provided that evidence exists adequate to support a particular score. People v. Day, 169 Mich.App. 516, 517, 426 N.W.2d 415 (1988). The Sentence Review Committee strongly recommends that this Court uphold scoring decisions for which any support exists. People v. Richardson, 162 Mich.App. 15, 17, 412 N.W.2d 227 (1987).

Defendant objects to the trial court's scoring of Offense Variable 12, which provides:

CRIMINAL SEXUAL PENETRATION(S)

50* 2 or more criminal sexual penetrations

25* 1 criminal sexual penetration

0 No criminal sexual penetrations

Instructions:

Score all penetrations involving the offender arising out of the same criminal transaction.

In CSC 1st and CSC 3rd do not score the one penetration that forms the basis of the conviction offense.

In his motion for resentencing, defendant argued that the trial court improperly scored OV 12 by including the penetration involved in the instant offense. The trial court disagreed, and explained the reasons for the score:

[190 MICHAPP 28] It was stated on the record, as I recall it, that she [defense counsel] had reviewed the pre-sentence report. Mr. Warner was asked if there was anything he wished to say. There were no objections made by anyone relative to the pre-sentence report. There were no objections made relative to the guidelines.

It appears from a review of the pre-sentence report that the pre-sentence indicated that Mr. Warner had been involved in a sexual relationship with--I believe the victim was his daughter. This was the second time it had occurred. He had been sent to prison or, at least, sentenced on a prior occasion. On this occasion the pre-sentence indicated, as I recall it, that he had sexual penetration on a substantial number of occasions, a half a dozen occasions perhaps, between October, 1986 and January, 1987. That's the dates as I recall them.

The objection is to the scoring of Offense Variable 12 which scores 50 points for two or more criminal sexual penetrations. In this case there were about six that were stated in the pre-sentence.

The directions for scoring Offense Variable 12 requires that you not score for the penetration which was involved in the specific offense to which the person pled guilty or which he was found guilty, but even setting that one aside there were approximately five more.

The complainant's testimony at the preliminary examination also revealed at least six instances of sexual penetration.

We conclude that the uncontroverted evidence contained within the...