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People v. McLaughlin9/25/2003
al penetrations resulting in separate convictions, as suggested by defendant, or to exclude the use of one sexual penetration when the sentencing offense itself is first-degree CSC or third-degree CSC, as suggested by the prosecutor. We find that the latter position represents the more reasonable view of legislative intent because the language of MCL 777.41(2)(c) indicates an intent to exclude only one sexual penetration. [ Id. Mutchie, supra at 279-280.]
We agree with the Mutchie panel and find the proper interpretation of OV 11 requires the trial court to exclude the one penetration forming the basis of the offense when the sentencing offense itself is first-degree or third-degree CSC. Under this interpretation, trial courts may assign points for "all sexual penetrations of the victim by the offender arising out of the sentencing offense," while complying with the mandates of MCL 777.41(2)(c), by not scoring points for the one penetration that forms the basis of a first- or third-degree CSC offense. Accordingly, trial courts are prohibited from assigning points for the one penetration that forms the basis of a first- or third-degree CSC offense that constitutes the sentencing offense, but are directed to score points for penetrations that did not form the basis of the sentencing offense.
In reaching this conclusion, it is important to note that under defendant's interpretation, the trial court would be prohibited from assigning points for the one penetration that forms the basis of any first- or third-degree CSC conviction. Thus, in a case such as this, involving multiple penetrations that were each separately charged, the trial court would be required to assign an offender zero points under OV 11 because each single penetration would be the basis of a first degree CSC charge. Defendant's interpretation would also encourage departures from the statutory sentencing guidelines, as no other variable accounts for multiple convictions involving criminal sexual penetrations that do not give rise to a continuing pattern of criminal behavior. See Babcock, supra at 20, n 21, citing 1994 PA 445, ยง 33(1)(e)(iv) (indicating that the purpose of the statutory sentencing guidelines is to reduce the frequency of sentencing deviations). Finally, had the Legislature intended that only sexual penetrations not resulting in a criminal offense charge be considered, it could have stated that intent. Compare MCL 777.42(2)(a)(ii) (applicable only to a contemporaneous felonious act that 'has not and will not result in a separate conviction.') In the absence of such limiting language in MCL 777.42, we will not read a similar limitation into that section.
Also worthy of note is that MCL 777.41(2)(a) and (c) closely resemble the language found in the previously utilized judicial sentencing guidelines. Although not identical, the similarities between the statute and the prior judicial sentencing guidelines further our conclusion that this interpretation of OV 11 fully effectuates the Legislature's intent. See People v Cotton , 209 Mich App 82, 83-84; 530 NW2d 495 (1995) (the counterpart of OV 11 in the now-defunct judicial sentencing guidelines interpreted to permit scoring of an act of penetration for a different penetration, even if it resulted in a separate conviction). Accordingly, the trial court properly assigned fifty points for the two penetrations that constituted the basis of defendant's other convictions.
Affirmed.
Christopher M. Murray
Donald S. Owens
Richard A. Bandstra
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