 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
People v. Mutchie3/22/2002
Approved for publication May 10, 2002.
Defendant pleaded guilty to three counts of first-degree criminal sexual conduct (CSC) (sexual penetration by an actor armed with a weapon), MCL 750.520b(1)(e), and one count of kidnapping, MCL 750.349. He was sentenced to concurrent prison terms of forty to one hundred years each for the first-degree CSC convictions and fifteen to twenty-five years for the kidnapping conviction. He appeals by delayed leave granted. We affirm.
This Court granted defendant's application for leave to appeal limited to the issue of the trial court's interpretation of Offense Variable (OV) 11 of the legislative sentencing guidelines, MCL 777.41. After reviewing the record, we conclude that the scoring issue is moot because, even if there were error, resentencing is not warranted given the trial court's remarks that it would have imposed the same sentences regardless of the scoring of OV 11.
Resentencing requires an invalid sentence. In re Dana Jenkins, 438 Mich 364, 369 n 3; 475 NW2d 279 (1991). As an example, a sentence based on a misconception of the law is invalid. People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). "More generally, there must be some 'legal flaw' in a sentence, People v Mapp, 224 Mich App 431, 434; 569 NW2d 523 (1997), or a 'tangible legal or procedural error' leading to a sentence, People v Wybrecht, 222 Mich App 160, 167; 564 NW2d 903 (1997), in order to consider it 'invalid' and justify resentencing." People v Thenghkam, 240 Mich App 29, 70-71, 610 NW2d 571 (2000).
Because it is clear from the trial court's remarks at the hearing on defendant's motion to withdraw his plea or resentencing that it would have found substantial and compelling reasons to depart from the sentencing guidelines recommended range, even if OV 11 were improperly scored, and because MCL 769.34(3) authorizes such departures, People v Hegwood, 465 Mich 432, 439-440; 636 NW2d 127 (2001); People v Babcock, 244 Mich App 64, 72; 624 NW2d 479 (2000), we conclude that any error in the scoring of OV 11 was harmless.
In any event, we are satisfied that OV 11 was properly scored in this case. We note that each of defendant's three CSC convictions were subject to the legislative sentencing guidelines, MCL 777.21(2), and that OV 11, MCL 777.41, was applicable to each offense because first- degree CSC is categorized as a crime against a person. MCL 777.16y and MCL 777.22(1). OV 11 unambiguously provides that each of the three instructions set forth in MCL 777.41(2) apply to the scoring of OV 11.
In construing these instructions in the context of defendant's first-degree CSC sentencing offenses, we must initially consider the meaning of the language found in MCL 777.41(2)(a), to wit: "all sexual penetrations of the victim by the offender arising out of the sentencing offense." Words in a statute should be a given a meaning, by context or setting, according to the common usage of language. Macomb Co Prosecutor v Murphy, 464 Mich 149, 158-159; 627 NW2d 247 (2001). Thus, while the phrase "arising out of" is not statutorily defined, looking to the common dictionary definition of "arise" to ascertain its generally accepted meaning, we note that Random House Webster's College Dictionary (1992), provides:
1. to get up from sitting, lying, or kneeling, rise . . . . 2. to awaken; wake up. 3. to move upward; ascend . . . . 4. to appear; spring up . . . . 5. to result; spring or issue (sometimes fol. by from) . . . .
We find the fifth definition most consistent with a contextual analysis of the phrase "arising out of the sentencing offense." Hence, MCL 777.41(2)(a) suggests that sexual penetration of the victim must res
Page 1 2 3 4 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|