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A Better Partnership
October 18, 2012

COA Opinion: Court affirms sentence for criminal sexual conduct

In People v Johnson, the Michigan Court of Appeals addressed sentencing guidelines for criminal sexual conduct. The Court of Appeals analyzed the trial court's scoring decisions under offense variables 10 and 11, noting that the trial court's decision must be upheld if the record contains any evidence supporting the decision. Additionally, the Court of Appeals found that a defendant convicted of first degree criminal sexual conduct but not sentenced to life in prison without parole must be sentenced to lifetime electronic monitoring, regardless of the defendant's age or the victim's age.

Following his conviction of three counts of first degree criminal sexual conduct, the trial court sentenced the defendant to 17.5 to 40 years imprisonment and lifetime electronic monitoring. The defendant claimed that, when calculating his minimum sentence range, the trial court erred in its scoring of offense variables 10 and 11. Under offense variable 10, the court must assign 15 points if predatory conduct was used prior to the commission of the offense in order to exploit a vulnerable victim. The Court of Appeals found that the victim in this case was vulnerable because she was between 13 and 16 years old at the time of the conduct in question. Further, the defendant engaged in predatory conduct prior to the sexual conduct when he presented her with gifts and gave her rides to his house. The points to be assigned under OV 11 depend on the instances of sexual penetration 'arising out of' the sentencing offense. The Court of Appeals interpreted this to require more than the fact that the same defendant and victim were involved in each instance, but found that each instance between this defendant and victim 'arose out of' the sentencing offense because of the frequency and regularity of such encounters.

The defendant also argued that the trial court erred by sentencing him to lifetime electronic monitoring because the victim was not less than 13 years old at the time of the offenses, as required under a provision of MCL 750.520. However, the Court of Appeals noted that a different provision of that statute also indicates that a court must sentence a defendant to such monitoring for any first degree criminal sexual conduct for which the defendant is not sentenced to life in prison without parole. Because these two sections address the same subject and have a common purpose, they must be read together to permit monitoring under either situation. Thus, the defendant in this case was properly sentenced to lifetime electronic monitoring.

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