PEOPLE OF MI V SCOTT ALLEN WEAVER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 14, 2000
Plaintiff-Appellant,
v
No. 213501
Washtenaw Circuit Court
LC No. 96-007189 FH
SCOTT ALLEN WEAVER,
Defendant-Appellee.
Before: Talbot, P.J., and Gribbs and Meter, JJ.
PER CURIAM.
This is a prosecutor’s appeal. Defendant was convicted by a jury of three counts of third
degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), involving a minor. The sentencing
guidelines were scored to reflect a minimum recommended sentence of seven to ten years. Defendant
was sentenced to three concurrent one-year terms of imprisonment in county jail, to be served
consecutively to defendant’s sentences in two other matters. We vacate defendant’s sentence and
remand for resentencing.
The trial court’s one-year jail term for defendant’s felony convictions is invalid because an
indeterminate sentence is required for a CSC conviction. See MCL 769.8; MSA 28.1080; People v
Frank, 155 Mich App 789, 791; 400 NW2d 718 (1986). In addition, it was improper for the trial
court to mandate that defendant serve his three concurrent one-year terms in county jail. Because the
maximum penalty required by law for CSC-3 is fifteen years, defendant was required to serve his
sentence in a state prison. Id.
The trial court also erred by using inappropriate factors to deviate from the recommended
sentencing guidelines. The trial court noted that the victim was nearly sixteen years old, and commented
on her “obvious maturity and aggressiveness.” By legislative dictate, a fifteen year old girl is
presumptively not mature. Further, the record in this case suggests an exceedingly immature victim, in
the grips of a turbulent adolescence, and particularly vulnerable to the twenty-five year old defendant.
Nor does the record support the trial court’s finding of the victim’s “aggressiveness.” Indeed, the
record indicates that defendant took advantage of the fact that he was living in the victim’s household,
that the victim tried not to be alone with defendant, that defendant wrote the victim several emotionally
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manipulative letters, and that defendant came to the victim’s home uninvited after he had been asked to
leave. Defendant was told repeatedly that the victim was only fifteen years old and that there was to be
no contact between them.
The trial court also inexplicably considered it to defendant’s credit in this case that, pending
these proceedings, defendant had “actually been confined on parole hold” in another felony matter “for
which no technical credit can be granted.” Clearly, departure from the guidelines range in this matter
was not warranted by the fact that defendant, who had two prior felony convictions and a history of
parole violations, was in custody as a result of an unrelated case. Nor did the trial court take into
consideration defendant’s major misconducts while in custody. The trial court abused its discretion in
this case by sentencing defendant to three concurrent one-year terms in the county jail.
Defendant’s conviction is affirmed; defendant’s sentence is vacated and this matter is remanded
for resentencing. To preserve the appearance of justice, People v Hill, 221 Mich App 391, 398; 561
NW2d 862 (1997), resentencing shall be before a different judge. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Roman S. Gribbs
/s/ Patrick M. Meter
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