PEOPLE OF MI V TERANCE CHARLES HICKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 25, 2009
Plaintiff-Appellee,
v
No. 284462
Wayne Circuit Court
LC No. 05-007825-FC
TERANCE CHARLES HICKS,
Defendant-Appellant.
Before: Jansen, P.J., and Hoekstra and Markey, JJ.
PER CURIAM.
Defendant appeals as of right his sentence of 10 to 15 years’ imprisonment that he
received at resentencing for his jury trial conviction of second-degree criminal sexual conduct
(CSC), MCL 750.520c. We vacate defendant’s sentence and remand for resentencing. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant was charged with several counts of first- and second-degree CSC based on
allegations that his daughter, who was 13 years old at trial, made against him. The jury
convicted him of a single count of second-degree CSC. The recommended minimum sentence
range under the legislative guidelines was 29 to 57 months. The trial court deviated from the
guidelines and sentenced defendant to a term of 10 to 15 years’ imprisonment. Defendant
appealed to this Court, arguing, in part, that the sentencing court failed to articulate substantial
and compelling reasons to deviate from the guidelines. In People v Hicks, unpublished opinion
per curiam of the Court of Appeals, issued March 15, 2007 (Docket No. 266510), this Court
affirmed defendant’s conviction but agreed that two of the sentencing court’s proffered reasons
for deviating from the guidelines—the nature of the offense and the need to protect society—
were not substantial and compelling reasons. However, this Court held that the trial court was
within its right to deviate from the guidelines based on its conclusion that Offense Variable (OV)
10, MCL 777.40, did not adequately take into account defendant’s exploitation of his daughter’s
vulnerabilities. Id. Defendant was assessed 15 points under OV 10 because of the predatory
nature of the offense. OV 10 allows for a ten-point assessment based on the exploitation of a
victim’s vulnerabilities, but because defendant was assessed the higher number of points for
predatory conduct, his exploitation of his daughter’s vulnerabilities was not truly taken into
account. Id. This Court remanded for resentencing “because it is unclear whether the trial court
would have departed to the same extent on the basis of the inadequate weight given to OV 10
alone.” Id. Because the Court remanded for resentencing, it did not address defendant’s
argument that his ten-year minimum sentence was disproportionate.
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At defendant’s resentencing, the trial court again exceeded the recommended minimum
sentence range of 29 to 57 months and imposed a term of 10 to 15 years’ imprisonment. It
explained that it “finds that the scoring of OV-10 does not afford proper weight to the
exploitation of the victim’s vulnerabilities and that is very clear on this record, very clear.”
On appeal, defendant argues that the trial court erred in scoring 50 points for OV 11,
MCL 777.41. Defendant also argues that, even if the trial court’s scoring of OV 11 was proper,
resentencing is required because the sentencing court lacked substantial and compelling reasons
to deviate from the guidelines and because his sentence of 10 to 15 years’ imprisonment is
disproportionate. We will uphold a trial court’s scoring decision if record evidence adequately
supports the score. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002). We
review a trial court’s determination that substantial and compelling reasons justify a departure
from the recommended minimum sentence range for an abuse of discretion. People v Babcock,
469 Mich 247, 274; 666 NW2d 231 (2003). Likewise, we review the extent of the departure for
an abuse of discretion. People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). “A trial
court abuses its discretion if the minimum sentence imposed falls outside the range of principled
outcomes.” Id.
We agree with defendant that the trial court erred in scoring 50 points for OV 11. Points
are scored under OV 11 for “sexual penetrations of the victim by the offender arising out of the
sentencing offense.” MCL 777.41(2)(a). Our Supreme Court has held that “[s]omething that
‘arises out of,’ or springs from or results from something else, has a connective relationship, a
cause and effect relationship, of more than an incidental sort with the event out of which it has
arisen. . . . [T]his requires that there be such a relationship between the penetrations at issue and
the sentencing offenses.” People v Johnson, 474 Mich 96, 101; 712 NW2d 703 (2006). Because
the victim in Johnson testified that she had sex with the defendant on two different occasions in
November 2001, it was clear that there was no more than an incidental relationship between the
two penetrations. Id. at 101-102. This was in contrast to People v Mutchie, 251 Mich App 273,
276; 650 NW2d 733 (2002), aff’d on other grounds 468 Mich 50 (2003), wherein the sexual
penetrations occurred “‘at the same place, under the same set of circumstances, and during the
same course of conduct.’” Johnson, supra at 100. Here, as in Johnson, there is no more than an
incidental relationship between the sentencing offense and any sexual penetration.
However, although not addressed by either party, criminal sexual penetrations that extend
beyond the sentencing offense may be scored under OV 13, MCL 777.43. See id. at 102 n 3.
Specifically, OV 13 allows for 25 points to be scored when “[t]he offense was part of a pattern of
felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(c).
Thus, given the testimony of defendant’s daughter regarding multiple instances of sexual abuse
involving penetration, the sentencing court should have scored OV 11 at zero and OV 13 at 25.
Had it done so, the minimum sentence range would have been 19 to 38 months’ imprisonment
instead of 29 to 57 months. MCL 777.64.
An erroneous scoring of the sentencing guidelines does not require resentencing if the
trial court would have imposed the same sentence regardless of the error. See People v Mutchie,
468 Mich 50, 51-52; 658 NW2d 154 (2003); see also People v Schaafsma, 267 Mich App 184,
186; 704 NW2d 115 (2005) (“[W]hen a reviewing court determines that a sentencing court
would prescribe the same sentence notwithstanding a misunderstanding of the law or irregularity
in the proceedings, the reviewing court may simply affirm the sentence.”). Based on a reading of
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the sentencing transcript, it is clear that, even if OV 11 and OV 13 had been correctly scored
below, the trial court would have imposed the same sentence of 10 to 15 years’ imprisonment.
Accordingly, instead of remanding for resentencing under correctly scored guidelines, we will
address the remaining issues whether the trial court had substantial and compelling reasons to
depart and whether the imposed sentence is disproportionate.
In defendant’s first appeal, this Court determined that the failure of the guidelines to give
proper weight to defendant’s exploitation of his daughter’s vulnerabilities provided a substantial
and compelling reason to depart from the recommended minimum sentence range. Hicks, supra.
Accordingly, the trial court had a substantial and compelling reason to depart from the
guidelines.
Nonetheless, a minimum sentence must be proportionate, and, “[w]hen fashioning a
proportionate minimum sentence that exceeds the guidelines recommendation, a trial court must
justify why it chose the particular degree of departure.” Smith, supra at 318. Here, the trial court
offered no explanation for the extent of the departure independent of the reason it provided for
exceeding the recommended minimum sentence range. The trial court’s departure was a
substantial departure. The imposed 10-year minimum sentence, which was the maximumminimum sentence allowed under the two-thirds rule, see People v Harper, 479 Mich 599, 617;
739 NW2d 523 (2007), was more than three times longer than the recommended minimum
sentence range of 19 to 38 months. In fact, a 10-year minimum sentence for any defendant
convicted of a class C crime would constitute a departure from the recommended minimum
sentence range. See MCL 777.64.1 The maximum-minimum sentence range provided by the
guidelines for a defendant convicted of a class C crime is 114 months, and such a sentence may
be given to a defendant whose PRV and OV scores correspond to the E-VI, F-V, or F-VI levels
of the class C crime grid. Id. Thus, defendant received a sentence that would constitute a
departure from the recommended minimum sentence range that the Legislature reserved for the
most egregious class C offenses and the more recidivist criminals. See Babcock, supra at 263.
The trial court departed from the recommended sentence range because the guidelines failed to
take into account defendant’s exploitation of his daughter’s vulnerabilities, a factor that generally
adds 10 points to a defendant’s OV score. MCL 777.40(1)(b). If an additional ten points are
added to defendant’s OV score, his OV score is within the 75 points contemplated by the
Legislature. MCL 777.64. Because defendant’s OV score is not uncontemplated and because
defendant had no criminal background, we cannot discern why the trial court believed that a
minimum sentence that exceeded the highest maximum-minimum sentence for a class C crime
was proportionate.2 We vacate defendant’s sentence and because we believe the trial judge will
1
In determining whether a sentence is proportionate, a court may reference the applicable class
crime sentencing grid because the grid “provides objective factual guideposts” that can aid the
court in “ensuring that the offenders with similar offense and offender characteristics receive
substantially similar sentences.” Smith, supra at 309 (quotation omitted).
2
In response to the dissent, we do not dispute that a trial court, in sentencing a defendant, is free
to consider other CSC charges of which the defendant has been acquitted. See People v
Compagnari, 233 Mich App 233, 236; 590 NW2d 302 (1998). Here, however, the trial court did
not identify defendant’s acquittal on other CSC charges as a basis for departure. Rather, the only
ground stated by the trial court for departing from the recommended minimum sentence range
(continued…)
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have substantial difficulty in putting aside her previously expressed views, People v Hill, 221
Mich App 391, 398; 561 NW2d 862 (1997), we remand for resentencing before a different judge.
Vacated and remanded for resentencing. We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
(…continued)
was the guidelines failure to adequately consider defendant’s exploitation of his daughter.
Although defendant’s course of conduct toward his daughter was reprehensible, we may not
substitute or speculate about conceivable other reasons to justify the departure. Smith, supra at
318.
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