PEOPLE OF MI V DANTE DESHAWN MOORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 31, 2011
Plaintiff-Appellee,
v
No. 281046
Macomb Circuit Court
LC No. 2007-001116-FC
DANTE DESHAWN MOORE,
Defendant-Appellant.
Before: CAVANAGH, P.J., and JANSEN and SERVITTO, JJ.
Servitto, J. (concurring in part, dissenting in part).
I concur in the majority’s conclusions, with the exception of its determination that
because defendant’s sentence remains within the appropriate guideline range, the issue
concerning the trial court’s incorrect scoring of OV 11 is unreviewable. I respectfully dissent
from that conclusion.
As briefly mentioned by the majority, the trial court did, in fact, incorrectly score OV 11
at 50 points. MCL 777.41(1)(a) provides for a score of 50 points if “two or more criminal
penetrations occurred.” MCL 777.41(2)(c) provides that no points should be scored for the
penetration that forms the basis of a first-degree criminal sexual conduct offense. Thus, “the
evidence must establish at least three sexual penetrations during the incident to support scoring
OV 11 at fifty points.” People v Matuszak, 263 Mich App 42, 61; 687 NW2d 342 (2004).
Here, there was no testimony that defendant engaged in penetration more than once
during any of the four individual incidents for which defendant was charged. While there was
testimony concerning other, uncharged incidents involving penetration, MCL 777.41(2)(a)
expressly provides that scoring of OV 11 is limited to penetrations “arising out of the sentencing
offense.” Moreover, MCL 777.41(2)(b) indicates that other penetrations not arising out of the
sentencing offense should be scored under OV 12 and OV 13. People v Johnson, 474 Mich 96,
102 n 3; 712 NW2d 703 (2006). The evidence therefore did not support scoring OV 11 at 50
points.
Defendant was apparently sentenced, based upon a guidelines score of 171-285 months,
to 168 months in prison. Scoring OV 11 correctly, at 0 points, reduces defendant’s minimum
guidelines range to 108-180 months. Though defendant’s sentence falls within the corrected
guidelines range, he is still entitled to resentencing.
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MCL 769.34(10) provides:
If a minimum sentence is within the appropriate guidelines sentence range,
the court of appeals shall affirm that sentence and shall not remand for
resentencing absent an error in scoring the sentencing guidelines or inaccurate
information relied upon in determining the defendant's sentence. A party shall not
raise on appeal an issue challenging the scoring of the sentencing guidelines or
challenging the accuracy of information relied upon in determining a sentence
that is within the appropriate guidelines sentence range unless the party has raised
the issue at sentencing, in a proper motion for resentencing, or in a proper motion
to remand filed in the court of appeals.
“MCL 769.34(10) makes clear that the Legislature intended to have defendants sentenced
according to accurately scored guidelines and in reliance on accurate information. . .” People v
Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006). If defendant’s sentence, using the correct
score for OV 11, is within the “appropriate” guidelines range, we are thus to affirm unless there
was an error in the scoring of the guidelines. Here, as the majority indicates, there was an error
in the scoring. Because there was an error in the scoring, we look to the next sentence of the
statute to see if the issue is reviewable.
In People v Jackson, 487 Mich 783; 790 NW2d 340 (2010), the Supreme Court
examined, in depth, the language of MCL 769.34(10) and its meaning with respect to
preservation of a sentencing issue:
According to [MCL 769.34(10)], there are two ways for the defendant to
make this request at the trial court level: either by making the request at
sentencing or in a proper motion for resentencing. In cases on appeal, the request
must be made in a proper motion to remand filed in the Court of Appeals. In this
case, we need not address whether defendant followed the procedures to request
relief in the trial court for the scoring based on the felonious-assault convictions
because either procedure would have been futile until such time as the Court of
Appeals affirmed or reversed the felonious-assault convictions. Nor would we
expect a trial court to anticipate that its rulings might be found incorrect or force it
to entertain such a motion. Accordingly, given the circumstances in this case,
the only issue presented is whether defendant made a proper motion to remand in
the Court of Appeals.
To determine whether defendant complied with this section of the statute, we
must first determine what constitutes a proper motion to remand in the Court of
Appeals. Id. at 796.
The Court then stated:
The purpose of a motion is to request a court to rule on an issue on a
timely basis when the issue is ripe for adjudication. Given that defendant made
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his request as part of his brief on appeal, his request served this purpose. It was
presented on a timely basis and provided the Court of Appeals with all necessary
information to make a decision. The only possible defect in this process is that
his request was not made in a separate pleading. However, we cannot assume that
the Legislature necessarily intended that a proper motion to remand be done in a
separate filing. “Motion” is defined as a “written or oral application requesting a
court to make a specified ruling or order.” “Application” is defined as a “request
or petition.” Under this broad definition of a motion, a separate pleading was not
required because defendant made a written request for the court “to make a
specified ruling or order.”
Nothing further was required given these
circumstances. Requiring a defendant to file a separate pleading would
necessitate a party to request review of an issue that is not ripe for review. We
conclude that when the request to remand will not be ripe for review until after
the Court of Appeals has adjudicated the merits, the mandate of a proper motion
in MCL 769.34(10) is met when a defendant makes a request to remand for
resentencing with supporting grounds within his appellate brief.
***
Moreover, “[i]t is difficult to imagine something more ‘inconsistent with
substantial justice’ than requiring a defendant to serve a sentence that is based
upon inaccurate information.” Id. 799-800.
In this case, there was a scoring error, the scoring error altered the appropriate guidelines
range, and defendant requested a remand for resentencing, with appropriate supporting grounds.
“It would be in derogation of the law, and fundamentally unfair, to deny a defendant in the
instant circumstance the opportunity to be resentenced on the basis of accurate information. A
defendant is entitled to be sentenced in accord with the law . . .” People v Francisco, 474 Mich
82, 89-91; 711 NW2d 44 (2006). See also, MCR 2.613(A)(an error justifies disturbing a
judgment or order when “refusal to take this action appears to the court inconsistent with
substantial justice.”). Based upon the above, I would remand for resentencing.
/s/ Deborah A. Servitto
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