PEOPLE OF MI V MICHAEL RAY MUTCHIE
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chie f Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED APRIL 1, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 121559
MICHAEL RAY MUTCHIE,
Defendant-Appellant.
_________________________________
MEMORANDUM OPINION
Armed with a knife, the defendant raped the clerk of a
grocery store in Hastings.
He then abducted her, but she was
able to escape as he drove through Saranac.
The defendant was charged with three counts of first
degree criminal sexual conduct and one count of kidnaping.
MCL 750.520b(1)(e), 750.349.
He pleaded guilty on all four
counts of the information and was sentenced to concurrent
terms of forty to one hundred years in prison for each CSC-I
count
and
kidnaping.
fifteen
to
twenty-five
years
in
prison
for
The circuit court later denied a motion for
resentencing.
The defendant filed an application for leave to appeal,
which the Court of Appeals granted, limited to his claim that
the circuit court had erred in its decision to score 50 points
under offense variable 11 of the sentencing guidelines for
each of the CSC-I convictions.
affirmed.
MCL 777.41.
The Court then
251 Mich App 273; 650 NW2d 733 (2002).
In its opinion, the Court of Appeals stated:
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. [251 Mich 274.]
Despite that correct statement, the Court of Appeals
added several pages of dicta in which it presented a close
analysis of OV 11, focusing on the instructions set forth in
MCL 777.41(2):
All of the above apply to scoring offense
variable 11:
(a)
Score all sexual penetrations of the
victim by the offender arising out of the
sentencing offense.
(b)
Multiple sexual penetrations of the
victim by the offender extending beyond the
sentencing offense may be scored in offense
variables 12 or 13.
(c) Do not score points for the 1 penetration
that forms the basis of a first- or third-degree
criminal sexual conduct offense.
The
Court
of
Appeals
concluded
that
the
circuit
court
correctly scored OV 11 in the present case.
The defendant has applied to this Court for leave to
appeal, urging that we overturn the judgment of the Court of
2
Appeals with regard to OV 11.
We affirm, but find it unnecessary to express an opinion
regarding the proper interpretation of OV 11.
As the Court of
Appeals observed, the circuit court clearly expressed its view
that the sentences imposed in this case were the proper
sentences without regard to how OV 11 might be scored.
The
forty-year minimum sentence imposed for each CSC-I conviction
was a departure above the recommended range in any event, and
the court expressly stated the substantial and compelling
reasons that justified the departure.1
The analysis of OV 11 offered by the Court of Appeals was
dictum.
were
Because the sentences imposed by the circuit court
proper
and
were
properly
explained,
we
affirm
the
judgments of the Court of Appeals and the circuit court.2
MCR
7.302(F)(1).
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
1
“A court may depart from the appropriate sentence range
established under the sentencing guidelines set forth in [MCL
777.1 et seq.] if the court has a substantial and compelling
reason for that departure and states on the record the reasons
for departure.” MCL 769.34(3).
2
We have reviewed the defendant’s other claims of error
related to the sentence imposed by the circuit court, and we
find no basis for resentencing or other relief.
3
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