Defendant was charged with two counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct. Pursuant to a plea agreement, defendant pleaded nolo contendere of assault with intent to commit sexual penetration, MCL 750.520g(l); MSA 28.788(7X1), and assault with intent to commit second-degree criminal sexual conduct, MCL 750.520g(2); MSA 28.788(7X2). Defendant was sentenced to prison terms of 48 to 120 months and forty to sixty months for his respective convictions. Defendant appeals as of right. We affirm.
Defendant argues that the trial court erred in considering prior criminal sexual conduct with the victim in assessing fifty points for Offense Variable 12. This issue has arisen in two published opinions since the adoption of Administrative Order No. 1990-6, which requires this Court to follow a prior published decision of this Court issued on or after November 1, 1990.
In People v Warner, 190 Mich App 26; 475 NW2d 397 (1991), this Court concluded that uncontroverted evidence of prior instances of sexual penetration between the defendant and the victim could be used to support the trial court’s scoring of offense variables. In Warner, the trial court relied on the evidence of prior penetrations between the defendant and the victim that was contained within the presentence report in scoring fifty points for ov 12. In affirming the defendant’s sentence, this Court stated:
We note, for purposes of defendant’s argument regarding the sentence imposed, that even if we were to find that the trial court improperly scored *286ov 12, defendant’s sentence would still fall within the minimum guidelines range. [Id. at 29.]
In People v Polus, 197 Mich App 197; 495 NW2d 402 (1992),1 another panel of this Court (Griffin, J., dissenting), held that prior conduct cannot be used in the scoring of ov 12. In so holding, the panel noted in a footnote that Warner was not controlling authority:
While Warner does arguably support the proposition that prior conduct between the defendant and the victim may be considered in the scoring of Offense Variable 12, we conclude that Warner does not control the case at bar because any such conclusion is mere dicta. While the trial court in Warner did consider prior conduct in the scoring of Offense Variable 12, and this Court upheld the trial court’s scoring of the guidelines, the Warner decision never explicitly addressed the question whether prior conduct is appropriate in considering the scoring of Offense Variable 12. Rather, the question addressed by the Court in Warner was whether the trial court could properly consider uncontroverted evidence in a presentence report in establishing the scoring of the sentencing guidelines. Furthermore, the Warner Court noted that it would not remand the matter for resentencing even if it were to find that the trial court had improperly scored Offense Variable 12 on the basis of the trial court’s comments at sentencing. [Id. at 200-201, n 3.]
In his dissenting opinion in Polus, Judge Griffin stated:
I disagree with the majority’s conclusion that the language in Warner addressing this scoring issue is mere dicta. In this regard, I note that, *287until today, our Court has routinely followed Warner with regard to this issue. . . .
The decision in Warner is binding precedent pursuant to Administrative Order No. 1990-6, 436 Mich lxxxiv. In my view, the majority’s failure to follow Warner is a violation of that order. [Id. at 206-207.]
In this case, we agree with the prosecutor’s contention that the Polus Court erroneously concluded that Warner was not controlling on the issue whether prior conduct between the defendant and the victim may be considered in the scoring of ov 12. Although not the central issue raised in the case, the consideration of whether prior conduct can be considered in the scoring of ov 12 was essential to the determination whether ov 12 was scored properly. The appropriateness of the scoring of ov 12 was considered by the Warner Court, as evidenced by its statement that "even if we were to find that the trial court improperly scored ov 12 . . .” and its affirmance of the defendant’s sentence.2 Thus, the language in Warner is not dicta, and a rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scoring of ov 12. Hence, the Polus Court violated Administrative Order No. 1990-6 by failing to follow Warner.
Applying Warner, the trial court properly scored fifty points for ov 12, because the presentence report reveals, and defendant admitted, that he digitally penetrated the victim on prior occasions.
Affirmed.
The prosecutor in Polus filed an application for leave to appeal to the Supreme Court on March 5, 1993. Leave is still pending.
The Warner Court’s conclusion that it would find the defendant’s sentence to be proportionate even if the guidelines were improperly scored does not render its conclusion that the trial court properly scored ov 12 dicta, as suggested by the Polus Court.