People v. Mutchie

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                  Chie f Justice                   Justices
                                                                  Maura D. Corrigan                Michael F. Cavanagh




Opinion
                                                                                                   Elizabeth A. Weaver
                                                                                                   Marilyn Kelly
                                                                                                   Clifford W. Taylor
                                                                                                   Robert P. Young, Jr.
                                                                                                   Stephen J. Markman
____________________________________________________________________________________________________________________________

                                                                                      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     fifteen        to     twenty-five              years   in     prison       for


                kidnaping.            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.        MCL 777.41.     The Court then


affirmed.     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




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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.       Because the sentences imposed by the circuit court


were       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.


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