Order Michigan Supreme Court
Lansing, Michigan
April 21, 2017 Stephen J. Markman,
Chief Justice
154266 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 154266
COA: 332650
Antrim CC: 2015-004703-FC
DAVID ANTHONY ZOULEK,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 24, 2016 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the questions presented should be reviewed by this Court.
MARKMAN, C.J. (dissenting).
A defendant is assessed points for Offense Variable 11 if he or she: (a) commits
one or more sexual penetrations in addition to the sexual penetration that “forms the basis
of” the sentencing offense and (b) the additional penetration also “aris[es] out of the
sentencing offense.” MCL 777.41. There must be a “connective relationship, a cause
and effect relationship, of more than an incidental sort” between the additional
penetration and the sentencing offense. People v Johnson, 474 Mich 96, 101 (2006).
Here, while the victim testified that she had been sexually penetrated on multiple
occasions, there was no evidence that any of these arose out of the sentencing offense.
Because trial counsel clearly rendered ineffective assistance when he incorrectly
informed the court that a score of 50 points (rather than 0 points) was proper based on the
victim’s testimony and appellate counsel was also ineffective for failing to raise this
obvious error in the Court of Appeals, I would remand for resentencing. People v
Francisco, 474 Mich 82 (2006).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 21, 2017
t0418
Clerk