Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 18, 2008
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 133474
DENNIS MERVYN SARGENT,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
PER CURIAM.
We granted leave to appeal in this case to consider whether offense variable
9 (number of victims) (OV 9) can be scored using uncharged acts that did not
occur during the same criminal transaction as the sentencing offenses. Defendant
was convicted of first-degree criminal sexual conduct and second-degree criminal
sexual conduct as a result of his sexual abuse of the 13-year-old complainant. At
defendant’s trial, the complainant’s older sister testified that defendant had also
sexually abused her when she was 15 years old. The trial court assessed 10 points
for OV 9 on the basis that there were two victims-- the complainant and the
complainant’s sister. The Court of Appeals affirmed defendant’s convictions and
sentences. Unpublished opinion per curiam, issued January 25, 2007 (Docket No.
263392).
When defendant was sentenced, MCL 777.39(2)(a) stated that “each person
who was placed in danger of injury or loss of life” must be counted as a victim
under OV 9.1 Ten points are to be assessed when there were two to nine victims.
MCL 777.39(1)(c). MCL 777.21 instructs us on how to score the sentencing
guidelines. MCL 777.21(1)(a) instructs us to “[f]ind the offense category for the
offense . . . [and] determine the offense variables to be scored for that offense
category . . . .” (Emphasis added.) MCL 777.21(2) instructs us to “score each
offense” if “the defendant was convicted of multiple offenses . . . .” (Emphasis
added.) MCL 777.21(3), which pertains to habitual offenders, instructs us to
“determine the . . . offense variable level . . . based on the underlying offense,” and
then to increase the upper limit of the recommended minimum sentence range as
indicated. (Emphasis added.) This language indicates that the offense variables
are generally offense specific. The sentencing offense determines which offense
variables are to be scored in the first place, and then the appropriate offense
variables are generally to be scored on the basis of the sentencing offense. The
primary focus of the offense variables is the nature of the offense; the
1
MCL 777.39(2)(a) has since been amended to provide: “Count each
person who was placed in danger of physical injury or loss of life or property as a
victim.” However, this amendment has no effect on this case.
2
characteristics of the offender are primarily considered under the prior record
variables.
Further, MCL 769.31(d) provides, in part:
“Offense characteristics” means the elements of the crime and
the aggravating and mitigating factors relating to the offense that the
legislature determines are appropriate. [Emphasis added.]
This subdivision is preceded by the language “As used in this section and section
34 of this chapter.” “[T]his section,” MCL 769.31, is merely a definitional
section. “[S]ection 34 of this chapter,” MCL 769.34, is the statutory provision that
provides, among other things, that the trial court must sentence within the
minimum sentence range calculated under the guidelines unless the trial court
articulates substantial and compelling reasons that justify a departure. MCL
769.34(3)(b) is the only provision that uses the phrase “offense characteristic,” and
it states that
[t]he court shall not base a departure on an offense characteristic or
offender characteristic already taken into account in determining the
appropriate sentence range unless the court finds from the facts
contained in the court record, including the presentence investigation
report, that the characteristic has been given inadequate or
disproportionate weight. [Emphasis added.]
The appropriate minimum sentence range is determined in part by scoring the
offense variables. From this context, it seems clear that the term “offense
characteristics” includes the characteristics that are taken into consideration under
the offense variables. Therefore, if anything, MCL 769.31(d) suggests that,
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generally, only conduct “relating to the offense” may be taken into consideration
when scoring the offense variables.
That the general rule is that the relevant factors are those relating to the
offense being scored is further supported by the fact that the statutes for some
offense variables specifically provide otherwise. For instance, MCL 777.44(2)(a)
provides that when scoring OV 14 (whether the offender was a leader in a
multiple-offender situation), “the entire criminal transaction should be considered .
. . .” For other offense variables, the Legislature unambiguously made it known
when behavior outside the offense being scored is to be taken into account. OV 12
(contemporaneous felonious acts), for example, applies to acts that occurred
within 24 hours of the sentencing offense and have not resulted in separate
convictions. MCL 777.42(2)(a). OV 13 (continuing pattern of criminal behavior)
explicitly permits scoring for “all crimes within a 5-year period, including the
sentencing offense,” regardless of whether they resulted in convictions. MCL
777.43(2)(a). OV 16 (property obtained, damaged, lost, or destroyed) provides
that in “multiple offender or victim cases, the appropriate points may be
determined by adding together the aggregate value of the property involved,
including property involved in uncharged offenses or charges dismissed under a
plea agreement.” MCL 777.46(2)(a). Finally, OV 8 (asportation or captivity of
victim) specifically focuses on conduct “beyond the time necessary to commit the
offense.” MCL 777.38(1)(a). That the Legislature has explicitly stated that
conduct not related to the offense being scored can be considered when scoring
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some offense variables strengthens our conclusion that, unless stated otherwise,
only conduct that relates to the offense being scored may be considered.
Finally, aside from having no basis in the language of the relevant statutes,
the prosecutor’s interpretation simply does not make sense. If, as the prosecutor
contends, we are not limited to conduct relating to the sentencing offense, every
single person that the defendant had ever placed in danger of injury or loss of life
would properly be considered for the purposes of OV 9. Instead, when scoring
OV 9, only people placed in danger of injury or loss of life when the sentencing
offense was committed (or, at the most, during the same criminal transaction)
should be considered.2
In the instant case, the jury convicted defendant only of sexually abusing
the 13-year-old complainant. It did not convict him of sexually abusing the
complainant’s sister. Furthermore, the abuse of the complainant’s sister did not
arise out of the same transaction as the abuse of the complainant. For these
reasons, zero points should have been assessed for OV 9. Reducing the OV 9
score from 10 to zero points reduces defendant’s recommended minimum sentence
2
However, this does not mean that a defendant must commit more than one
offense for there to be more than one victim. The instructions for OV 9 provide
that a victim is each person who is placed in danger of injury or loss of life. MCL
777.39(2)(a). The instructions do not necessarily require that a separate criminal
offense have occurred with respect to that victim. For example, in a robbery, the
defendant may have robbed only one victim, but scoring OV 9 for multiple victims
may nevertheless be appropriate if there were other individuals present at the
scene of the robbery who were placed in danger of injury or loss of life.
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range from 108-180 to 81-135 months with regard to the first-degree criminal
sexual conduct conviction and from 36-71 to 29-57 months with regard to the
second-degree criminal sexual conduct conviction. Therefore, we reverse in part
the judgment of the Court of Appeals, vacate defendant’s sentences, and remand
this case to the trial court for resentencing. In all other respects, we deny leave to
appeal, because we are not persuaded that we should review the remaining
questions presented.
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
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