Sentencing; Scoring of OV 9; MCL 777.39(1)(c); “Proportionality”; Principle that scoring decisions must be supported by a preponderance of the evidence; People v. Steanhouse; Judicial fact-finding; People v. Lockridge; United States v. Crosby (2d Cir.); Presentence investigation report (PSIR)

The court held that remand was required as to the defendant’s sentences. He pleaded no contest to two counts of CSC involving a young child. The trial court imposed upward departure sentences for each conviction. On appeal, he challenged the factual basis for scoring OV 9 and the proportionality of the sentences. The court found “no error in the scoring of” OV 9, which “provides for the assessment of 10 points for OV 9 when ‘two to nine victims . . . were placed in danger of physical injury or death.’” It noted the “main victim” was a seven-year-old girl, and “at the time of the assault, [her] four-year-old brother was in the room.” Further, the evidence “suggested that defendant had already, or planned to, assault the young boy as well. The female victim indicated that defendant had inappropriately touched her brother’s buttocks. The children’s mother heard defendant talking to both children about ‘dirty butts’ before she opened the bedroom door and caught defendant touching her daughter. And defendant reported to the agent preparing his [PSIR] that he had played a game with both children, whom he had just met, called ‘stinky butt.’” The court next found that although defendant’s contention that the trial court failed to state substantial and compelling reasons in support of the upward departure sentences is now irrelevant, it could not “be certain whether the trial court would have imposed the same sentences had it been aware that the mandatory legislative sentencing guidelines were unconstitutional and that its departure sentences must be reasonable rather than based on substantial and compelling reasons.” Thus, it remanded for consideration of whether resentencing is required pursuant to Crosby. “The trial court must consider the reasonableness of the sentences before we can consider their proportionality.” Thus, further review was “not ripe.”