Sentencing; People v. Lockridge; Crosby v. United States (2d Cir.); Scoring of OV 11; MCL 777.41; Penetration; MCL 777.41(2)(a)-(c); Res judicata; VanderWall v. Midkiff; Whether the trial court can consider facts concerning uncharged offenses or offenses for which the defendant was acquitted; People v. Compagnari; People v. Ewing; People v. Harris; People v. Golba; People v. Stokes; Burden of proof when scoring OVs; People v. Hardy

The court held that the trial court did not err in scoring OV 11. The defendant was convicted of CSC I, felonious assault, and domestic violence after he attacked his long-term girlfriend. In a prior appeal, the court rejected his challenges to the scoring of various OVs and PRVs, but remanded because OV 11 had been scored based on judicially-found facts. On remand, the trial court reaffirmed the earlier imposed sentences. On appeal, the court held that defendant waived his challenge to the scoring of OV 11 by failing to raise it in the initial appeal. Nonetheless, it found his challenge meritless. It rejected his argument that the scoring of OV 11 was improper because it required the trial court to score points for an offense of which defendant had been acquitted by a jury. It noted that “‘[a] lthough a trial court may not make an independent finding of guilt with respect to a crime for which a defendant has been acquitted, and then sentence the defendant on the basis of that finding, the court in fashioning an appropriate sentence may consider the evidence offered at trial, including other criminal activities established even though the defendant was acquitted of the charges . . . .’” Further, “the trial court was already warned that the guidelines are advisory and, in light of its reliance on judicially found facts, that it must determine ‘whether it would have imposed a different sentence.’” The trial court “expressly indicated ‘that it would not have imposed a different sentence.’” It “found by a preponderance of the evidence that one sexual penetration occurred, in addition to the penetration underlying the sentencing offense, to support it score for OV 11.” Affirmed.