Sentencing; Scoring of OV 12; MCL 777.42(1)(a); People v. Carter

The court held that there were sufficient grounds for the trial court to determine that defendant committed 3 “or more contemporaneous felonious acts beyond the sentencing offense” to score 25 points for OV 12. He pled guilty to producing child sexually abusive material and CSC II. He was sentenced to 85 to 240 months for the former and 71 to 180 months for the latter. He argued that the trial court erred in scoring OV 12. The court disagreed. In establishing a factual basis for his producing child sexually abusive material conviction, the trial court relied on only one of three videos defendant made on one day. The prosecution also relied on that video to support the CSC II conviction. “Because the trial court relied on only this one video in establishing defendant’s plea, only this one video constituted the underlying basis for the sentencing offenses . . . .” His PSIR reflected that he “produced two additional videos on that same day. These acts, identical in pertinent part to the sentencing offense of producing child sexually abusive material, could have constituted additional felonious acts under the same statute, MCL 750.145c(2). He admitted using his cell phone to record the three videos, which could have constituted additional felonious acts under MCL 752.796 (using a computer to commit a crime). He also possessed 64 files of child pornography on one of his Flickr accounts and 142 additional files of child pornography on another of his Flickr accounts, which could have constituted additional felonious acts under MCL 750.145c(4) (possession of child sexually abusive material).” The court noted that in Carter, the Supreme Court held that while “the defendant fired three gunshots, all three shots were a part of the single sentencing offense because” the prosecution relied on all three to convict. In contrast, here the trial court relied on only “one of the three contemporaneous videos to establish the factual basis for defendant’s plea.” The other two videos defendant made, “the use of a cell phone to commit a crime, and possession of additional child pornography” supported the OV 12 score. Affirmed.