Sentencing; Scoring of OV 10; MCL 777.40(1)(b); “Predatory conduct” (MCL 777.40(3)(a)); People v Cannon; Proportionality of a departure sentence; Explanation for the extent of the departure; People v Steanhouse; Request for resentencing before a different judge

The court held that the trial court did not err in scoring 15 points for OV 10 in sentencing defendant-Boglarsky on his CSC I conviction. But while the departure sentence it imposed may be reasonable given the facts here, the trial court did not “state adequate reasons on the record” for the court to conclude this was so. Thus, it vacated defendant’s 20 to 50-year sentence and remanded for resentencing, noting that if the trial court again departs from the “guidelines, it must justify the departure, including the extent of the departure imposed.” The court declined defendant’s request for resentencing before another judge. As to the scoring of OV 10, the court found it “clear that Boglarsky engaged in predatory conduct. As the trial court recognized, Boglarsky preyed on the 13-year-old’s susceptibilities and desire to ‘get back’ at her father for abandoning her and her sister. The presentence investigation report indicates that the 13-year-old has a cognitive developmental delay and a cognitive impairment. Moreover, Boglarsky’s primary purpose for engaging in his behavior was to convince [her] to have a sexual relationship with him. In fact, he maintained that [they] were ‘dating,’ and he gave her a ring.” Thus, the court held that the record supported the OV 10 score on the ground that he “engaged in predatory conduct.” As to his proportionality challenge, he contended that while “the trial court’s reasons for departing from the guidelines may have explained the 33% departure from the guidelines initially imposed, [it] did not adequately explain the 185% departure from the corrected guidelines range.” The court agreed. While the trial “court acknowledged that the departure imposed was very significant and stated that the ‘drastic change and reduction in the advisory minimum guidelines’ did not affect its determination regarding a proportionate sentence, [it] failed to justify the extent of the departure.” Although it stated that it would have imposed “the same 20-year minimum sentence regardless of the” guidelines and of whether the court remands for resentencing, it was “required to justify the extent of the departure.”