Sentencing; Scoring of OV 11; MCL 777.41(1)(b) & (2)(a); Presumptive proportionality of a within-guidelines sentence; People v Posey; People v Ventour

Holding that the trial court did not err in scoring 25 points for OV 11 and that defendant failed to overcome the presumption that his within-guidelines sentence was proportionate, the court affirmed. He was convicted of CSC II and sentenced to 84 to 180 months. He first argued on appeal that the trial court erred in scoring OV 11. It determined that OV “should be scored at 25 points based on defendant’s conduct during” an incident referred to as “the camper incident, which included both the sentencing offense and the digital penetration of the victim. [It] found that the PSIR’s description of the sentencing offense established, by a preponderance of the evidence, that that incident was ‘one transaction with multiple events within’ it and not ‘separate transactions over a period of time,’ and so defendant’s digital penetration of the victim in the camper arose from the sentencing offense.” The court did not find any “reversible error in the trial court’s finding that the camper incident was a single transaction comprising both defendant’s sentencing offense and his penetration of the victim, as a preponderance of the evidence, along with the reasonable inferences drawn therefrom, supported such a finding.” It concluded that defendant offered “nothing in the record to substantiate his position that the offense he pleaded to and was sentenced for was based on” an incident referred to as “the tire-stack incident, and not the camper incident. Nothing about [his] guilty plea itself suggested as much, nor does any other part of the record.” As to his proportionality argument, he failed to identify—and the court did “not see—any ‘unusual circumstances’ related to himself or the sentencing offense ‘that would render [his] presumptively proportionate sentence disproportionate.’”