Sentencing; Waiver; People v Hershey; Ineffective assistance of counsel; People v Yeager; Stipulating to a 25-point score for OV 11; MCL 777.41(1)(b); MCL 777.41(2)(a); The victim’s testimony that “oral sex” occurred as well as “sexual intercourse”

The court held that defendant waived the issue of whether OV 11 was properly scored by expressly agreeing to a 25-point score, and defense counsel was not ineffective for stipulating to that score because the victim’s testimony supported it. Defendant was convicted of CSC III and distributing or promoting child sexually abusive activity. The “trial court began the resentencing hearing by confirming that it was undisputed that OV 11 needed to be reassessed at 25 points. [It] asked defense counsel if she agreed, and” she replied that she did. It then confirmed that this changed the “guidelines from 84 to 175 months to 78 to 162 months, which included defendant’s habitual-offender status.” When asked, defense counsel again stated her agreement. “After defendant reviewed the PSIR and made no objection, the trial court again” asked defense counsel if she had anything further on the guideline issue, and she “responded, ‘No.’ These inquiries and responses” showed that the trial court here “asked the parties much more specific and targeted questions than in Hershey.” In addition, “defendant stipulated before resentencing that OV 11 be reassessed at 25 points.” His ineffective assistance claim was based on his argument that the evidence was insufficient for the trial court to find that oral sex was a penetration arising out of the CSC III because the victim failed to explain what she meant when she used the term. But while she “was never specifically asked to define ‘oral sex,’ she expressly differentiated it from ‘sexual intercourse,’ which she” did define and which was the sentencing offense. “Her testimony gave no reason to question whether she understood the meaning of ‘oral sex’ as anything other than the common meaning. [Her] testimony and the common understanding of the term” were sufficient to support the 25-point score. “Because the victim clearly identified ‘oral sex’ as a separate penetration arising out of the sentencing offense, defense counsel was not ineffective for failing to advocate for a meritless position.” Affirmed.