                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 20, 2015
               Plaintiff-Appellee,

v                                                                    No. 320489
                                                                     Jackson Circuit Court
RANDY SCOTT STEVENS,                                                 LC No. 13-004158-FC

               Defendant-Appellant.


Before: SAWYER, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

         Defendant pleaded guilty to second-degree child abuse, MCL 750.136b(3)(b). He was
sentenced to 6 to 10 years’ imprisonment and was ordered to pay $3,380 in restitution.
Defendant filed a delayed application for leave to appeal, which was denied by this Court.
Defendant applied for leave to appeal to the Supreme Court, and this case was remanded to us
“for consideration as on leave granted.” People v Stevens, 497 Mich 880; 854 NW2d 713
(2014). We affirm defendant’s conviction. We remand for resentencing, however, as we find
error in the scoring of Offense Variables (OVs) 13 and 14. Lastly, we vacate the order of
restitution.

       Defendant seeks to have his plea-based conviction vacated on the grounds that the
elements of second-degree child abuse were not established at the plea hearing.1 Second-degree
child abuse requires that the defendant “knowingly or intentionally commit[] an act likely to
cause serious physical or mental harm to a child regardless of whether harm results.” MCL
750.136b(3)(b). Defendant admitted at the hearing, and does not now contest, that on numerous
occasions, he knowingly and intentionally sent his son to the home of someone he knew to be a


1
 A defendant must file a motion to withdraw his plea in the trial court, or this issue is waived for
appellate review. MCR 6.310(D); People v Kaczorowski, 190 Mich App 165, 172-173; 475
NW2d 861 (1991). Defendant did not file a motion to withdraw his plea in the trial court.
Therefore, we need not consider this issue. See id. at 173. However, given that this case has
come to us on leave granted from the Supreme Court, we elect to address it.




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sex offender while taking no protective actions. Defendant does argue on appeal that it was not
likely for harm to result to the child based on his actions. However, defendant explicitly
admitted at the plea hearing that “as a result [of his actions, his son] was exposed to serious
physical or mental harm.” Direct and unequivocal admission to each individual element of the
crime satisfies the factual basis requirement.

        This is not to say that simply by allowing a child to go to the home of a known sex
offender that a parent is guilty of second-degree child abuse. Where a defendant disputes the
charges, the prosecution must prove beyond a reasonable doubt that in doing so, the parent
intentionally exposed the child to likely physical or mental harm. MCL 750.136b(3)(b). Here,
however, the defendant knowingly and voluntarily admitted under oath that he did exactly that.
See People v Fonville, 291 Mich App 363, 377; 804 NW2d 878 (2011) (citation omitted) (“A
factual basis to support a plea exists if an inclupatory inference can be drawn from what
defendant has admitted.”).

        Defendant next argues that the sentencing guidelines were improperly scored and
specifically challenges the scoring of prior record variable (PRV) 1, OV 12, OV 13, OV 14, and
OV 19.2

         PRV 1 addresses prior high severity felony convictions, MCL 777.51, and 25 points are
assessed when the defendant has one prior high severity felony conviction. MCL 777.51(1)(c).
A prior high severity felony conviction is not counted under PRV 1 if there exists “a gap of 10 or
more years between a discharge date and a subsequent commission date.” People v Billings, 283
Mich App 538, 552; 770 NW2d 893 (2009). Defendant challenges the scoring of PRV 1 on the
basis that there was more than a 10-year gap between his discharge date for an armed robbery
conviction and the date he committed the instant offense. Defendant was discharged on the
armed robbery conviction on October 13, 1997, and he committed the instant offense between
September 2011 and January 25, 2013. However, the record demonstrates that defendant was
convicted of numerous misdemeanor offenses between those dates. There was never a period of
ten years in which defendant remained conviction-free. See People v Reyna, 184 Mich App 626,
632; 459 NW2d 75 (1990) (“[T]he emphasis under the ten-year rule is not on what offense was
committed, but whether the defendant was able to be completely conviction-free for a period of
at least ten years.”). Therefore, PRV 1 was properly scored.

       OV 12 addresses contemporaneous felonious criminal acts. MCL 777.42. Five points
are assessed when the defendant committed two contemporaneous felonious criminal acts
involving other crimes. “A felonious criminal act is defined to be contemporaneous if the act
occurred within 24 hours of the sentencing offense and will not result in a separate conviction.”
People v Light, 290 Mich App 717, 722; 803 NW2d 720 (2010), quoting People v Bemer, 286
Mich App 26, 32-33; 777 NW2d 464 (2009). The trial court is required to “look beyond the


2
 The trial court’s factual determinations at sentencing “are reviewed for clear error and must be
supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). We review the interpretation and application of the sentencing guidelines de novo.
People v McDonald, 293 Mich App 292, 298; 811 NW2d 507 (2011).



                                               -2-
sentencing offense and consider only those separate acts or behavior that did not establish the
sentencing offense.” Light, 290 Mich App at 723. In this case, the sentencing offense was
established by defendant’s acts involving one of his children; however, the record supports that
he took the same action as to at least one of his other children. Defendant’s actions regarding
this other child did not establish the sentencing offense. See id. Further, the record supports that
the other acts were contemporaneous. Testimony from the preliminary examination established
that the children had gone to the sex offender’s home together; thus, the acts occurred within 24
hours of one another. See id. at 722. Additionally, defendant was not charged or convicted of
child abuse with respect to the any other children; thus, these acts did not, and will not, result in
separate convictions. See id. Therefore, OV 12 was properly scored.

        OV 13 addresses a continuing pattern of criminal behavior. MCL 777.43. Ten points are
assessed when “[t]he offense was part of a pattern of felonious criminal activity involving a
combination of 3 or more crimes against a person or property . . . .” MCL 777.43(1)(d). All
relevant crimes within a five-year period, including the sentencing offense, should be scored.
People v Bonilla-Machado, 489 Mich 412, 424; 803 NW2d 217 (2011). An offense may be
considered regardless of whether it resulted in a criminal conviction. MCL 777.43(2)(a). We
find that the trial court clearly erred in considering an arson that defendant allegedly committed
and thefts in which defendant was involved under this variable. There is no record evidence that
these crimes occurred within a five-year period of the instant offense, and we cannot merely
assume that they did. The only other evidence of felonious criminal activity against a person or
property occurring within a five-year period of the instant offense is evidence of an arson that
occurred in September 2011. Therefore, because the record does not support that the instant
offense “was part of a pattern of felonious criminal activity involving a combination of 3 or more
crimes against a person or property,” see MCL 777.43(1)(d), the trial court clearly erred in
scoring OV 13. Because this scoring error alters the appropriate guidelines range, defendant is
entitled to resentencing. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

        OV 14 addresses the offender’s role in the instant offense. MCL 777.44. 10 points are
assessed if the defendant “was a leader in a multiple offender situation.” MCL 777.44(1)(a). A
“multiple offender situation” under OV 14 concerns “a situation consisting of more than one
person violating the law while part of a group.” People v Jones, 299 Mich App 284, 287; 829
NW2d 350 (2013), vacated in part on other grounds 494 Mich 880 (2013). A “leader” is “one
who is a ‘guiding or directed head’ of a group.” Id., quoting Random House Webster’s College
Dictionary (1999). In this case, defendant’s wife was charged with first-degree child abuse for
the same conduct. However, there was no evidence that her actions were either directed by
defendant or the result of joint planning in which he took the leadership role. Thus, it was clear
error to conclude that a preponderance of the evidence supported this scoring. The trial court
focused on attempts by defendant to manipulate the testimony of his wife and children after the
charges were filed. These actions, which substantially post-date the charged actions, are
properly considered under OV 19, but do not, in themselves, constitute evidence that he directed
his wife’s own criminal conduct.

        Turning to OV 19, we find no error in the trial court’s decision to score 10 points because
“[t]he offender otherwise interfered with or attempted to interfere with the administration of
justice.” MCL 777.49(c). The record supports that: defendant coached the children before they
were interviewed, contacted the children during this proceeding despite a no-contact order, and


                                                -3-
attempted to manipulate his wife by telling her not to make a deal with the prosecutor unless they
were both offered one. He also falsely told his wife that the prosecutor tried to get him to turn
against her.

       Next, defendant argues that the trial court erred in assessing him $3,380 in restitution.3

       A trial court’s order of restitution is governed by MCL 780.766(2), which provides, in
pertinent part:

       [W]hen sentencing a defendant of a crime, the [trial] court shall order, in addition
       to or in lieu of any other penalty authorized by law or in addition to any other
       penalty required by law, that the defendant make full restitution to any victim of
       the defendant’s course of conduct that gives rise to the conviction or to the
       victim’s estate.

Our Supreme Court recently held in People v McKinley, 496 Mich 410, 419-420; 852 NW2d 770
(2014),4 that “any course of conduct that does not give rise to a conviction may not be relied on
as a basis for assessing restitution against a defendant.” Defendant was assessed restitution in
this case for his course of conduct concerning the charged arson, of which he was not convicted.
Thus, the restitution did not result from defendant’s course of conduct that gave rise to his
conviction of second-degree child abuse. Defendant is entitled to remand for an entry of an
amended judgment of sentence that reflects that defendant does not owe restitution. See id.

        Defendant argues that the trial court abused its discretion by failing to adequately respond
to his challenges to the contents in the presentence investigation report (PSIR). The contents of
the PSIR are presumed to be accurate unless challenged by a defendant. People v Ratkov (After
Remand), 201 Mich App 123, 125; 505 NW2d 886 (1993). The defendant bears the burden of
going forward with an “effective challenge” to the accuracy or relevancy of the contents of the
PSIR. People v Lloyd, 284 Mich App 703, 705; 774 NW2d 347 (2009). Once an effective
challenge has been raised, the burden shifts to the prosecution to prove the disputed facts by a
preponderance of the evidence. Id. The trial court is required to respond to the defendant’s
challenge. People v Spanke, 254 Mich App 642, 648; 658 NW2d 504 (2003). It is far from clear
that defendant properly identified and challenged specific alleged inaccuracies in the PSIR.
However, we need not address this issue. Because we remand for resentencing, a new PSIR will


3
 We review a trial court’s order of restitution for an abuse of discretion. People v Bell, 276
Mich App 342, 345; 741 NW2d 57 (2007).
4
  We note that McKinley was decided after the trial court assessed restitution in this case.
McKinley overruled People v Gahan, 456 Mich 264; 571 NW2d 503 (1997), in which our
Supreme Court had held that MCL 780.766(2) “authorize[d] the sentencing court to order
criminal defendants to pay restitution to all victims, even if those specific losses were not the
factual predicate for the conviction.” Despite the fact that the restitution assessed in this case
would have been permitted under Gahan, both parties agree that it is no longer permitted under
McKinley.



                                                -4-
be prepared and, if defendant believes it contains inaccuracies, his attorney will have the
opportunity to raise the issue with the trial court.

        Defendant also filed a Standard 4 brief. However, MCR 7.205(E)(4) provides that
“[u]nless otherwise ordered, the appeal is limited to the issues raised in the application and
supporting brief.” In remanding to this Court “for consideration as on leave granted,” the
Supreme Court did not order that new issues could be raised. Thus, our consideration is properly
limited to those raised in the application and supporting brief. MCR 7.205(E)(4). Nevertheless,
we have reviewed defendant’s Standard 4 brief. The first issue he raises concerns the alleged
lack of a factual basis for the plea and we have considered that argument above. The second
issue concerns allegations of “judge shopping” by the prosecution and we find the issue to be
wholly without merit. The third issue concerns the scoring of OV 4 and defendant may raise this
issue at resentencing should he choose to do so.

        Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction.



                                                           /s/ David H. Sawyer
                                                           /s/ Michael J. Kelly
                                                           /s/ Douglas B. Shapiro




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