            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 17, 2019
               Plaintiff-Appellee,

v                                                                  No. 344563
                                                                   Shiawassee Circuit Court
ABIGAIL RAE SPRINGS,                                               LC No. 2017-009479-FC

               Defendant-Appellant.


Before: SWARTZLE, P.J., and MARKEY and REDFORD, JJ.

PER CURIAM.

        Defendant appeals by delayed leave granted the sentence for her plea-based conviction of
first-degree child abuse, MCL 750.136b(2). Defendant was sentenced to 15 to 50 years’
imprisonment. The 15-year minimum sentence represented the very top end of the guidelines
range. The issue on appeal is whether defendant is entitled to resentencing because the
prosecutor introduced evidence at sentencing that defendant had taken and failed a polygraph
examination, and, if so, whether a different judge must impose sentence. Defendant does not
challenge her conviction. We affirm the sentence.

        Defendant was charged with one count of first-degree child abuse and, in the alternative,
a single count of second-degree child abuse, MCL 750.136b(3), with respect to injuries sustained
by her daughter, NS, who was about two-years old at the time. Defendant subsequently pleaded
guilty to first-degree child abuse. The plea included an agreement that “the resulting sentence
would be within the guideline range.” Defendant acknowledged that the prosecution had roughly
calculated the guidelines range to be 81 to 135 months’ imprisonment. But she noted her
understanding that the trial court would ultimately be the arbiter in setting the actual minimum
sentence range and that it might differ from the prosecutor’s calculation.

        At the plea hearing, defendant testified for the purpose of establishing the factual basis
for her plea. Defendant asserted that she found significant bruises all over NS’s buttocks that
had been inflicted by her boyfriend Derrick Mason III. Defendant conceded that she did not seek
medical attention for NS’s bruises. Instead, defendant confirmed that she agreed to and


                                               -1-
participated in Mason’s plan to soak the bruised area in boiling hot water in an attempt to hide
the bruises, knowing full well that the scalding water would cause further serious injury to NS.
Defendant acknowledged that she failed to protect NS and failed to seek immediate medical
attention for NS’s burn injuries. In response to questioning from the trial court, defendant
admitted that she was involved in either knowingly or intentionally causing burns to the child.

        The presentence investigation report (PSIR) revealed additional information regarding
past and present abuse of NS. The PSIR indicated that an investigation showed that NS had
suffered bruising on her back and thighs, a lacerated liver, femur and pelvis fractures, a possible
spleen injury, a broken arm, a subdural hemorrhage, a cut to her head, and a perforated stomach,
which caused her to become septic. Some of her injuries were consistent with Shaken Baby
Syndrome. NS weighed 14 pounds, and an emergency room physician stated that NS was
“starved, iron-deficient, [and] protein calorie malnourished.” The doctor opined that NS “was
obviously severely physically abused and brutalized and because of the extent of the injuries,
may have been tortured.” Defendant gave the police inconsistent, dubious, and evolving
accounts of how NS was injured. Defendant provided innocent explanations for some of NS’s
injuries or blamed them on Mason.

        Attached to a sentencing memorandum prepared by the prosecution for the court to
review was a copy of a report prepared by Detective Sargent Robert Scott of the Michigan State
Police, who had conducted a polygraph examination of defendant. As part of the examination,
Scott asked defendant whether she had caused any of the physical injuries suffered by NS, and
defendant denied doing so. On the basis of his interpretation of the polygraph test, Scott opined
that defendant was not being truthful. Scott’s report also summarized statements about NS’s
injuries made by defendant after the polygraph examination was concluded. Those statements
were consistent with defendant’s guilty plea; however, there was additional information,
including defendant’s admissions that she and Mason had tied NS to a bed to keep her from
touching her burns and that they had pulled back and forth on NS, possibly shaking her, in an
effort to put NS’s hip and arm “back into place.” The report also indicated that defendant had
signed a written statement, which was also attached to the prosecutor’s sentencing memorandum,
and which consisted of numerous admissions made by defendant concerning NS’s injuries.

       The PSIR contained a summary of defendant’s statements, indicating in part that
defendant had “admitted spanking [NS] on the buttocks [on] several occasions and spanking her
hard enough one time to cause a bruise.” At the sentencing hearing, defendant, through counsel,
asked the court to strike that part of the sentence in the PSIR reflecting that bruising had resulted
from a spanking. In response, the prosecutor argued that the full statement, including the
sentence in dispute, was “part of the police report” and was recorded and “made to the
polygrapher.” The trial court ruled that the statement “will stand as reported,” and it was left in
the PSIR. Although the results of the polygraph examination were presented to the trial court,
the prosecutor did not discuss the results in the sentencing memorandum, nor did the prosecution
mention the results of the examination at sentencing. The prosecutor did, however, reference in
the memorandum and at sentencing the post-examination admissions and statements made by
defendant to Scott.




                                                -2-
        At the sentencing hearing, the trial court addressed and decided various challenges to the
scoring of the guidelines. The minimum sentence guidelines range was set at 108 to 180 months
(9 to 15 years). The trial court stated that it would abide by the parties’ sentencing agreement
and sentence defendant within the guidelines range. Defendant argued for a sentence at the low
end of the guideline range, maintaining that Mason was primarily responsible for the child abuse
and that defendant had also been abused by Mason. The prosecutor countered that defendant
was untruthful, that she would say whatever was necessary to avoid responsibility, that she could
have sought help for and protected NS, and that the child’s injuries were horrific. The
prosecution requested a sentence at the high end of the guidelines range.

        The trial court recited the extensive injuries suffered by NS. The court explained that
“[t]his would be the most horrific and savage case of child abuse that this [c]ourt has ever seen;
what keeps this case from being the worst, however, is that [NS] is alive and that she’s
recovering.” And in response to defendant’s argument that she was not fully to blame for those
injuries, the trial court stated that defendant was responsible for the child and failed to protect
her. Accordingly, the court stated that it would sentence defendant “to the maximum possible
sentence” permitted by the plea and sentencing agreement. The trial court imposed a term of
imprisonment of 15 to 50 years.

        Subsequently, defendant filed a motion to withdraw her plea or to correct an invalid
sentence. The motion was denied in full in a written opinion and order. Pertinent to our
analysis, defendant argued in the motion that she was entitled to resentencing, and resentencing
by a different judge, because the prosecution improperly exposed the trial court to polygraph-
examination evidence. The trial court denied the request for resentencing, explaining that “any
reference to the polygrapher’s report was passing and not dispositive.” The trial court also
indicated that it had conducted its own review of the guidelines and performed its own legal
research before the sentencing hearing and that it had made clear at the hearing the basis for each
and every ruling on the guidelines and for the imposed sentence. Defendant’s delayed
application for leave to appeal was granted by this Court. People v Springs, unpublished order of
the Court of Appeals, entered August 24, 2018 (Docket No. 344563). The panel limited the
appeal to the following issue: “Whether defendant is entitled to resentencing before another
judge because the prosecutor improperly exposed the sentencing judge to polygraph information
prior to sentencing[.]” Id.1




1
  We note that the motion panel’s language is a bit ambiguous because it could be construed as
ordering resentencing but leaving open the issue whether the resentencing must take place before
a different judge. We, however, believe that the panel’s intent was for our case call panel to
address both whether there should be resentencing and, if resentencing is ordered, whether a
different judge should impose sentence. We additionally note that issues raised in defendant’s
post-judgment motion and delayed application for leave regarding withdrawal of the plea and
challenges to the scoring variables are outside the scope of the grant of leave to appeal.


                                                -3-
        This Court reviews de novo legal questions, and related factual findings are reviewed for
clear error. People v Wiley, 324 Mich App 130, 165; 919 NW2d 802 (2018). “It is true that,
generally, a court may neither solicit nor consider polygraph-examination results for sentencing,
People v Towns, 69 Mich App 475, 478; 245 NW2d 97 (1976), and the consideration
of polygraph-examination results is generally considered error that requires resentencing, People
v Allen, 49 Mich App 148, 151-152; 211 NW2d 533 (1973).” People v Anderson, 284 Mich App
11, 16; 772 NW2d 792 (2009). Here, the trial court did not solicit polygraph-examination
results. There is no indication in the record that the court played any role in defendant taking the
polygraph examination. Moreover, the record reflected that the trial court did not mention or
consider the results of defendant’s polygraph examination in addressing the sentencing variables
and in imposing sentence. And in ruling on the post-judgment motion, the trial court stated that
the polygraph-examination results were not pertinent to its sentencing decisions, i.e., the results
were not dispositive. The trial court properly relied on information and evidence in the PSIR, as
well as defendant’s testimony at the plea hearing, in assessing the scoring variables and imposing
sentence. See People v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015) (for
purposes of sentencing, “a court may consider all record evidence, including the contents of a
PSIR, plea admissions, and testimony presented at a preliminary examination”).2

       Defendant argues that because she did not introduce or offer the results of the polygraph
examination at sentencing, because a sentencing court sits as a factfinder for purposes of
sentencing, which is a final matter, and because defendant had a due process right to be
sentenced solely on accurate and reliable evidence, resentencing is required where the trial court
was exposed to the results of the polygraph examination. In other words, according to defendant,
resentencing is required if the polygraph examination results are merely revealed to the
sentencing court, even if not taken into consideration or deemed relevant by the court in
sentencing a defendant. In this case, the results of the polygraph examination were attached to
the prosecutor’s sentencing memorandum, and we will presume that the trial court reviewed and
was aware of the results.3 Also, the prosecutor referenced the “polygrapher” at the sentencing
hearing, thereby effectively informing the trial court that a polygraph examination had been
conducted.

      In support of her position, defendant cites this Court’s opinion in People v Newsum, 105
Mich App 755; 307 NW2d 412 (1981). The Court stated and held as follows:




2
  The prosecutor’s reference at sentencing to statements defendant made to the polygraph
examiner and the trial court’s decision not to make a deletion to the PSIR as requested did not
entail or concern the results of the polygraph examination. Also, the prosecutor at one point
mentioned defendant being untruthful and that she would say whatever was necessary to avoid
responsibility. This argument was not necessarily based on the polygraph-examination results,
considering that defendant’s explanations for NS’s injuries were continually changing and were
inconsistent with the physical injuries, thereby suggesting deceit and untruthfulness.
3
    The trial court noted that it had reviewed everything submitted by the parties.


                                                  -4-
               In this case, defendant claims that the only reason he admitted to
       knowledge of and/or participation in approximately 100 larcenies and 20 B & Es
       during the course of a polygraph examination was that he was assured by the
       officer administering the examination that those admissions were confidential and
       would not be made available to the sentencing judge. The officer who gave the
       examination did not recall making any assurances to that effect and stated that he
       would not have done so in any event.

              On the basis of what is before us, we conclude that defendant is entitled to
       be resentenced before another judge and that a new presentence report is to be
       prepared, which report shall not contain any reference to defendant's admissions
       regarding involvement in numerous larcenies and breakings and enterings made
       during the polygraph examination. We cannot say that defendant voluntarily and
       without inducement or assurances and with full awareness of the consequences,
       admitted to committing these crimes. [Id. at 759-760.]

       As reflected in this passage, Newsum is entirely distinguishable from the circumstances
presented in the instant case. There is no evidence suggesting that defendant’s statements and
admissions made to Detective Sargent Scott were involuntary or made with inducements or
assurances.

        We also find Allen easily distinguishable, considering that it involved a defendant who
claimed innocence at his sentencing, that the sentencing court referred to the results of a
polygraph examination of an accomplice who was found to be truthful in implicating the
defendant in the charged crimes, and that the sentencing court asked the defendant if he would be
willing to take a polygraph examination. Allen, 49 Mich App at 149-150. The decision in Allen
to order resentencing has no application to the circumstances presented in this case.

       Defendant also cites People v Liddell, 63 Mich App 491, 493; 234 NW2d 669 (1975), in
which the polygraph examiner testified at a criminal competency hearing that “the defendant
made a truthful, affirmative response to the question of whether he had lied to the judge as to his
memory loss.” This Court ruled:

              Michigan courts have a consistent history of ruling polygraph
       examinations and opinion testimony based thereon to be inadmissible evidence. In
       addition to criminal trials, polygraph evidence has been ruled inadmissible in
       presentence reports, consideration for a motion for a new trial, during sentencing
       proceedings and in civil and administrative proceedings. Considering the
       statements and preparations by the trial court prior to his order for the defendant
       to submit to the examination, and considering the inculpatory results of the test,
       we cannot say that the consideration of the polygraph testimony constituted
       harmless error.

               Polygraph evidence has been held to be erroneous in numerous situations
       in both civil and criminal cases. It would thus be anomalous for us to endorse its
       use in the context of a competency hearing. Consequently, we conclude that error


                                                -5-
         was committed in admitting polygraph evidence at a hearing to determine if the
         defendant was competent to stand trial. [Id. at 494-495 (citations omitted).]

        We have no dispute with the proposition that the prosecution improperly attached the
results of the polygraph examination to its sentencing memorandum.4 But the results were not
admitted into evidence or considered by the trial court at sentencing, nor did the court find them
dispositive when the results were called to the court’s attention in defendant’s post-judgment
motion.

        Assuming that mere exposure to the results of a polygraph examination creates an
unacceptable atmosphere or environment that generally requires resentencing, we cannot
conclude that resentencing is necessary under the particular facts of this case. Defendant pleaded
guilty to first-degree child abuse, and “[a] person is guilty of child abuse in the first degree if the
person knowingly or intentionally causes serious physical or serious mental harm to a child.”
MCL 750.136b(2); see also People v Elder, 104 Mich App 651, 654; 305 NW2d 563 (1981).5
And, aside from the plea hearing, defendant admitted in statements to assisting Mason in tying
NS to her bed, pulling her back and forth, and trying to put NS’s “arm and hip back into place.”
Moreover, at the sentencing hearing, the trial court acknowledged defendant’s claims that Mason
was the abuser, but the court responded that the abuse “happened on [defendant’s] watch” and
that her “failure to protect [her] child” caused the court “great concern.” The court did not
respond by citing Scott’s opinion that defendant had lied during the polygraph examination when
asked whether she physically caused NS’s injuries. The trial court’s decision to sentence
defendant at the top end of the guidelines range was primarily because defendant failed to protect
her child from what can only be characterized as horrific and sustained abuse. In sum,




4
  We do note that, except with respect to privileges, the Michigan Rules of Evidence do not
apply to sentencing hearings. MRE 1101(b)(3).
5
    The Elder panel held:
                 This situation is distinguishable from the cases cited by defendant in
         which the sentencing court improperly relied upon knowledge of a polygraph
         examination which implicated the defendant in criminal activity other than that to
         which the defendant had pled guilty or for which he was on trial. In the instant
         case, the mention of the polygraph examination was only in regard to the current
         charge to which the defendant had already pled guilty. No error occurred. [Elder,
         104 Mich App at 654 (emphasis added).]



                                                 -6-
resentencing is not necessary because the court’s exposure to the polygraph-examination results
was of no consequence and plainly harmless. See People v Lukity, 460 Mich 484, 495-496; 596
NW2d 607 (1999).6

       We affirm.



                                                           /s/ Brock A. Swartzle
                                                           /s/ Jane E. Markey
                                                           /s/ James Robert Redford




6
 Defendant’s associated claim of ineffective assistance of counsel falls outside the scope of the
order granting leave to appeal.


                                               -7-
