                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    December 16, 2014
               Plaintiff-Appellee,

v                                                                   No. 316064
                                                                    Wayne Circuit Court
DEMETRIOUS EDWARD FAULKNER,                                         LC No. 12-006882-FC

               Defendant-Appellant.


Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

        Following a jury trial, defendant, Demetrious Edward Faulkner, was found guilty of two
counts of first-degree criminal sexual conduct (CSC), MCL 750.520b, (accomplices and multiple
variables), and one count of first-degree home invasion, MCL 750.110a(2). Defendant was
sentenced to concurrent terms of 18 to 35 years’ imprisonment for each of his CSC convictions,
to be served consecutively to his term of 10 to 20 years’ imprisonment for his home invasion
conviction. He appeals as of right. We affirm his convictions but remand for resentencing.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        The victim testified that she invited a friend, “Mike,” to her apartment one night and that
she left the door open for him. When Mike arrived, a man she did not know, who was later
identified as defendant, along with another unknown man, came into the apartment as well. The
victim was upset that defendant and the other man were there, so she asked Mike to make them
leave. Mike then went outside to his car. After Mike left, defendant and the other man sexually
assaulted her. The men left and the victim called 911. Thereafter, defendant returned, forced his
way into the apartment, and sexually assaulted the victim again. Officer Michael Sampson
responded to the victim’s earlier telephone call and arrived during the second sexual assault. The
victim told Sampson that the only person she “really knew” was Mike. Sampson reported that
the victim “looked like an emotional wreck, like something terrifying had happened to her.” He
also testified that defendant walked out of the victim’s bedroom with no shirt, no shoes, and with
his pants undone. Sampson interviewed the victim that evening. He testified that the victim’s
statements to him were “erratic,” and that she was “saying different things that happened, trying
to give a story but jumping all around, to different places.” At times, her story changed.
Sampson testified that his report indicated that three men had sexually assaulted the victim.



                                                -1-
       Sergeant Donald Mandell testified that he interviewed both defendant and the victim.
Mandell stated that defendant did not know the victim’s name. Based on Sampson’s report,
Mandell initially believed that three men had sexually assaulted the victim; later, after speaking
with the victim, Mandell did not believe that Mike was involved. Mandell acknowledged that
some of the victim’s statements were inconsistent. He also testified that the victim was “crying”
and “shaking” while she spoke with him.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Defendant first argues that his trial counsel rendered ineffective assistance by failing to
adequately impeach Mandell and the victim. We remanded this case to the trial court for
defendant to develop a record regarding these assertions. People v Faulkner, unpublished order
of the Court of Appeals, entered March 19, 2014 (Docket No. 316064). After an evidentiary
hearing, the trial court held that defendant’s trial counsel was not ineffective and denied
defendant’s motion for a new trial.

        “Whether a person has been denied the effective assistance of counsel is a mixed question
of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
Findings of fact are reviewed for clear error, while determinations of constitutional law are
reviewed de novo. Id.

        The Sixth Amendment to the United States Constitution and Article I, § 20 of the
Michigan Constitution guarantee the right to effective assistance of counsel for criminal
defendants. Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984);
People v Pickens, 446 Mich 298, 338; 521 NW2d 797 (1994). To establish that his counsel did
not render effective assistance and that he is therefore entitled to a new trial, “defendant must
show that (1) counsel’s performance fell below an objective standard of reasonableness and (2)
but for counsel’s deficient performance, there is a reasonable probability that the outcome would
have been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009) (internal quotation
marks and citation omitted).

        Defendant first calls our attention to a supplemental police report written by Mandell that
he alleges shows that defendant knew the victim’s name. The report was written after Mandell
interviewed defendant and refers to the victim by her name. Defendant asserts that his trial
counsel should have used this report to impeach Mandell’s testimony that defendant did not
know the victim’s name. Trial counsel testified on remand that he did not remember whether he
asked Mandell about whether defendant knew the victim’s name. He testified that in a video or
report “[t]here was a reference that [defendant] did not know the complainant’s name.”

        “[D]efendant has the burden of establishing the factual predicate for his claim of
ineffective assistance of counsel[.]” People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). We
find that defendant has not established that the report definitively shows that defendant knew the
victim’s name. The report is not a verbatim transcription of defendant’s statement; rather, it is
Mandell’s written report. Defendant has not negated the possibility that Mandell merely inserted


                                                -2-
the victim’s name into the report without defendant having said it or that Mandell told defendant
the victim’s name.

         Second, defendant draws our attention to a video recording of an interview that Mandell
conducted with the victim. In the video, Mandell asks the victim, “Now, when they do the rape
kit, is [defendant’s] semen the only semen that’s gonna be found?” The victim answers, “Yeah.”
Mandell asks, “You didn’t have any sexual intercourse with nobody else last night?” The victim
answers, “That night, no.” Defendant argues that these statements were contrary to the
testimony given by Mandell and the victim at trial and that the video should have been used to
impeach them. With regard to Mandell, defendant contends that Mandell testified that the
victim’s statements in the interview were consistent with statements she made in a 911 telephone
call, and he argues that the victim’s statements in the interview could have and should have been
used to impeach Mandell’s testimony. Defendant contends that the statements were actually
inconsistent, as the victim stated in the 911 telephone call that three men—defendant, the
unknown individual, and Mike—sexually assaulted her, and she said during the interview that
only defendant sexually assaulted her. With regard to the victim, defendant argues that counsel
was ineffective for failing to impeach her trial testimony—that defendant and the unknown
individual had sexually assaulted her—with her statements from the interview about how only
defendant sexually assaulted her.

        On remand, defendant failed to question trial counsel about why he did not use the video
to impeach the victim or Mandell. Based on our review of the video, we find that it was sound
strategy to forgo presenting it to the jury and that defense counsel was not ineffective as alleged
by defendant. The victim cries throughout the interview. She struggles to recount her story and
is visibly distraught. She also makes several statements that were consistent with her trial
testimony and she was adamant that she did not know defendant. Thus, it was sound trial
strategy not to show the video to the jury. In addition, contrary to defendant’s assertions on
appeal, Mandell did not testify that all of the victim’s statements on the 911 tape were consistent
with her statements during the interview. Rather, he noted that some of her statements were
inconsistent, particularly with regard to whether she was sexually assaulted by all three men.
Mandell noted that, during the recorded interview, the victim only spoke about what happened
when defendant came back the second time. Consequently, trial counsel’s performance was not
objectively unreasonable.

         Furthermore, even assuming trial counsel’s strategy was unsound, defendant cannot show
that he was prejudiced by counsel’s alleged shortcomings. At most, the video could have shown
that the victim presented conflicting stories about how many individuals sexually assaulted her.
Such information was cumulative to testimony that had already been admitted. Sampson
testified that the victim reported that all three men had sexually assaulted her; this was
inconsistent with the victim’s testimony at trial. Defense counsel adequately explored this
discrepancy through cross-examination. In addition, Sampson testified that the victim’s initial
statements about the assaults were “erratic,” that she was “saying different things,” and that the
victim gave “bits and pieces” of information, jumping “between the three males that had entered
the location, going from one male to another male[.]” Overall, Sampson opined that the victim’s
initial statements were “[j]ust everywhere.” Thus, there was already information before the jury
that the victim made conflicting reports about how many individuals sexually assaulted her. See
People v Carbin, 463 Mich 590, 604-605; 623 NW2d 884 (2001) (explaining that where

                                                -3-
evidence was “for the most part, cumulative[,]” there was not a reasonable probability that, but
for counsel’s allegedly deficient performance, the result of the proceeding would not have been
different). And, we note that all of the victim’s statements, including her statements in the
recorded interview, contained one constant theme: that defendant sexually assaulted her.
Therefore, defendant cannot prevail on his ineffective assistance of counsel claim.1

                                       III. OV 11, 12, 13

       Defendant next argues that Offense Variables (OVs) 11, 12, and 13 were scored
incorrectly. The trial court scored OV 11 at 25 points, it did not score OV 12, and it scored OV
13 at 25 points. The trial court calculated defendant’s total OV score at 75 points. With an OV
score of 75 (Level IV), and a prior record variable (PRV) score of 52 (Level E), defendant’s
recommended minimum guidelines range for the Class A offense of first-degree CSC, MCL
777.16y, was 135 to 225 months’ imprisonment, MCL 777.62. Defendant contends that the trial
court should have scored either OV 11 or OV 13 at 25 points, but not both, and that it should
have scored OV 12 at 5 points. Thus, according to defendant’s calculations, his OV score should
have been 55 points, not 75 points. An OV score of 55 points would drop defendant from OV
Level IV to OV Level III, which combined with a PRV Level E, would produce, for the Class A
offense of first-degree CSC, a recommended minimum guidelines range of 126 to 210 months’
imprisonment. See MCL 777.62. According to defendant, his minimum sentence of 18 years—
216 months—would be outside of that range and would therefore be impermissible, absent a
departure for substantial and compelling reasons.

       The sentencing transcript does not contain an explanation for the trial court’s scoring
decision with regard to OVs 11 and 12. Concerning its scoring decision on OV 13, the trial court
explained:

               The reason why I came with that is that, he was charged with aiding and
       abetting, with the so-called accomplice, who did the sexual act, and then he was—
       he had two himself, that he was charged with.

              So, I think that that would support that. The offense was part of a pattern
       of—in other words, although he had—the facts how, initially, when the—at least
       the two of them, or three, however many there was, that he aided and abetted that,
       and then he did it himself. And then he came back and he did, he raped her again.

               So, that’s three offenses. That’s where I came with that.

      The resolution of this issue revolves around the relationship between OVs 11, 12, and 13.
This Court has stated that the interplay of these variables, “strongly suggest[s] that the

1
  To the extent defendant argues that the trial court abused its discretion when it denied his
motion for a new trial, we find that, given our conclusion that defendant’s ineffective assistance
of counsel claim was meritless, the trial court’s denial of defendant’s motion did not constitute
an abuse of discretion. See People v Russell, 297 Mich App 707, 715; 825 NW2d 623 (2012).


                                               -4-
Legislature intended trial courts to first score criminal acts under OV 11, then under OV 12, and
finally under OV 13.” People v Bemer, 286 Mich App 26, 35 n 5; 777 NW2d 464 (2009).

                                            A. OV 11

       MCL 777.41 provides:

       (1) Offense variable 11 is criminal sexual penetration. Score offense variable 11
       by determining which of the following apply and by assigning the number of
       points attributable to the one that has the highest number of points:

       (a) two or more criminal sexual penetrations occurred ……………………… 50

       (b) one criminal sexual penetration occurred ………………………………… 25

       (c) no criminal sexual penetration occurred …………………………………… 0

       (2) All of the following apply to scoring offense variable 11:

       (a) Score all sexual penetrations of the victim by the offender arising out of the
       sentencing offense.

       (b) Multiple sexual penetrations of the victim by the offender extending beyond
       the sentencing offense may be scored in offense variables 12 or 13.

       (c) Do not score points for the 1 penetration that forms the basis of a first- or
       third-degree criminal sexual conduct offense.

         The trial court did not err in assessing 25 points under OV 11. In this case the sentencing
offense was defendant’s first-degree CSC conviction (accomplices), i.e., his conviction for
penetrating the victim while the unknown assailant held the victim. Defendant argues that MCL
777.41(2)(c) prohibited the trial court from taking into account his subsequent sexual penetration
of the victim, since that penetration formed the basis of his other first-degree CSC conviction.
However, this Court rejected that argument in People v McLaughlin, 258 Mich App 635, 676;
672 NW2d 860 (2003). In that case, this Court, after extended analysis of MCL 777.41, held:
“trial courts are prohibited from assigning points for the one penetration that forms the basis of a
first-or third-degree CSC offense that constitutes the sentencing offense, but are directed to score
points for penetrations that did not form the basis of the sentencing offense.” Id. Following this
rule in the present case, the trial court was not precluded from assessing 25 points for the
penetration that occurred when defendant returned to the victim’s apartment after the first
assault.

        Nonetheless, for that penetration to be assessed under OV 11, it must have “aris[en] out
of the sentencing offense.” MCL 777.41(2)(a). Defendant argues that the two penetrations
“occurred during two separate incidents that were different in time and character . . . .”
“[A]rising out of,” as used in MCL 777.41(2)(a), means “ ‘springs from or results from
something else, has a connective relationship, a cause and effect relationship, of more than an
incidental sort with the event out of which it has arisen.’ ” People v Johnson, 298 Mich App
                                                -5-
128, 132; 826 NW2d 170 (2012), quoting People v Johnson, 474 Mich 96, 101; 712 NW2d 703
(2006). “[T]his standard requires more than the mere fact that the penetrations involved the
same defendant and victim.” Johnson, 298 Mich App at 132.

        In the present case, the trial court did not clearly err in determining that defendant’s
second penetration arose out of the first. The first sexual assault had “a cause and effect
relationship, of more than an incidental sort” with the second sexual assault. See Johnson, 474
Mich at 101. Defendant, who did not have a preexisting relationship with the victim, came over
to her apartment, uninvited, and sexually assaulted her. Shortly thereafter, defendant returned,
forced his way into the victim’s apartment, and sexually assaulted her once again. These assaults
were more than merely incidentally related, as they occurred in the same place, on the same
night, and under similar circumstances. See Johnson, 474 Mich at 100. The trial court did not
err by scoring 25 points under OV 11.

                                           B. OV 12

       MCL 777.42 provides:

       (1) Offense variable 12 is contemporaneous felonious criminal acts. Score
       offense variable 12 by determining which of the following apply and by assigning
       the number of points attributable to the one that has the highest number of points:

       (a) three or more contemporaneous felonious criminal acts involving crimes
       against a person were committed ……………………………………………..... 25

       (b) two contemporaneous felonious criminal acts involving crimes against a
       person were committed ………………………………………………………… 10

       (c) three or more contemporaneous felonious criminal acts involving other crimes
       were committed ………………………………………………………………… 10

       (d) one contemporaneous felonious criminal act involving a crime against a
       person was committed ………………………………………………………...…. 5

       (e) two contemporaneous felonious criminal acts involving other crimes were
       committed ……………………………………………………………………….. 5

       (f) one contemporaneous felonious criminal act involving any other crime was
       committed ……………………………………………………………………….. 1

       (g) no contemporaneous felonious criminal acts were committed …………….... 0

       (2) All of the following apply to scoring offense variable 12:

       (a) A felonious criminal act is contemporaneous if both of the following
       circumstances exist:

       (i) The act occurred within 24 hours of the sentencing offense.

                                               -6-
       (ii) The act has not and will not result in a separate conviction.

       (b) A violation of section 227b of the Michigan penal code, 1931 PA 328, MCL
       750.227b, should not be considered for scoring this variable.

       (c) Do not score conduct scored in offense variable 11.

        Defendant argues that the trial court should have assessed five points under this variable
based on his aiding and abetting of the unknown accomplice and that such a score should have
precluded the trial court from scoring the same conduct under OV 13. The prosecutor agrees that
the trial court should have scored points under OV 12 rather than OV 13, but disagrees on the
number of points. The prosecutor asserts that OV 12 should have been scored at ten points,
contending that there were two contemporaneous felonious acts that have not and will not result
in separate convictions. The prosecutor argues that the two contemporaneous felonies acts were:
(1) defendant’s aiding and abetting the unknown individual in sexually assaulting the victim; and
(2) engaging in a separate assault with intent to commit sexual penetration in the form of oral
sex.

         We agree with defendant that OV 12 should have been scored at five points. At the
outset, it is clear that the trial court was not permitted to assess points under this variable for
defendant’s convictions. MCL 777.42(2)(a)(ii). The only other contemporaneous felonious act
that is supported by a preponderance of the evidence was defendant’s aiding and abetting of the
unknown accomplice in sexually assaulting the victim. The conduct occurred within 24 hours of
the assault, MCL 777.42(2)(a)(i), has not resulted in a separate conviction, and there is no
indication to suggest that it will result in a separate conviction, MCL 777.42(2)(a)(ii).

        Contrary to the prosecution’s assertions, neither the victim’s testimony nor the PSIR
support by a preponderance of the evidence the prosecution’s contention that defendant
attempted to engage in oral sex with the victim. The record evidence does not sufficiently
support such a finding. Accordingly, defendant should have been assessed five points under OV
12 for aiding and abetting the unknown individual.

       Rather than scoring the aiding and abetting conduct under OV 12, the trial court scored it
under OV 13. The trial court erred by doing so. “The sentencing guidelines are a
comprehensive and integrated statutory scheme designed to promote uniformity and fairness in
sentencing.” Bemer, 286 Mich App at 34. “For that reason, the individual sentencing variables
cannot be read in isolation, but instead must be read as a harmonious whole.” Id. at 34-35. OV
13 directs the trial court to score points for a “continuing pattern of criminal behavior.” MCL
777.43(1). Significantly, the offense variable permits a score of 25 points where “[t]he offense
was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.”
MCL 777.43(1). “Typically, there is nothing to preclude a particular factor—in this case,
criminal conduct—from serving as the basis underlying the scoring of multiple variables.”
Bemer, 286 Mich App at 35. However, MCL 777.43 contains an express provision prohibiting
criminal conduct that was already scored under OV 11 or 12 from being scored under OV 13.
The offense variable limits the felonious criminal activity that may be scored by expressly
precluding “conduct scored in offense variable 11 or 12” that is not related to membership in an
organized criminal group or that are gang-related. MCL 777.43(2)(c). This provision, construed

                                                -7-
in context of the requirements that OV 12 is to be scored before OV 13 and that the trial court
cannot, when scoring OV 13, “consider any conduct that was or should have been scored under”
OV 12, Bemer, 286 Mich App at 35, required the trial court in this case to score defendant’s
uncharged act of aiding and abetting the unknown assailant under OV 12, not under OV 13.
Therefore, defendant correctly recognizes that his conduct of aiding and abetting the unknown
assailant should have been scored under OV 12, and not under OV 13. As such, the trial court
erred in relying on this conduct in scoring OV 13, and the court’s scoring decision with regard to
OV 13 can only be upheld if, absent defendant’s conduct of aiding and abetting the unknown
assailant, there are three or more felonious acts involving crimes against a person. As discussed
below, there are not three such acts in this case.

                                            C. OV 13

       MCL 777.43 provides:

       (1) Offense variable 13 is continuing pattern of criminal behavior. Score offense
       variable 13 by determining which of the following apply and by assigning the
       number of points attributable to the one that has the highest number of points:

       (a) the offense was part of a pattern of felonious criminal activity involving three
       or more sexual penetrations against a person or persons less than thirteen years of
       age ……………………………………………………………………………… 50

       (b) the offense was part of a pattern of felonious criminal activity directly related
       to causing, encouraging, recruiting, soliciting, or coercing membership in a gang
       or communicating a threat with intent to deter, punish, or retaliate against another
       for withdrawing from a gang ………………………………………………...… 25

       (c) the offense was part of a pattern of felonious criminal activity involving three
       or more crimes against a person ………………………………………………... 25

       (d) the offense was part of a pattern of felonious criminal activity involving a
       combination of three or more crimes against a person or property or a violation of
       MCL 333.7401(2)(a)(i)-(iii) or MCL 333.7403(2)(a)(i)-(iii) …………..……… 10

       (e) the offense was part of a pattern of felonious criminal activity involving a
       combination of three or more violations of MCL 333.7401(2)(a)(i)-(iii) or MCL
       333.7403(2)(a)(i)-(iii) ………………………………………………………….. 10

       (f) the offense was part of a pattern of felonious criminal activity involving three
       or more crimes against property …………………………………………..…….. 5

       (g) no pattern of felonious criminal activity existed …………………..………… 0

       (2) All of the following apply to scoring offense variable 13:




                                               -8-
       (a) For determining the appropriate points under this variable, all crimes within a
       5-year period, including the sentencing offense, shall be counted regardless of
       whether the offense resulted in a conviction.

       (b) The presence or absence of multiple offenders, the age of the offenders, or the
       degree of sophistication of the organized criminal group is not as important as the
       fact of the group’s existence, which may be reasonably inferred from the facts
       surrounding the sentencing offense.

       (c) Except for offenses related to membership in an organized criminal group or
       that are gang-related, do not score conduct scored in offense variable 11 or 12.

       (d) Score 50 points only if the sentencing offense is first degree criminal sexual
       conduct.

       (e) Do not count more than 1 controlled substance offense arising out of the
       criminal episode for which the person is being sentenced.

       (f) Do not count more than 1 crime involving the same controlled substance. For
       example, do not count conspiracy and a substantive offense involving the same
       amount of controlled substances or possession and delivery of the same amount of
       controlled substances.

         The prosecution concedes that the trial court erred in assessing 25 points under OV 13,
and we agree. Under MCL 777.43(2)(c), the trial court was not permitted to take into account
defendant’s second CSC conviction, since it was assessed in OV 11, and it was not permitted to
take into account defendant’s aiding and abetting of the unknown accomplice, since it was
assessed in OV 12. The only remaining felonious activity was the sentencing offense and the
home invasion. Defendant’s presentence investigation report does not contain any other offenses
against a person that could be scored under MCL 777.43(1)(c). With only two assessable crimes,
the trial court’s decision to score 25 points pursuant to MCL 777.43(1)(c) was erroneous.

        With 5 points assessed under OV 12 and without 25 points assessed under OV 13,
defendant’s OV Level would have decreased from 75 points to 55 points, dropping defendant
from OV Level IV to OV Level III. See MCL 7776.62. His minimum sentence range would
therefore have been 126 to 210 months rather than 135 to 225 months, MCL 777.62, and the
minimum sentence imposed by the trial court—216 months—is outside of the appropriate range.
Because defendant’s recommended minimum guidelines range would have changed, he is
entitled to resentencing on his first-degree CSC offense. People v Francisco, 474 Mich 82, 89-
90; 711 NW2d 44 (2006).

                             IV. ASSERTION OF INNOCENCE

       Finally, defendant argues that the trial court erroneously relied on his assertion of
innocence at sentencing to impose consecutive sentences. This Court reviews a trial court’s
decision to impose consecutive sentences for an abuse of discretion. People v St John, 230 Mich
App 644, 646; 585 NW2d 849 (1998). “A trial court abuses its discretion when it chooses an

                                               -9-
outcome that is outside the range of reasonable and principled outcomes.” People v Orr, 275
Mich App 587, 588-589; 739 NW2d 385 (2007).

       “In Michigan, concurrent sentencing is the norm, and a court may impose consecutive
sentences only if authorized by statute.” St John, 230 Mich App at 646. MCL 750.110a(8)
provides, “The court may order a term of imprisonment imposed for home invasion in the first
degree to be served consecutively to any term of imprisonment imposed for any other criminal
offense arising from the same transaction.”

       At sentencing, the trial court asked defendant, “Anything you want to say?”             The
following colloquy then took place:

              Defendant. Yes, I feel like I was wrong, wrongfully convicted of this, you
       know, these allegations off of false statements, and you know, lies.
              And—

               The court. So, you continue to say that this lady agreed for you and your
       friend to come in and rape her?
               Okay.
               You have the right to say what you need to say, sir.
               Okay.

               Defendant. I, I just feel like I was wrongfully convicted, you know.
               I feel like off [sic] the inconsistencies that were stated, you know, I don’t
       feel that it was, it was right.

              The court. Well, that’s your opinion, sir.
              But I watched that lady on the witness stand, and all of the circumstances
       that were here, and I have no doubt in my mind about this.
              Why would she have you and your friends come in and, and rape her, and
       then you come back in and do it again?
              Okay?
              I’m not gonna go through any kind of discussion or discourse about that.
              That’s the way you feel, and you have a right to appeal your conviction to
       a higher Court.
              Anything more you want to say, sir?

              Defendant. No.

       When the trial court later imposed its sentence, it stated that it was going to make
defendant’s first-degree CSC sentences concurrent to each other, but consecutive to the first-
degree home invasion conviction:

               I may have thought about this differently, until I was listening, you know,
       to him, there still standing there, talking about he was wrongly convicted, and this
       was all consensual, and all of those kind of things.

              And I think that he is a true danger to society.

                                               -10-
               He’s on, he’s on parole. He didn’t respect that.

               And then go and commit these crimes.

               For home invasion, I will sentence the defendant to a minimum of ten
       years, and a maximum of twenty years.

               For each of the sexual assault cases, I’m gonna sentence him a minimum
       of eighteen years, and a maximum of thirty-five years.

               And that is to be consecutive to the home invasion, as is allowed by law.

        “A sentencing court cannot base a sentence even in part on a defendant’s refusal to admit
guilt.” People v Dobek, 274 Mich App 58, 104; 732 NW2d 546 (2007). However, the trial court
is not precluded from considering the defendant’s lack of remorse, which “can be considered in
determining an individual’s potential for rehabilitation.” Id. “To determine whether sentencing
was improperly influenced by the defendant’s failure to admit guilt, this Court focuses on three
factors: ‘(1) the defendant’s maintenance of innocence after conviction; (2) the judge’s attempt
to get the defendant to admit guilt; and (3) the appearance that had the defendant affirmatively
admitted guilt, his sentence would not have been so severe.’ ” Id., quoting People v Wesley, 428
Mich 708, 713; 411 NW2d 159 (1987). “ ‘[I]f there is an indication of the three factors, then the
sentence was likely to have been improperly influenced by the defendant’s persistence in his
innocence.’ ” Dobek, 274 Mich App at 104, quoting Wesley, 428 Mich at 713 (alteration in
original). “Resentencing is required only if it is apparent that the court erroneously considered
the defendant’s failure to admit guilt, as indicated by action such as asking the defendant to
admit his guilt or offering him a lesser sentence if he did.” People v Spanke, 254 Mich App 642,
650; 658 NW2d 504 (2003).

        Applying the three factors, first, it does not appear that defendant unequivocally
maintained his innocence. Rather, he stated that he believed that he was “wrongfully convicted”
because of “these allegations off of false statements, and, you know, lies[,]” and the
“inconsistencies.” Defendant did not claim that he was innocent, but rather criticized the quality
of the evidence against him. Nonetheless, the trial court clearly interpreted these statements as
defendant implying that the sexual intercourse between defendant and the victim was consensual,
and that defendant was therefore maintaining his innocence.

        Regarding the second factor, it does not appear that the trial court encouraged defendant
to admit guilt. Rather than encouraging defendant to confess his guilt, the trial court informed
defendant, after appearing astonished at defendant’s assertion that he had been wrongfully
convicted, that “[y]ou have the right to say what you need to say, sir.” The trial court expressed
surprise at defendant’s remarks, but did not press defendant for an admission of guilt, instead
informing defendant, “I’m not gonna go through any kind of discussion or discourse about”
defendant’s belief that he was wrongfully convicted. Further, even after stating that it believed
the victim’s testimony, the trial court did not press defendant for an admission, instead stating,
“[t]hat’s the way you feel, and you have a right to appeal your conviction to a higher court.”
Instead of encouraging defendant to admit his guilt, the trial court simply appears to have been



                                               -11-
incredulous that defendant was, in its view, maintaining his innocence in the face of the evidence
at trial.

        As to the third factor, it does not appear to us that if defendant had admitted his guilt, the
trial court would have imposed a lighter sentence. The trial court seemed taken aback at what it
perceived to be defendant’s assertion of innocence. However, there is no undeniable link
between defendant’s statements at sentencing and the trial court’s sentence, including its
decision to impose consecutive sentences under MCL 750.110a(8). For example, the trial court
did not say that it was imposing consecutive sentences because of defendant’s statements at
sentencing. In addition, the trial court appeared to be concerned with other factors, such as
defendant’s lack of remorse. The court also expressed worry that defendant would be a
continued threat to society. And, the trial court referenced the fact that defendant had committed
the instant offense while on parole, and that defendant “didn’t respect” his parole. As stated
above, “[r]esentencing is required only if it is apparent that the court erroneously considered the
defendant’s failure to admit guilt, as indicated by action such as asking the defendant to admit
his guilt or offering him a lesser sentence if he did.” Spanke, 254 Mich App at 650. Upon our
review, it is not apparent that defendant’s failure to admit guilt influenced the trial court. Rather,
it is more apparent that the trial court was concerned with defendant’s lack of remorse, his lack
of respect for the conditions of parole, and its conclusion that, in light of all of the factors,
defendant presented a danger to society. These considerations were proper. See id. (explaining
that a “sentencing court may consider evidence of a lack of remorse . . . .”).

                                        IV. CONCLUSION

       We affirm defendant convictions and remand for resentencing consistent with this
opinion. We do not retain jurisdiction.



                                                              /s/ Michael J. Riordan
                                                              /s/ Jane M. Beckering
                                                              /s/ Mark T. Boonstra




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