Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  April 21, 2017                                                                                       Stephen J. Markman,
                                                                                                                 Chief Justice

  154266                                                                                                    Brian K. Zahra
                                                                                                    Bridget M. McCormack
                                                                                                          David F. Viviano
                                                                                                      Richard H. Bernstein
                                                                                                            Joan L. Larsen,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                                    Justices
            Plaintiff-Appellee,
  v                                                                 SC: 154266
                                                                    COA: 332650
                                                                    Antrim CC: 2015-004703-FC
  DAVID ANTHONY ZOULEK,
           Defendant-Appellant.

  _________________________________________/

          On order of the Court, the application for leave to appeal the June 24, 2016 order
  of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
  that the questions presented should be reviewed by this Court.

         MARKMAN, C.J. (dissenting).

         A defendant is assessed points for Offense Variable 11 if he or she: (a) commits
  one or more sexual penetrations in addition to the sexual penetration that “forms the basis
  of” the sentencing offense and (b) the additional penetration also “aris[es] out of the
  sentencing offense.” MCL 777.41. There must be a “connective relationship, a cause
  and effect relationship, of more than an incidental sort” between the additional
  penetration and the sentencing offense. People v Johnson, 474 Mich 96, 101 (2006).
  Here, while the victim testified that she had been sexually penetrated on multiple
  occasions, there was no evidence that any of these arose out of the sentencing offense.
  Because trial counsel clearly rendered ineffective assistance when he incorrectly
  informed the court that a score of 50 points (rather than 0 points) was proper based on the
  victim’s testimony and appellate counsel was also ineffective for failing to raise this
  obvious error in the Court of Appeals, I would remand for resentencing. People v
  Francisco, 474 Mich 82 (2006).




                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           April 21, 2017
           t0418
                                                                               Clerk
