                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      FOR PUBLICATION
                                                                      August 25, 2015
               Plaintiff-Appellee,                                    9:10 a.m.

v                                                                     No. 318128
                                                                      Clinton Circuit Court
JACKIE LAMONT THOMPSON,                                               LC No. 13-009068-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ.

MURPHY, J.

       Defendant pled no contest to one count of first-degree criminal sexual conduct (CSC I),
MCL 750.520b(1)(b)(ii) (sexual penetration and victim at least 13 but less than 16 years of age
and related to the defendant). He was sentenced to a prison term of 15 to 40 years. Defendant
appeals his sentence, challenging the scoring of offense variable (OV) 7, MCL 777.37. We
reverse and remand for resentencing.

        Defendant pleaded no contest to an act of digital-vaginal penetration involving his
stepdaughter. At defendant’s plea hearing, the court indicated that it would rely on the police
report in support of the factual basis for the no-contest plea. The police report reflected that the
victim was 13 years old at the time the report was prepared and that, according to the victim,
defendant had been sexually abusing her at least twice a week for the last couple of years. The
police report further provided that the victim had described multiple instances of digital-vaginal
penetration, anal intercourse, and various acts of sexual contact.1 In the police report, and in an
attached written statement by the victim, reference was made to an incident in which defendant
put a BB gun to the victim’s head and threatened to kill her if she did not perform a sexual act.
The police report also alluded to instances in which defendant pulled the victim’s hair, struck her
buttocks, threatened her life if she said anything about the sexual abuse, and hit her with a belt
buckle, resulting in bruises on numerous occasions. In the victim’s statement, she asserted that
defendant had threatened her life “many times.” Medical documents attached to the police report


1
  The police report included a section regarding defendant’s interview by police. The report
stated, “Then in further talking to [defendant] and getting further signs of deception, . . . [h]e did
admit that he did touch [the victim’s] vaginal area and that his right hand middle finger did go
inside her vagina . . . .”

                                                 -1-
indicated that defendant once bit the victim on one of her breasts, leaving a scar. The police
report noted that the last incident of sexual abuse occurred on February 24, 2013. Defendant
pled no contest specifically with respect to the sexual assault that occurred on February 24, 2013,
and not in regard to any of the prior sexual abuse.2

        At defendant’s sentencing, the prosecutor argued that OV 7 should be assessed at 50
points, which is the proper score when “[a] victim was treated with sadism, torture, or excessive
brutality or conduct designed to substantially increase the fear and anxiety a victim suffered
during the offense.”3 MCL 777.37(1)(a). The only other potential score for OV 7 is zero points.
MCL 777.37(1)(b). Defendant argued that a score of zero points was proper, given that
defendant’s conduct did not rise to the level that would justify a score of 50 points. The trial
court, which now had the benefit of the presentence investigation report (PSIR) that essentially
echoed the police report and the information discussed above, assessed 50 points for OV 7,
ruling:

               [T]he Court takes note that the victim chronicled for the Clinton County
       Sheriff’s Office the duration of the sexual abuse that . . . she suffered at the hands
       of the Defendant, which does include the scar to her breast, as well as anal
       intercourse, putting a B-B gun to her head, pulling her hair, threatening her life if
       she said anything, and that he had spanked her with a belt that left marks on her in
       the past. Those items the Court is satisfied constitute sadism as defined in the
       instructions to OV 7 . . . .

        The parties also argued over the scoring of other OVs that are not relevant to this appeal,
including OV 13, MCL 777.43 (continuing pattern of criminal behavior). The minimum
sentence guidelines range was ultimately set at 108 to 180 months. See MCL 777.62. The trial
court imposed a minimum sentence at the very top end of the guidelines range, 180 months (15
years), with the maximum sentence being set at 40 years’ imprisonment. Defendant filed a
delayed application for leave to appeal, challenging the scoring of OV 7 and OV 13. Defendant
argued that OV 7 was improperly assessed at 50 points, given that the trial court considered
conduct related to past sexual abuse, instead of limiting its examination to conduct directly
pertaining to the sexual assault on February 24, 2013, which was the sentencing offense. This
Court denied the application, People v Thompson, unpublished order of the Court of Appeals,
entered December 3, 2013 (Docket No. 318128), and defendant then filed an application for
leave to appeal with the Michigan Supreme Court. Our Supreme Court denied the application
with respect to defendant’s arguments concerning OV 13, but in regard to OV 7, the Court ruled:


2
  We note that the victim was 13 years old on February 24, 2013, having turned 13 in December
2012. During most of the period in which the sexual abuse allegedly occurred, she was under the
age of 13, and had defendant been convicted of CSC I as to an act of penetration taking place
when the victim was less than 13 years old, defendant would have faced a mandatory minimum
sentence of 25 years’ imprisonment. See MCL 750.520b(2)(b).
3
 “Sadism” is statutorily defined as “conduct that subjects a victim to extreme or prolonged pain
or humiliation and is inflicted to produce suffering or for the offender’s gratification.” MCL
777.37(3).

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               Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we
       remand this case to the Court of Appeals for consideration, as on leave granted, of
       whether the conduct of the defendant with the victim prior to the commission of
       the sentencing offense may be considered when scoring Offense Variable 7, and if
       so, what evidence may support that scoring. MCL 777.37; People v McGraw, 484
       Mich 120[; 771 NW2d 655] (2009). [People v Thompson, 497 Mich 945; 857
       NW2d 21 (2014).]

        Under the sentencing guidelines, a trial court’s findings of fact 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); People v Rhodes (On Remand), 305 Mich App 85, 88; 849
NW2d 417 (2014). “ ‘Clear error is present when the reviewing court is left with a definite and
firm conviction that an error occurred.’ ” People v Fawaz, 299 Mich App 55, 60; 829 NW2d
259 (2012) (citation omitted). This Court reviews de novo “[w]hether the facts, as found, are
adequate to satisfy the scoring conditions prescribed by statute . . . .” Hardy, 494 Mich at 438;
see also Rhodes, 305 Mich App at 88. When calculating the sentencing guidelines, a court may
consider all record evidence, including the contents of a PSIR. People v Johnson, 298 Mich App
128, 131; 826 NW2d 170 (2012).4

      In the remand order, the Supreme Court directed our attention to its decision in McGraw,
484 Mich 120, wherein the Court stated and held:



4
  We note that, if the appropriate score for OV 7 is zero points, the guidelines range would be 81
to 135 months. MCL 777.62. Defendant was given a minimum sentence of 180 months. When
a defendant properly preserves a claim that a scoring error was made, and if a guidelines range is
altered in any way because a scoring error was actually made by the sentencing court, remand for
resentencing is ordinarily required, even when the minimum sentence falls within the altered
guidelines range. People v Francisco, 474 Mich 82, 89-91; 711 NW2d 44 (2006). Here, while
defendant challenged the trial court’s scoring of OV 7, he did not challenge the assessment of 50
points on the ground that he now raises on appeal for the first time, so his current argument was
not properly preserved. People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004). However,
because, as held and explained below, the appropriate guidelines range is indeed 81 to 135
months, and because the 180-month minimum sentence actually imposed falls entirely outside of
that range, defendant is permitted to seek appellate relief despite the lack of preservation. Id. at
312 (“Because defendant’s sentence is outside the appropriate guidelines sentence range, his
sentence is appealable under § 34[10], even though his attorney failed to raise the precise issue at
sentencing, in a motion for resentencing, or in a motion to remand.”). The Kimble Court
explained that the plain-error test still had to be applied, but it easily found plain error that
prejudiced the defendant and seriously affected the fairness, integrity, and public reputation of
the judicial proceedings. Id. at 312-313. The Court stated that “[i]t is difficult to imagine what
could affect the fairness, integrity and public reputation of judicial proceedings more than
sending an individual to prison and depriving him of his liberty for a period longer than
authorized by the law.” Id. at 313. Here, considering that the 180-month minimum sentence is
nearly four years longer than the top end of the appropriate guidelines range, i.e., the sentencing
period authorized by law, the plain-error test is satisfied.

                                                -3-
               This case involves further analysis of the issue presented in People v
       Sargent[, 481 Mich 346; 750 NW2d 161 (2008)]. There we held that offense
       variable (OV) 9 [number of victims] in the sentencing guidelines cannot be scored
       using uncharged acts that did not occur during the same criminal transaction as
       the sentencing offense. Today we decide whether the offense variables should be
       scored solely on the basis of conduct occurring during the sentencing offense or
       also using conduct occurring afterward.

               We hold that a defendant's conduct after an offense is completed does not
       relate back to the sentencing offense for purposes of scoring offense variables
       unless a variable specifically instructs otherwise. Therefore, in this case,
       defendant's flight from the police after breaking and entering a building was not a
       permissible basis for scoring OV 9. Accordingly, we reverse the judgment of the
       Court of Appeals and remand this case to the circuit court for resentencing.
       [McGraw, 484 Mich at 121-122 (citations omitted).]

        In McGraw, the defendant had pleaded guilty to multiple counts of breaking and entering
a building in exchange for the dismissal of other charges, including fleeing and eluding police
officers. Id. at 122-123. As part of the Court’s reasoning in support of its holding, it observed:

               We conclude that the Court of Appeals erred by considering the entire
       criminal transaction and using defendant's conduct after the crime was completed
       as the basis for scoring OV 9. Offense variables must be scored giving
       consideration to the sentencing offense alone, unless otherwise provided in the
       particular variable. OV 9 does not provide for consideration of conduct after
       completion of the sentencing offense. Therefore, it must be scored in this case
       solely on the basis of defendant's conduct during the breaking and entering. If the
       prosecution had wanted defendant to be punished for fleeing and eluding, it
       should not have dismissed the fleeing and eluding charge. It would be
       fundamentally unfair to allow the prosecution to drop the fleeing and eluding
       charge while brokering a plea bargain, then resurrect it at sentencing in another
       form. [Id. at 133-134 (citation omitted).]

        At the conclusion of its opinion, the McGraw Court reiterated that “[o]ffense variables
are properly scored by reference only to the sentencing offense except when the language of a
particular offense variable statute specifically provides otherwise.” Id. at 135.

       Once again, MCL 777.37(1)(a) calls for a score of 50 points when “[a] victim was treated
with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear
and anxiety a victim suffered during the offense.” (Emphasis added.) Defendant seizes on the
language “during the offense” in arguing that a court can only take into consideration conduct
occurring during the sentencing offense for purposes of scoring OV 7. It does appear that the
“during the offense” language found in OV 7 modifies all of the preceding language in MCL
777.37(1)(a), thereby requiring us to focus solely on conduct occurring during the CSC I




                                                -4-
offense.5 Regardless, even if OV 7 did not contain language that expressly limits consideration
to conduct occurring during the sentencing offense in relationship to sadism, OV 7 certainly does
not specifically provide that a sentencing court can look outside the sentencing offense to past
criminal conduct in scoring OV 7. Therefore, under McGraw and Sargent, the trial court here
was only permitted to consider conduct occurring during the criminal offense on February 24,
2013, for purposes of scoring OV 7.

        It is clear that the trial court assessed 50 points for OV 7 upon contemplation of conduct
engaged in by defendant throughout the two-year course of the sexual abuse, instead of confining
its examination to conduct occurring during the sexual assault on February 24, 2013, which was
the only criminal offense to which defendant pled no contest. Defendant’s conduct that allegedly
took place before the sexual assault on February 24, 2013, regardless of its deplorability, did not
relate forward to the sentencing offense; the prosecution, in brokering the plea bargain, had
chosen to dismiss charges related to the alleged numerous criminal offenses of sexual assault
occurring before February 24, 2013. The record is such that it is impossible to discern whether
one or more, or none, of the horrific acts relied on by the trial court in scoring OV 7 predicated
on sadism took place on February 24, 2013. Thus, we cannot conclude that a preponderance of
the evidence supported the 50-point score.

        We find it necessary to respond to some of the criticisms voiced by the dissent. The
central theme of the dissent is that the Supreme Court in McGraw and Sargent rejected a narrow
approach that would only allow contemplation of conduct occurring during the sentencing
offense in the scoring of a variable, instead opting in favor of a broader approach allowing
consideration of conduct simply “relating” or “pertaining” to the sentencing offense, which
would not necessarily preclude, despite chronological distinctions, examining prior conduct or
offenses. In McGraw, 484 Mich at 124, the Court noted that the defendant was arguing for an
approach in which “only conduct occurring during the offense of which the defendant was
convicted may be considered.” On the other hand, the prosecution argued that a transactional
approach should be used, examining “a continuum of the defendant’s conduct . . ., which can
extend far beyond the acts that satisfy the elements of the sentencing offense.” Id. The McGraw
Court then observed that in Sargent, “[w]e stated that usually ‘only conduct relating to the
offense may be taken into consideration when scoring the offense variables.’ ” McGraw, 484
Mich at 124, quoting Sargent, 481 Mich at 349 (quotation marks omitted). The dissent here
emphasizes this language, treating it as a rejection of the McGraw defendant’s argument that
only conduct occurring during the sentencing offense may be considered. The fact is, however,
that the Court was agreeing with the defendant’s position and rejecting the prosecutor’s
transactional-approach argument. It is abundantly clear that, when read in context, the Supreme
Court’s reference to conduct “relating” to the sentencing offense meant that consideration was



5
 We note that the trial court assessed 50 points for OV 7 solely on the basis of sadistic behavior,
not on the basis of torture or that defendant’s conduct was designed to substantially increase the
victim’s fear and anxiety. It would not be appropriate for this Court to consider whether
defendant’s conduct was designed to substantially increase the victim’s fear and anxiety. See
Anspaugh v Imlay Twp, 480 Mich 964; 741 NW2d 518 (2007) (vacating this Court’s judgment
because the panel “engaged in appellate fact finding”).

                                                -5-
limited to conduct occurring during the sentencing offense. The dissent improperly construes the
use of the term “relating” as opening the door to contemplation of prior and subsequent conduct
going beyond the sentencing offense.

        The Sargent Court stated, “That the general rule is that the relevant factors are those
relating to the offense being scored is further supported by the fact that the statutes for some
offense variables specifically provide otherwise.” Sargent, 481 Mich at 349. In applying this
rule, the Court held:

              [W]hen scoring OV 9, only people placed in danger of injury or loss of
       life when the sentencing offense was committed (or, at the most, during the same
       criminal transaction) should be considered.

              In the instant case, the jury convicted defendant only of sexually abusing
       the 13–year–old complainant. It did not convict him of sexually abusing the
       complainant's sister. Furthermore, the abuse of the complainant's sister did not
       arise out of the same transaction as the abuse of the complainant. For these
       reasons, zero points should have been assessed for OV 9. [Id. at 350-351.]

       Accordingly, the Court was clearly limiting the examination to conduct and events
occurring during the sentencing offense. Indeed, the McGraw Court interpreted Sargent in just
such a manner, stating that in Sargent “we held that offense variable (OV) 9 in the sentencing
guidelines cannot be scored using uncharged acts that did not occur during the same criminal
transaction as the sentencing offense.” McGraw, 484 Mich at 121-122 (emphasis added).
Speaking of Sargent later in its opinion, the McGraw Court noted that “it was clear that the
defendant's conduct [in Sargent] did not occur during the same criminal transaction.” Id. at 126
n 17.

        Furthermore, independent of Sargent, the Court in McGraw characterized its ruling as
“decid[ing] whether the offense variables should be scored solely on the basis of conduct
occurring during the sentencing offense or also using conduct occurring afterward.” Id. at 122.
As quoted earlier, the McGraw Court specifically held that “a defendant's conduct after an
offense is completed does not relate back to the sentencing offense for purposes of scoring
offense variables unless a variable specifically instructs otherwise.” Id. (emphasis added).
Contrary to the principle in this plain language, the dissent here is concluding that prior conduct
can relate forward to the sentencing offense. The McGraw Court rejected the argument “that the
Legislature intended sentencing courts to consider a defendant’s entire criminal transaction when
scoring the variables.” Id. at 128. And it concluded “that the Court of Appeals erred by
considering the entire criminal transaction and using defendant's conduct after the crime was
completed as the basis for scoring OV 9.” Id. at 133. The Court emphasized that the sentencing
variable at issue “must be scored . . . solely on the basis of defendant’s conduct during the
breaking and entering.” Id. at 134 (emphasis added). In the case at bar, the dissent is effectively
arguing in favor of a transactional or multi-transactional approach, examining the full history of
sexually-assaultive conduct committed by defendant against the victim in previous criminal
transactions, despite falling beyond the conduct that occurred during the sentencing offense.
McGraw and Sargent do not allow for such an approach. Furthermore, outside the framework of
McGraw and Sargent, MCL 777.37(1)(a) expressly limits the sentencing court to consideration
of whether a victim was treated with sadism “during the offense.”

                                                -6-
       The dissent, citing McGraw, 484 Mich at 129, states that “[t]he holding in McGraw was
not that conduct that occurred at a different time from the sentencing offense could never be
considered when scoring guidelines for that offense, but rather that any such conduct must
pertain to the sentencing offense unless the offense variable specifies otherwise.” We have
closely reviewed page 129 of the McGraw opinion and find no support whatsoever for this
proposition, and we stand by the quoted materials from McGraw referenced earlier in this
opinion and our interpretation thereof. In McGraw, 484 Mich at 129, the Court did observe:

              This does not mean that transactional conduct may never influence a
       defendant's sentence. Such a result would frustrate the Legislature's intention of
       having the guidelines promote uniformity in sentencing. Nothing precludes the
       sentencing court from considering transactional conduct when deciding what
       sentence to impose within the appropriate guidelines range and whether to depart
       from the guidelines recommendation.

        We are not holding that defendant’s conduct occurring before the sentencing offense was
committed cannot be considered in a sentencing departure or in imposing defendant’s minimum
sentence within the guidelines range. Indeed, the trial court may have sentenced defendant at the
very top end of the guidelines range precisely because of the history of sexual abuse. This
passage from McGraw simply does not suggest that a court may consider pre-offense conduct
that merely “pertains” to the sentencing offense in scoring a variable, such as OV 7, that is
limited to contemplation of conduct occurring during the sentencing offense.6

       The dissent suggests that McGraw is distinguishable because it dealt with post-offense
conduct and not pre-offense conduct. It is clear to us, however, that the analytical framework
constructed by our Supreme Court in McGraw applies regardless of whether a court is addressing
conduct occurring before or after the sentencing offense; the touchstone is that the conduct to be
considered in scoring the variable must have occurred during the commission of the sentencing
offense.

        Finally, the dissent, relying on research and data concerning ongoing sexual abuse of
children, makes an impassioned plea regarding the necessary interrelationship or interconnection
between the sentencing offense and the prior acts of sexual abuse, precluding examination of the
sentencing offense in a vacuum. We do not disagree with the dissent’s information regarding the
victims of child sexual abuse and their abusers, nor do we reject the dissent’s general theory
about abusive relationships; rather, we merely disagree that such matters are relevant under
McGraw and Sargent for purposes of scoring OV 7 in this case. We note that despite the fact
that OV 7 does not allow consideration of the full history of acts of sexual abuse, OV 13 was
assessed at 50 points, the highest score possible, because the sentencing offense “was part of a
pattern of felonious criminal activity involving 3 or more sexual penetrations against a person or
persons less than 13 years of age.” MCL 777.43(1)(a). OV 13 requires consideration of “all


6
  The McGraw Court would not even allow consideration of conduct amounting to fleeing and
eluding that occurred directly following the completion of the sentencing offense. McGraw, 484
Mich at 131-135. We thus find it plain that taking into consideration conduct occurring on
different days over a two-year period certainly could not survive scrutiny under McGraw.

                                               -7-
crimes within a 5-year period, including the sentencing offense, . . . regardless of whether the
offense resulted in a conviction.” MCL 777.43(2)(a). Thus, defendant’s past alleged sexual
abuse of the victim is relevant and has a bearing on his sentence.

       We have pondered the proposition that assessing 50 points under MCL 777.37(1)(a) is
perhaps proper on the basis that the act of digital-vaginal penetration occurring on February 24,
2013, has to be examined in context by taking into account the entire history of abuse, i.e., the
sexual penetration, in and of itself, was a sadistic act given everything else defendant had
allegedly done to the victim. However, such an analysis necessitates consideration of pre-
offense conduct for which defendant did not plead guilty or no-contest and that simply is not
permissible under MCL 777.37(1)(a), Sargent, and McGraw.

       Reversed and remanded for resentencing. We do not retain jurisdiction.



                                                           /s/ William B. Murphy
                                                           /s/ Deborah A. Servitto




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