8.8Statutory Sentencing Guidelines

A detailed discussion of the statutory sentencing guidelines is beyond the scope of this benchbook. This section of the benchbook makes brief reference to the sentencing guidelines and provides some basic information. For a comprehensive discussion of felony sentencing and the sentencing guidelines, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2.

The statutory sentencing guidelines apply to felony offenses listed in MCL 777.11 to MCL 777.19 that were committed on or after January 1, 1999.1 MCL 769.34(2). All prior record variables (PRVs) are to be scored for each offense subject to the guidelines. MCL 777.21(1)(b). Only certain offense variables (OVs) are scored for convictions subject to the guidelines. MCL 777.21(1)(a); MCL 777.22. A sentencing court is obligated to score the PRVs and applicable OVs for the particular conviction before the court, determine the minimum sentence range recommended by the properly scored guidelines, and, aware that the range indicated by the guidelines is advisory only, impose a sentence that is appropriate to both the offense and the offender. MCL 777.21(1)(c); People v Lockridge, 498 Mich 358, 364-365, 391, 399 (2015),2 rev’g in part 304 Mich App 278 (2014), and overruling People v Herron, 303 Mich App 392 (2013).3

A.Offense Variable (OV) 11—Criminal Sexual Penetration

Under the statutory sentencing guidelines, OV 11 must be scored for a defendant when criminal sexual penetration is involved in the sentencing offense. MCL 777.41. Although other OVs are also scored under the statutory sentencing guidelines for sexual assault offenses, OV 11 is one of only two variables that directly address CSC offenses.4

B.Offense Variable (OV) 13—Continuing Pattern of Criminal Behavior5

Fifty points are appropriately assigned to OV 13 when a defendant’s sentencing offense is part of a continuing pattern of felonious activity involving three or more sexual penetrations against an individual under the age of 13. MCL 777.43(1)(a).6 Points are also assessed under OV 13 when the sentencing offense is part of a pattern of felonious criminal activity7 involving three or more crimes against a person8 without regard to whether the previous felonious conduct involved criminal sexual conduct. MCL 777.43(1)(c); MCL 777.21(4)(b).

1   Until 2015, courts were mandated to impose on a defendant a minimum sentence falling within a range established by scoring the statutory sentencing guidelines. See MCL 769.34(2), as it appeared in 2002 PA 666, effective March 1, 2003. The guidelines became advisory when People v Lockridge, 498 Mich 358, 391 (2015), was decided. MCL 769.34(2) was amended by 2020 PA 295 to reflect the Michigan Supreme Court’s holding, effective March 24, 2020.

2   See also Alleyne v United States, 570 US 99 (2013), and Apprendi v New Jersey, 530 US 466 (2000).

3   See also People v Steanhouse, 500 Mich 453, 466 (2017).

4    For detailed information on the other OVs scored when sexual assault is involved, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 2.

5    The information about OV 13 appearing in this section is limited to the information relevant to criminal sexual conduct. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 2, for a complete discussion of the circumstances involved in scoring OV 13.

6   MCL 777.43, the statute defining OV 13, contains other point values for other circumstances of an offense, but those point values and corresponding circumstances are not relevant to the discussion in this benchbook. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 2, for additional information about OV 13.

7   Misdemeanor offenses punishable by more than one year of imprisonment may be included when scoring OV 13 according to MCL 777.43(1)(c) (pattern of felonious activity involving three or more crimes against a person). People v Carlson, 332 Mich App 663, 670-671 (2020). See MCL 777.43(1)(c).

8   “Crimes against a person” is one of the crime groups identified in the sentencing guidelines. MCL 777.5.