Michigan Court Of Appeals Holds CSC Consecutive Sentence Is Error

On June 2, 2015, the Michigan Court of Appeals held in a criminal case involving four counts of first-degree Criminal Sexual Conduct (CSC) that the trial court erred in imposing a consecutive sentence on Count I and concurrent sentences on Counts II, III, and IV.

In People v Bailey, Docket No. 318479, the Michigan Court of Appeals addressed the issue of whether the trial court erred in running one of defendant's four first-degree CSC convictions consecutively in relation to defendant's three other first-degree CSC convictions.

The Court first recited the facts of the case.

AB and MB were sisters and defendant resided in their home for several years. MB, born in 1996, testified that defendant repeatedly engaged in digital-vaginal penetration of her as far back as she could remember, but that her first specific recollection of defendant digitally penetrating her occurred when she was seven years old. She testified that defendant continued this conduct until he moved out of the home in November 2008. As to MB, defendant was charged with, and convicted of, two counts of CSC I. As to Count I, but not Count II, defendant was charged with violating MCL 750.520b(1)(a) and (2)(b) (victim under age 13 and defendant over age 17), the provision that provides for a 25-year mandatory term of imprisonment, MCL 750.520b(2)(b). The jury was instructed that to convict on this offense, it had to find that defendant committed the crime between August 1, 2008 and November 2008 (the month in which MB testified that the assaults stopped). Count II did not provide for any specific date of offense other than a nearly seven-year period and was charged simply under MCL 750.520b(1)(a) (victim under age 13).

AB, born in 1994, testified that the first incident of digital-vaginal penetration occurred in the summer of 2003 and continued on a daily basis until she left for boarding school in the summer of 2008. As to AB, defendant was charged with, and convicted of, a single count of CSC I, MCL 750.520b(1)(a) (victim under age 13). The date of the offense was listed as January 1, 2001 to November 30, 2008, with no particular date referenced. This was Count III of the felony information.

BS was a cousin of AB and MB. She testified that defendant digitally penetrated her vagina on one occasion in June 2007, during a visit. As to BS, defendant was charged with, and convicted of, a single count of CSC I, MCL 750.520b(1)(b)(ii) (victim between ages 13-16 and related by blood or affinity to defendant). This was Count IV of the information.

Defendant was convicted on all counts. As to Count I, the trial court sentenced him to the mandatory 25 to 50 years’ imprisonment. As to each of the other counts, the court imposed terms of 225 months to 50 years. The trial court, stating that it was exercising its authority under MCL 750.520b(3), ordered that the sentence for Count I be served consecutive to the other three sentences, which were to be served concurrently with one another. In sum, defendant was sentenced to a combined minimum term of 43 years and 8 months, which would make him 79 years old at the time he is first eligible to be considered for parole.

The Court's analysis of whether the trial court erred in sentencing defendant as it did followed.

“In Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed only if specifically authorized by statute.” People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012) (quotation marks and citation omitted). However, MCL 750.520b(3) provides that where defendant is convicted of a charge of CSC I, the trial court “may order [that the] term of imprisonment imposed under this section to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.”

The statutory language clearly limits this authority to cases where the multiple offenses arose from the “same transaction,” and the relevant caselaw is consistent with that legislative determination. In Ryan, 295 Mich App at 393, we held that two acts of CSC I occurred in “the same transaction” where, while the victim’s stepmother was at a wedding, the defendant (the victim’s father), “called [her] into his bedroom, demanded that she remove her clothing . . . put his penis in her vagina and thereafter placed his penis in her mouth, leading to ejaculation.” In People v Brown, 495 Mich 962, 963; 843 NW2d 743 (2014), the Supreme Court vacated the trial court’s order that defendant serve each of his seven sentences for CSC I consecutively, directing that only three of the sentences could be imposed consecutively as arising from the “same transaction.” In Brown, the defendant was charged with, and convicted of, seven counts of CSC I against his granddaughter and the trial court imposed a consecutive sentence for each one. See People v Brown, unpublished opinion per curiam of the Court of Appeals, issued July 30, 2013 (Docket No. 308510), pp 3, 6, rev’d 495 Mich 963 (2014). The Supreme Court reversed, stating that it had reviewed the record and that “at most” only three of the seven sentences could be imposed consecutively. Brown, 495 Mich at 962-963. While we do not have access to the trial court record in that case, the prosecution’s brief to this Court reviewed a total of seven criminal penetrations perpetrated by the defendant, against the same victim, over approximately 10 days during three separate incidents. Three of the penetrations occurred in the course of a single ongoing assault, thus allowing for the sentences for the second and third penetrations of that transaction to each be imposed consecutively to the first, and to each other. During a separate transaction, two penetrations occurred, allowing for the second to be imposed consecutively to the first. In that seven-assault case, therefore, three sentences could each be imposed consecutively to the four concurrent sentences and to each other. While we cannot be certain that this was the basis for the Supreme Court’s decision, we can be certain that the Court concluded that four of the penetrations within that 10-day period were not part of the “same transaction,” even though they were close in time and demonstrated ongoing child sexual abuse of the same victim. It is also consistent with Ryan’s reliance on People v Nutt, 469 Mich 565, 578 n 15; 677 NW2d 1 (2004) (quotation marks and citation omitted), for the principle that “[i]t is not an unfrequent occurrence, that the same individual, at the same time, and in the same transaction, commits two or more distinct crimes . . . .”

In sum, we hold that an ongoing course of sexually abusive conduct involving episodes of assault does not in and of itself render the crimes part of the same transaction. For multiple penetrations to be considered as part of the same transaction, they must be part of a “continuous time sequence[,]” not merely part of a continuous course of conduct. Brown, 495 Mich at 963; Ryan, 295 Mich App at 402-403.

In the instant case, Count I alleged that defendant committed CSC I against MB between August 1, 2008 and November 2008. Although a brief time overlap exists, there is no evidence that defendant’s commission of Count I occurred on the same transaction as the offense against AB (Count III), who left for boarding school in August 2008. Count I clearly did not occur during the same transaction as the offense against BS (Count IV), who testified to a single occurrence in the summer of 2007. While the jury convicted defendant of another count of CSC I of MB (Count II) in an approximately seven-year time period, there is no evidence in the record that MB was subject to several distinct acts of penetration sufficient to constitute the same transaction or that Count II was committed in the same transaction as Counts III and/or IV. Accordingly, we conclude that the trial court did not possess the statutory authority to impose consecutive sentences and that doing so was plain error. We vacate defendant’s sentence on Count I and remand for resentencing on that count to a term of years that shall be served concurrently to his other sentences.