Also See:
Tuesday, September 30, 2008
Monday, September 29, 2008
09292008 - Deputy Craig Baker - CSC Dismissed - Benzie County SD
Also See:
Deputy Craig Baker charged with CSC [April 01, 2008]
Judge dismisses charge against sergeant
September 29, 2008
By ART BUKOWSKI
The Record-Eagle
http://webcache.googleusercontent.com/search?q=cache:S-ryu338tGcJ:record-eagle.com/local/x75060936/Judge-dismisses-charge-against-sergeant/print+&cd=6&hl=en&ct=clnk&gl=us
BEULAH -- A fired Benzie County corrections sergeant might try to get his job back after a judge dismissed a criminal sex charge against him.
Benzie Circuit Judge James Batzer on Friday dismissed a single count of fourth-degree criminal sexual conduct against Craig Baker. Baker was suspended in April and later fired after allegations surfaced that he sexually assaulted a teen girl.
But the alleged victim said she lied about the incident in a signed affidavit, court filings show. Batzer granted a motion, made by defense attorney Brett Naumcheff, to dismiss the case based on lack of evidence.
The Benzie sheriff's department asked Michigan State Police for an investigation after hearing Baker allegedly assaulted the girl, then 14, at his residence during the winter of 2005. State police arrested Baker in April, and he was immediately suspended. A week later he was fired.
Baker was fired based on statements he made to state police and sheriff's administrators, Undersheriff Rory Heckman said.
Baker, 37, worked for the department since 1997. He couldn't be reached for comment, and Naumcheff didn't return calls for comment.
The department will defend its firing of Baker if he files a grievance seeking re-employment, despite Batzer's decision, Heckman said.
"We're convinced something still occurred," he said.
The sheriff's department expects Baker will try to get his job back, Heckman said.
Police Officers Association of Michigan representative Pat Spidell had yet to speak with Baker and wasn't sure if the union will work to get the job back, he said.
"We've got to review the court case and some other issues in our office before we make a determination," he said.
Benzie deputy suspended amid CSC charges
Court bailiff accused of sexually assaulting woman
By ALEX PIAZZA
The Record Eagle
Fri Apr 16, 2010, 07:55 AM EDT
http://record-eagle.com/friday/x2074892830/Benzie-deputy-suspended-amid-CSC-charges/print
BEULAH -- Benzie Sheriff Rory Heckman suspended one of his deputies without pay after police said he twice sexually assaulted a woman.
Authorities this week charged Richard "Rick" Lee Zych, 52, of Honor, with two counts of fourth-degree criminal sexual conduct. The high-court misdemeanor charge is punishable by up to two years in prison and/or $500.
He "engaged in non-consensual sexual contact" with a woman "by using force and coercion" on two occasions last year, court records show. The woman was an acquaintance, but they weren't in a relationship, Heckman said.
Zych, a court bailiff who's worked for the department since 1997, was suspended on Wednesday without pay or benefits. His arraignment is scheduled for April 22 in 85th District Court.
A union representing Zych filed a grievance on Thursday, contending the sheriff's department wrongfully suspended him without pay.
"He obviously hasn't been afforded his due process rights to defend himself," said Pat Spidell, a Police Officers Association of Michigan representative.
Heckman said he'll respond to the grievance soon.
The sheriff's department in December suspended Zych with pay pending a Michigan State Police investigation. Zych was required to call the department twice a day while on paid suspension, but because Heckman on Wednesday stripped him of his pay and benefits, he no longer has to check in. He did not return a call for comment.
Zych is the most recent Benzie County sheriff's deputy charged with sexual assault.
The sheriff's department two years ago fired Craig Baker, a corrections sergeant, after allegations surfaced that he sexually assaulted a girl, then 14, in 2005. A judge dismissed the case because the alleged victim said she lied about the incident, but Heckman refused to reinstate Baker.
At least two other Benzie officers this decade were convicted on sexual assault charges.
Heckman said the department must continue to conduct thorough background checks to ensure similar incidents don't occur. The sheriff's department requires its deputies, both for corrections and road patrol, to undergo a psychological examination before they're hired.
"Those weren't always done in the past," Heckman said. "It's a necessary piece of the puzzle.
The more eyes you have looking at it, it's going to help you."
Sunday, September 28, 2008
09282008 - Firefighter Joel Abernathy - Sterling Heights FD
Firefighter accused of assault at bar
DEANNA ROSE
Source Staff Writer
PUBLISHED: Sunday, October 5, 2008
http://www.sourcenewspapers.com/stories/100508/loc_story4001.shtml
A Sterling Heights firefighter was arrested for allegedly hitting a woman with his gun while at a bar after arguing with his wife, witnesses said.
Harper Woods Police Chief Randolph Skotarczyk said St. Clair Shores resident Joel Abernathy, 44, was arrested following the incident, which occurred at 9 p.m. on Sept. 29 at the Ugly Duckling, 20912 Harper Ave., north of 8 Mile Road in Harper Woods.
Police received a call about a man inside the bar, wearing a firefighter’s uniform, who reportedly pointed a .45-caliber handgun at a woman. Skotarczyk said the man was gone by the time police arrived.
The barmaid told police the man was a known person who frequented the bar and he was seen leaving the establishment after arguing with his wife. Forty minutes later, the witness reported, the man returned and was dressed in a firefighter’s uniform.
Skotarczyk said the man then approached a woman and hit her in the back of her head with a gun, then demanded his keys from the barmaid. He grabbed the purse of his wife - who was playing pool - and dumped out its contents so he could get his keys, then left in a black SUV.
Since he was a known customer at the bar and had used a credit card there, police were able to obtain Abernathy’s address and went to his house. Skotarczyk said Abernathy was not home at that time, but his wife was. She told police he did not hurt her.
Police located Abernathy’s vehicle a short time later at Eastlawn and Salisbury streets in St. Clair Shores, and found Abernathy walking nearby, where they arrested him. He had no handgun on him, but police did locate a 9mm bullet in his pocket
Skotarczyk said he had no information about Abernathy’s blood-alcohol content, but that alcohol and drugs did not seem to be factors in the incident. He also said Abernathy had no prior incidents on his record.
“This appears to be very out of character,” Skotarczyk said.
Warrants were obtained from the Wayne County Prosecutor’s Office, and Abernathy was charged with felonious assault and felony firearm possession on Sept. 30. His bond was set at $10,000 and Skotarczyk said he remains in custody at the Harper Woods Police Department. A preliminary exam has not been set.
Sterling Heights Fire Chief Steve Kovalcik could not be reached for comment.
St. Clair Shores: Firefighter faces charges
Thursday, October 2, 2008DEANNA ROSE
Source Staff Writer
PUBLISHED: Sunday, October 5, 2008
http://www.sourcenewspapers.com/stories/100508/loc_story4001.shtml
A Sterling Heights firefighter was arrested for allegedly hitting a woman with his gun while at a bar after arguing with his wife, witnesses said.
Harper Woods Police Chief Randolph Skotarczyk said St. Clair Shores resident Joel Abernathy, 44, was arrested following the incident, which occurred at 9 p.m. on Sept. 29 at the Ugly Duckling, 20912 Harper Ave., north of 8 Mile Road in Harper Woods.
Police received a call about a man inside the bar, wearing a firefighter’s uniform, who reportedly pointed a .45-caliber handgun at a woman. Skotarczyk said the man was gone by the time police arrived.
The barmaid told police the man was a known person who frequented the bar and he was seen leaving the establishment after arguing with his wife. Forty minutes later, the witness reported, the man returned and was dressed in a firefighter’s uniform.
Skotarczyk said the man then approached a woman and hit her in the back of her head with a gun, then demanded his keys from the barmaid. He grabbed the purse of his wife - who was playing pool - and dumped out its contents so he could get his keys, then left in a black SUV.
Since he was a known customer at the bar and had used a credit card there, police were able to obtain Abernathy’s address and went to his house. Skotarczyk said Abernathy was not home at that time, but his wife was. She told police he did not hurt her.
Police located Abernathy’s vehicle a short time later at Eastlawn and Salisbury streets in St. Clair Shores, and found Abernathy walking nearby, where they arrested him. He had no handgun on him, but police did locate a 9mm bullet in his pocket
Skotarczyk said he had no information about Abernathy’s blood-alcohol content, but that alcohol and drugs did not seem to be factors in the incident. He also said Abernathy had no prior incidents on his record.
“This appears to be very out of character,” Skotarczyk said.
Warrants were obtained from the Wayne County Prosecutor’s Office, and Abernathy was charged with felonious assault and felony firearm possession on Sept. 30. His bond was set at $10,000 and Skotarczyk said he remains in custody at the Harper Woods Police Department. A preliminary exam has not been set.
Sterling Heights Fire Chief Steve Kovalcik could not be reached for comment.
St. Clair Shores: Firefighter faces charges
Macomb briefs
http://www.detnews.com/apps/pbcs.dll/article?AID=/20081002/METRO03/810020394/1409/METRO
A Sterling Heights firefighter accused of hitting a woman in the head with the barrel of a gun in a Harper Woods bar on Sunday has been charged with felonious assault and carrying a weapon without a permit. Joel Eric Abernathy, 44, of St. Clair Shores was arraigned in 32-A District Court in Harper Woods on Tuesday and was released from jail on bond Wednesday, Harper Woods Police Chief Randolph A. Skotarczyk said. He was placed on leave from his job.
Police say Abernathy got into an argument with his wife at the Ugly Duckling Saloon on Harper near Eight Mile. Police allege Abernathy left the bar, went home, changed into his firefighter's uniform and returned to the bar. He mistook a waitress for his wife, hit her in the back of the head with the gun and demanded his car keys, Skotarczyk said.
HARPER WOODS: Firefighter arraigned in bartender incident
Wayne County news briefs:
OCTOBER 1, 2008
http://www.freep.com/apps/pbcs.dll/article?AID=/20081001/NEWS02/810010348/
A Sterling Heights firefighter was arraigned Tuesday, accused of hitting a bartender in the back of the head with a handgun when he was wearing his dress uniform, Harper Woods Police Chief Randolph Skotarczyk said.
Joel Abernathy, 44, of St. Clair Shores is charged with one count each of felonious assault and a firearms offense in the incident about 9 p.m. Sunday at the Ugly Duckling Saloon on Harper. He was being held in the city lockup pending 10% of a $10,000 bond after arraignment in 32A District Court in Harper Woods, Skotarczyk said.
Abernathy is on administrative leave. Whether he will be on leave with or without pay is under review.
Michigan Firefighter Cracks Up
Fire Geezer on 01 Oct 2008 10:40 am
http://firegeezer.com/2008/10/01/michigan-firefighter-cracks-up/
A STERLING HEIGHTS, MICHIGAN, FIREFIGHTER HAS BEEN taken into custody by police following a bizarre incident Sunday night. Joel Abernathy, 44, was arraigned Monday and charged with felonious assault and a firearms offense after an altercation with his wife and an off-duty bartender.
Abernathy and his wife were patrons at the Ugly Duckling bar in nearby Harper Woods when they got into an argument. He then stormed out of the bar, but returned 40 minutes later suddenly clothed in his fire department dress uniform and carrying a large handgun.
While he was gone, his wife moved to another area in the bar to play a game of pool. When Abernathy returned he mistook another woman sitting at the bar, an off-duty employee, for his wife and accosted her with the gun. Holding the gun to her head, he demanded that she “give me the keys!” After realizing his mistake, he sought out his wife in the bar, grabbed her purse and left.
When the police arrived, other patrons identified him and his credit card receipt confirmed it. Driving to his house, they found him walking along the street and arrested him.
Police: Firefighter Threatens Woman At BarFirefighter Mistakes Waitress For Wife
POSTED: 8:02 am EDT October 1, 2008
UPDATED: 12:34 pm EDT October 1, 2008
http://www.clickondetroit.com/news/17596456/detail.html
HARPER WOODS, Mich. -- A Sterling Heights firefighter was taken into police custody after he allegedly threatened a woman he thought was his wife at a local bar.
Police said the firefighter, Joel Abernathy, was inside the Ugly Duckling bar in Harper Woods when he pulled out a gun and pointed it at the back of a woman's head.
Police Chief Randolph Skotarczyk said it appeared Abernathy was going to confront his wife, who was near the entrance playing pool, but mistakenly confronted another woman he thought was his wife.
The other woman was an off-duty waitress.
"He put the gun up to the back of her head and demanded the keys. She said, 'I don't have the keys,'" said Skotarczyk.
He noticed his mistake, found his wife, and took her purse and left, Skotarczyk said.
Customers identified Abernathy to the police, who went to his home and found him.
Abernathy has been a firefighter for Sterling Heights for the past 12 years.
He has been placed on administrative leave.
The woman was not injured.
Abernathy remains in police custody.
Investigators said Abernathy told them he threw the gun in a trashcan as he walked home.
Uniformed Firefighter Holds Gun To Woman's Head
Man Mistakes Waitress For Wife
POSTED: 10:30 pm EDT September 30, 2008
UPDATED: 11:19 pm EDT September 30, 2008
http://www.clickondetroit.com/news/17594955/detail.html
A Sterling Heights firefighter is accused of holding a gun to the head of a woman in a bar, mistaking her for his wife.
Harper Woods Police said Joel Abernathy and his wife got into an argument at the Ugly Duckling Bar on Harper Monday night.
Witnesses said he left the bar and returned 40 minutes later armed and dressed in his formal uniform with patches.
“It’s like something you see on TV or in the movies,” a witness identified only as Geoff said “A gentlemen a regular came in with what seemed like a large .45 caliber semi-auto handgun.”
Investigators said Abernathy’s wife had been sitting at the bar but moved to play pool when Abernathy had left.
Police said Abernathy walked up to the bar, put the gun to the woman’s head and demanded she give him keys.
The woman, an off-duty waitress who works at the bar, was no hurt.
Witnesses said when Abernathy realized the woman was not wife, he combed the bar for her, grabbed her purse and took off.
Police said witnesses in the bar were able to identify Abernathy and authorities arrested him at his home in St. Clair Shores.
“They located him walking down the street, he was arrested,” said Chief Randolph Skotarczyk Harper Woods Police Department.
Abernathy has worked for the Sterling Heights Fire Department for 12 years and has been placed on administrative leave.
Police have not recovered the gun Abernathy used. Police said they believe he discarded it after the incident.
Sterling Heights firefighter accused of hitting bartender with gun
By CHRISTINA HALL •
FREE PRESS STAFF WRITER •
September 30, 2008
http://www.freep.com/apps/pbcs.dll/article?AID=/20080930/NEWS04/80930114
A Sterling Heights firefighter was arraigned today, accused of hitting a bartender in the back of the head with a handgun when he was wearing his dress uniform, Harper Woods Police Chief Randolph Skotarczyk said.
Joel Abernathy, 44, of St. Clair Shores is charged with one count each of felonious assault and a firearms offense in the incident about 9 p.m. Sunday at the Ugly Duckling Saloon on Harper. He was being held in the city lockup pending 10% of a $10,000 bond after arraignment in 32A District Court in Harper Woods, Skotarczyk said.
Abernathy is on administrative leave pending criminal and internal investigations. Whether he will be on leave with or without pay is under review.
Police said Abernathy got into an argument with his wife, left the bar and returned about 40 minutes later in his dress uniform and armed with a handgun. He is accused of hitting a bartender in the back of the head with the gun and demanding keys, which the bartender did not have. He then left in a sport-utility vehicle.
Police located Abernathy’s home through his credit card, which he used at the bar. They found the SUV in the area of Eastlawn and Salisbury in St. Clair Shores and saw Abernathy walking down the street, still wearing part of his uniform. The rest of the uniform was in the SUV, Skotarczyk said.
He said Abernathy was cooperative with officers, who found a 9 mm bullet in his pants pocket. They have not found the gun, but said it might have been thrown into the garbage.
09282008 - Officer David Cobb - Suicide - Detroit PD
KIMBERLY P. MITCHELL/Detroit Free PressDisplaying a photo of the late Rose Cobb are her family members, clockwise from left, Adrian Gary, 34; Taneeka Gary, 35; Sheryl Gary, 54, and Elizabeth Haygood, 50, all of Detroit. They believe her husband's family is in denial over his role in her killing.
Links to news articles on Officer David Cobb found hanged:
Links to news articles Rose Cobb's murder and the murder investigation:
http://michiganoidv.blogspot.com/2008/04/in-memory-of-rose-cobb.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobb-detroit-pd-421-42208.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobb-april-23-2008-news.html
http://michiganoidv.blogspot.com/2007/12/unsolved-murder-of-ross-cobb-wife-of.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobb-detroit-pd-42408.html
http://michiganoidv.blogspot.com/2008/05/officer-david-cobbs-solicitation-of-sex.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobbs-suspension-for.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobb-detroit-pd-421-42208.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobb-april-23-2008-news.html
http://michiganoidv.blogspot.com/2007/12/unsolved-murder-of-ross-cobb-wife-of.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobb-detroit-pd-42408.html
http://michiganoidv.blogspot.com/2008/05/officer-david-cobbs-solicitation-of-sex.html
http://michiganoidv.blogspot.com/2007/12/officer-david-cobbs-suspension-for.html
Wednesday, September 24, 2008
09242008 - Officer Kenneth Pappas - Charges Dropped - Sterling Heights PD
Also See:
Sterling Heights Officer Kenneth Pappas charged with domestic violence [Aug. 23, 2008]
Domestic violence charges dropped against officer
By DEANNA ROSE
Source Staff Writer
PUBLISHED: Sunday, October 5, 2008
http://www.sourcenewspapers.com/stories/100508/loc_story1001.shtml
A judge dismissed a domestic violence charge against a Sterling Heights police officer accused of engaging in a physical altercation with his wife, after the alleged victim and another witness failed to show up in court for the trial.
Kenneth Pappas, 34, was placed on routine paid administrative leave after his arrest at his Macomb Township home on Aug. 24, but was reinstated after the dismissal by Judge Douglas Shepherd at 41-A District Court in Shelby Township on Sept. 29.
Macomb County assistant prosecutor Erika Breitfeld told Shepherd that the prosecution had reluctant witnesses in Pappas’ wife, Kelly Pappas, and an eyewitness, and asked for an adjournment to a later date.
David Griem, Pappas’ attorney, asked Shepherd that the charges against Pappas be dismissed because Kelly Pappas was not in the courtroom.
Shepherd sided with Pappas and dismissed the charges, but told the prosecution he would grant reauthorization of the case if the victim brought charges.
Griem said Kelly Pappas did not show up because she did not want to press charges against her husband, from whom she is separated, and that it was the Macomb County Sheriff’s Department who brought the charges following the August incident. Deputies arrested Kenneth Pappas after responding to a domestic violence call at the home where Kelly Pappas is currently living.
“Kelly Pappas made it crystal clear twice in the police report that she did not want to prosecute,” Griem said. “Many times in cases like this, once the anger has subsided the case turns out to be something very different from what was first described to police, when one or both of the individuals were under the influence of their emotions.”
Griem said Kenneth Pappas and Kelly Pappas wanted the no-contact stipulation removed so the two could spend time at their child’s birthday party the following weekend. The couple has three children, ages 6, 8 and 10.
“Their only concern is the well-being of their three children. They both want to be the best parents they can possibly be,” Griem said. “When one speaks from their heart, many times things don’t come out the way they should. Both Kelly and Ken want to put this behind them.”
Griem said it was his understanding that Kelly Pappas was not in court that day because she was attending a field trip with their 6-year-old child.
Sterling Heights Police Lt. Robert Henigan said Pappas was able to return to work after the charge was dismissed, but an administrative investigation is ongoing with regard to any violation of department rules.
Tuesday, September 23, 2008
09232008-- Former Officer Phillip Bal - Appeal COA 280601 - OPINION - Conviction Affirmed - Iron Mountain PD
Also See:
1995 - Officer Phillip Bal - CSC allegation - Iron Mountain PD
04012004 - Officer Phillip Bal - Home invasion and CSC - Iron Mountain PD
04012005 - Officer Phillip Bal - CSC - Iron Mountain PD
04212006 - Officer Phillip Bal - CSC - Iron Mountain PD
04222006 - Officer Phillip Bal - Suspended - Iron Mountain PD
07112006 - Officer Phillip Bal - Terminated - Iron Mountain PD
08152007 - Former Officer Phillip Bal - Appeal Filed - COA 280009 - Iron Mountain PD
09172007 - Former Officer Phillip Bal - Appeal Filed - COA 280601 - Iron Mountain PD
10182007 - Former Officer Phillip Bal - COA Appeal 280009 - Dismissed - Iron Mountain PD
11082007 - Former Officer Phillip Bal - LE license revoked - Iron Mountain PD
05242020 - Former Officer Phillip Bal - Released From Prison - Iron Mountain PD
05242020 - Former Officer Phillip Bal - Registered Sex Offender - Iron Mountain PD
Thursday, September 18, 2008
09182008 - Officer Keith Walker - Suspension - Detroit PD
On September 18, 2008, Detroit Police Officer Keith Walker was suspended from the department for his Setember 13th arrest for domestic violence.
Also See:
Officer Keith Walker charged with domestic violence [Sept. 13, 2008]
Saturday, September 13, 2008
09132008 - Officer Keith Walker - Detroit PD
Detroit Police Officer Keith Walker
Original Charge: felonious assault / domestic violence and assault and battery / domestic violence. [September 13, 2008]
Sentence: ????
Original Charge: felonious assault / domestic violence and assault and battery / domestic violence. [September 13, 2008]
Sentence: ????
Thursday, September 11, 2008
09112008 - Undersheriff Bruce Gualtiere - Acquitted - Kalkaska County SD
Also See:
Kalkaska Undersheriff Bruce Gualtiere charged with domestic violence
[ June 28, 2008]
http://michiganoidv.blogspot.com/2008/06/undersheriff-bruce-gualtiere-kalkaska.html
[ June 28, 2008]
http://michiganoidv.blogspot.com/2008/06/undersheriff-bruce-gualtiere-kalkaska.html
Kalkaska undersheriff returns to duty after cleared of domestic violence charge
by The Grand Rapids Press
Friday September 12, 2008, 6:24 PM
KALKASKA COUNTY
http://www.mlive.com/grpress/news/index.ssf/2008/09/kalkaska_undersheriff_returns.html
-- Undersheriff Bruce Gualtiere returned to work Friday after he was cleared of a misdemeanor domestic violence charge alleging he assaulted his 17-year-old stepson by pushing him into a garage door.
Gualtiere had been on administrative leave since the June 28 complaint was filed. Sheriff Bill Artress said the system worked and that a jury, which found Gualtiere not guilty on Thursday, came to the right conclusion.
Sheriff William Artress announced on Friday that the case was closed and Gualtiere would be returning to work on Friday.WPBN News, Michigan
Friday, September 12, 2008 at 11:54 a.m.
http://upnorthweather.com/news/news_story.aspx?id=190071
Kalkaska County's Undersheriff is found not guilty in an assault case involving his step son.
The trial for Bruce Gualtiere took place Thursday in Grand Traverse County.
Investigators say on June 28th the Undersheriff had an argument with his 17- year- old step son that led to what was called "a small pushing and shoving incident."
Gualtiere was on paid leave pending the outcome of the trial. Sheriff William Artress announced on Friday that the case was closed and Gualtiere would be returning to work on Friday.
KALKASKA COUNTY UNDERSHERIFF CLEARED ON ALL CHARGES
WWUP News, Michigan
Posted: 9/12/2008
http://www.9and10news.com/category/story/?id=142196
Kalkaska County Undersheriff Bruce Gualtiere will be headed back to work after a Grand Traverse County jury found him not guilty on assault charges.
Gualtiere was charged for an alleged dispute with his stepson back in June.
Since the incident, Gualtiere was placed on paid suspension from his job at the Kalkaska Sheriff's Department.
We'll have more on this story coming up on 9 &10 News at five and six..
Monday, September 8, 2008
09082008 - Officer David Essad - Sentenced - Shelby Township PD
Also See:
Officer David Essad charged with felonious assault and domestic violence [April 12, 2008]
Officer David Essad : Assaulted wife And
broke her nose
ORIGINAL CHARGES: FELONIOUS ASSAULT; AND AGGRAVATED DOMESTIC VIOLENCE. PLED DOWN TO AGGRAVATED MISDEMEANOR ASSAULT
CURRENT STATUS: PROBATIONER
LOCATION: OAKLAND/TROY/PROBATION
SECURITY LEVEL:
SUPERVISION BEGIN DATE: 09/09/2008
SUPERVISION DISCHARGE DATE: 09/09/2010
SENTENCE 1:
OFFENSE: DOMESTIC VIOLENCE-AGGRAVATEDMCL #: 750.81A2
COURT FILE # : 08220733-FH
COUNTY: OAKLAND
CONVICTION TYPE: PLEA
MINIMUM SENTENCE:
MAXIMUM SENTENCE: 2 YEARS 0 MONTHS
DATE OF OFFENSE: 04/12/2008
DATE OF SENTENCE: 09/08/2008
SENTENCE 2:
OFFENSE: DOMESTIC VIOLENCE- AGGRAVATED
MCL #: 750.81A2
COURT FILE # : 08220733-FH
COUNTY: OAKLAND
CONVICTION TYPE: PLEA
MINIMUM SENTENCE:
MAXIMUM SENTENCE: 2 YEARS
DATE OF OFFENSE: 04/12/2008
DATE OF SENTENCE: 09/09/2008
SUPERVISION CONDITIONS:
01-NO VIOLATIONS OF ANY CRIMINAL LAW
02-NOT LEAVE STATE W/O PERMISSION
02.0-NOT USE/POSSESS ALCOHOL OR INTOXICANTS
02.1-ALCOHOL TESTING
02.2-DRUG TESTING
02.4-NOT USE OF HAVE ANY CONTROLLED SUBSTANCES OR DRUG ITEMS
02.8-OUTPATIENT SUBSTANCE ABUSE TREATMENT
03-MONTHLY REPORTING
03.3-APPLY TO MENTAL HEALTH TREATMENT PROGRAM
03.4-MUST ATTEND PROGRAMS REQUIRED
04-NOTIFY OF CHANGE OF RESIDENCE
04.18-BEHAVIOR
04.20-NOT OWN OR POSSESS WEAPONS
06.4-MAINTAIN EMPLOYMENT OF AT LEAST 30 HOURS PER WEEK
08.0-SERVE JAIL TIME AS DESCRIBED
08.2-PAY A CRIME VICTIM’S ASSESSMENT
08.3-PAY SUPERVISION FEE PURSUANT TO PA 185 OF 1993
08.4-PAY COURT COST
08.11-ASSIGNMENT OF WAGES UNTIL ORDERED ASSESSMENTS ARE PAID
08.18-STATE COSTS
Former cop gets probation in assault trial
By CHRIS WILLIAMS
Source Staff Writer
PUBLISHED: Sunday, September 14, 2008
http://www.sourcenewspapers.com/stories/091408/loc_story19001.shtml
A former Shelby Township police officer arrested last April for domestic violence has been sentenced to two years probation by an Oakland County Judge. The Honorable Shalina Kumar sentenced David Essad on two counts of aggravated domestic violence in Oakland County Circuit Court on Sept. 9. Essad had been arrested in Rochester in April after a fight with his wife resulted in her receiving a black eye, bruised lip, broken nose and a closed-head injury that was discovered later. Essad pleaded guilty to the charges in front of Kumar on Aug. 5.
Essad, an 8-year veteran of the Shelby Township Police Department, had initially been charged with felonious assault, which could have resulted in jail time, but the charges were lowered when his wife submitted a letter to the court stating that the situation was an isolated incident that happened because both she and Essad had been drinking.
Essad, who has been in alcohol treatment since the incident, briefly addressed Kumar at the sentencing.
“This unfortunate incident was a direct result of my abuse of alcohol,” he said. He informed Kumar that he and his wife are undergoing marital counseling, and said he will do what it takes to become an upstanding citizen.
Kumar agreed to sentence Essad to two years probation for each count. Kumar also ordered Essad to have no alcohol in his system, submit to alcohol and drug testing, and continue his participation in an alcohol treatment program. He is not to carry a firearm except for his employment; during the fight with his wife, he had taken his gun out of the holster and banged it on his car’s window.
Essad, who is currently working as a security guard, was terminated from his position with the police department June 16. Police Chief Robert Leman stated in a letter to Essad that his behavior on April 12 tarnished the reputation of the Shelby Township Police Department. With the charges lowered from a felony to misdemeanors, Essad will be able to appeal the termination through his union representative, said his lawyer, Jerome Sabbota.
“He would have to have a hearing in front of the union,” said Shelby Township Police Capt. Stephen Stanbury. “He has already filed a grievance, so that’s where it starts.”
Stanbury said Essad’s record with the police department was previously clear of any outstanding violations.
“He didn’t have anything egregious on there,” he said. “His record was pretty clean, but that’s really all I can say.”
Fired Shelby cop pleads guilty to misdemeanors
PUBLISHED: Friday, August 8, 2008
By Shaun Byron
Journal Register News Service
http://www.macombdaily.com/stories/080808/loc_local06.shtml
A former Shelby Township police officer could face jail time after pleading guilty to two counts of aggravated domestic violence and admitting assaulting his wife.
David Essad, 34, appeared Tuesday morning before Oakland County Circuit Court Judge Shalina Kumar on charges that he beat his wife, Julie Essad, and threatened to kill her while holding a gun last April. She has since filed for divorce.
David Essad had been charged with felonious assault with a gun, a 4-year felony, and aggravated domestic violence, a 1-year misdemeanor.
The Oakland County Prosecutor's Office made an agreement with his attorney, Jerome Sabbota, to amend the charges in exchange for a plea.
The prosecutor's office and Kumar also had received a letter from Julie Essad, stating David Essad had been complying with court-ordered treatment for alcohol abuse and has remained sober.
Kumar also granted requests to lift a no-contact order and cancel the tether, which were all part of his bond requirements.
David Essad will return before Kumar to be sentenced Sept. 9.
Essad has been fired from his job as a Shelby Township police officer. He has filed a grievance over the discharge and the issue is headed to arbitration.
In May, Julie Essad testified at a preliminary exam in 52-3 District Court that she and her husband had been at Gus O'Connor's in Rochester on April 11 to celebrate her birthday.
She told the court that David Essad drank heavily, became upset because she spoke to an ex-boyfriend, and began yelling and swearing at her in the car as she drove them home.
Julie Essad said he repeatedly pulled her hair and banged her head against the driver's side window.
She said she pulled into a parking lot, where David Essad continued to scream and bit her ear.
David Essad, she said, then brandished his gun and made threats to kill her.
Sabbota said if his client continues to abide by the court's requirements, he will be allowed to continue working as an officer because the felony charge was dropped.
David Essad, he said, is looking forward to settling the issue and continuing with his life
Officer accused of assault pleads guilty
By SHAUN BYRON
The Oakland Press
August 06, 2008
http://www.theoaklandpress.com/stories/080608/pol_20080806405.shtml
A former Shelby Township police officer could face jail time after pleading guilty to two counts of aggravated domestic violence and admitting to assaulting his wife.
David Essad, 34, appeared Tuesday morning before Oakland County Circuit Court Judge Shalina Kumar on charges that he beat his wife, Julie Essad, and threatened to kill her while holding a gun last April. She has since filed for divorce.
David Essad had been charged with felonious assault with a gun, a four-year felony, and aggravated domestic violence, a one-year misdemeanor.
The Oakland County Prosecutor's Office made an agreement with his attorney, Jerome Sabbota, to amend the charges in exchange for a plea.
The prosecutor's office and Kumar also had received a letter from Julie Essad, stating David Essad had been complying with court-ordered treatment for alcohol abuse and has remained sober.
Kumar also granted requests to lift a no-contact order and cancel the tether, which were all part of his bond requirements.
The requests were made by David Essad and included in his wife's letter.
David Essad will return before Kumar to be sentenced Sept. 9.
In May, Julie Essad testified at a preliminary exam in 52-3 District Court that she and her husband of 51Ú2 years had been at Gus O'Connor's in Rochester on April 11 to celebrate her birthday.
She told the court that David Essad drank heavily, became upset because she spoke to an ex-boyfriend, and began yelling and swearing at her in the car as they drove home.
Julie Essad said he repeatedly pulled her hair and banged her head against the driver's side window.
She said she pulled into a parking lot, where David Essad continued to scream and bit her ear.
David Essad, she said, then brandished his gun and making threats to kill her.
Sabbota said if his client continues to abide by the court's requirements, he will be allowed to continue working as an officer because the felony charge was dropped.
David Essad, he said, is looking forward to settling the issue and continuing with his life.
Michigan Officer Involved Domestic Violence
Thursday, August 28, 2008
08282008 - Firefighter Matthew Cook - Appeal
OIDV OFFENDER: FIREFIGHTER MATTHEW COOK [FIREFIGHTER WAYLAND FIRE DEPARTMENT]
*Also see Cook’s first appeal [to have the CSC thrown out, and argued that the Court erred in scoring an offense variable to reflect prolonged pain and humiliation inflicted by Cook towards his victim.] : http://michiganoidv.blogspot.com/2009/10/oidv-offender-appeal-firefighter.html
CHARGED WITH CHILD PORNOGRAPHY WHILE ON PROBATION FOR DOMESTIC VIOLENCE ASSAULT: [ http://michiganoidv.blogspot.com/2004/03/firefighter-matthew-cook-wayland-fd.html ].
COOK WAS CONVICTED OF ASSAULT WITH INTENT TO COMMIT SEXUAL PENETRATION; 2 COUNTS OF 3RD DEGREE CRIMINAL SEXUAL CONDUCT; GROSS INDECENCY; AND 1ST DEGREE CRIMINAL SEXUAL CONDUCT.
ON 04/04/2008, COOK WAS SENTENCED 9 YEARS TO LIFE IN PRISON.
ON 08/28/2008, COOK FILED AN APPEAL ON THE 25 POINTS HE WAS ASSESSED, WHEN HE WAS CLASSIFIED AS A "SEXUALLY DELINQUENT PERSON".
ON 12/10/2009 THE MICHIGAN COURT OF APPEALS AFFIRMED THE TRIAL COURT'S DETERMINATION OF COOK'S STATUS AS A SEXUALLY DELINQUENT PERSON, BUT VACATED HIS SENTENCES AND REMANDED THE CASE FOR RESENTENCING.
MDOC NUMBER: 496094
CURRENT STATUS: PRISONER
LOCATION: MACOMB CORRECTIONAL FACILITY
SECURITY LEVEL: II
EARLIEST RELEASE DATE: 07/18/2017
MAXIMUM DISCHARGE DATE: LIFE
SENTENCE 1:
OFFENSE: CSC- ASSAULT W/ INTENT TO COMMIT SEXUAL PENETRATION
MCL #: 750.520G1
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 5 YEARS 7 MONTHS
MAXIMUM SENTENCE: 10 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008
SENTENCE 2:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 3RD DEGREE [FORCE OR COERCION]
MCL #: 750.520D1B
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 10 YEARS 0 MONTHS
MAXIMUM SENTENCE: 15 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008
SENTENCE 3:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 3RD DEGREE [FORCE OR COERCION]
MCL #: 750.52D1B
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 10 YEARS 0 MONTHS
MAXIMUM SENTENCE: 15 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008
SENTENCE 4:
OFFENSE: GROSS INDECENCY BETWEEN MALE & FEMALE- COMMITTING / PROCURRING
MCL #: 750.338B / 750.10A
COURT FILE # : 0702979-FH
COUNTY: KENT
CONVICTION TYPE: PLEA
MINIMUM SENTENCE: 7 YEARS 0 MONTHS
MAXIMUM SENTENCE: LIFE
DATE OF OFFENSE: 03/01/2007
DATE OF SENTENCE:08/28/2007
SENTENCE 5:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 1ST DEGREE [PERSON UNDER 13] -SOLICIT
MCL #: 750.520B1A / 769.10
COURT FILE # : 0702979-FH
COUNTY: KENT
CONVICTION TYPE: PLEA
MINIMUM SENTENCE: 3 YEARS 0 MONTHS
MAXIMUM SENTENCE: 5 YEARS 0 MONTHS
DATE OF OFFENSE: 03/01/2007
DATE OF SENTENCE: 08/28/2007
**********
Matthew Cook appeals possible life sentence
By Advance Newspapers
December 21, 2009, 11:27AM
http://www.mlive.com/penaseeglobe/index.ssf/2009/12/matthew_cook_appeals_possible.html
Court of Appeals has ruled for Cook’s resentencing. Cook is currently in prison after attempting to hire a Grand Rapids prostitute to bring him a child between the ages of 10 and 12, for sexual purposes.
Cook pleaded guilty to solicitation to commit first-degree criminal sexual conduct and attempting to procure and act of gross indecency between a male and female. According to the Court of Appeals, Cook was sentenced as a “sexually delinquent person,” for seven years to life on the gross indecency conviction and as a second habitual offender, to a concurrent prison sentence of three to five years for the solicitation conviction. He was sentenced for the March 1, 2008 offense on Aug. 28, 2008.
On Dec. 10, the State of Michigan Court of Appeals ruled in favor of Cook’s resentencing because of errors in procedural requirements regarding Cook’s sexual delinquency determination.
A former Wayland volunteer firefighter, Cook served jail time for using a computer at the city’s Public Safety Building to access child sexually abusive material on the Internet.
Cook also has three active prison sentences for Allegan County CSC offenses committed on April 1, 2004, for which he was sentenced on April 4, 2008 after a jury trial. He is serving up to 10 years for CSC assault with intent to commit sexual penetration, up to 15 years for CSC 3rd degree (force or coercion) and up 15 years for CSC 3rd degree (force or coercion).
**********
MICHIGAN COURT OF APPEALS
PEOPLE OF MI
V
MATTHEW THOMAS COOK
COA Case Number: 287411
SCt Case Number: 137691
1 PEOPLE OF MI PL-AE PRS
(25386) MCMORROW TIMOTHY K
82 IONIA AVENUE NW
SUITE 450
GRAND RAPIDS MI 49503
616-632-6710
Oral Argument:
Timely: Y
2 COOK MATTHEW THOMAS DF-AT SAD
(35933) DAGHER-MARGOSIAN JEANICE
101 N WASHINGTON
14TH FLOOR
LANSING MI 48913
517-334-6069
Oral Argument: Y
Timely: Y
Status: Case Concluded; File Open
SCT Status: CLOSE 01
Case Flags: Guilty Plea; Proposal B Appeal
08/28/2008 -1- Delayed App for Leave - Criminal
Proof Of Service Date: 8/28/2008
Register of Actions: Y
Answer Due: 9/18/2008
Fee Code: PI
Attorney:35933 - DAGHER-MARGOSIAN JEANICE
08/28/2007: -2- Order Appealed From
From: KENT COUNTY CIRCUIT COURT
Case Number: 07-002979-FH
Trial Court Judge: 16129 KOLENDA DENNIS C
Nature of Case:
CSC-1
Gross Indecency
Criminal Miscellaneous
Habitual Offender 1st
08/28/2008: -3- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 7/9/2007 PLEA
Comments: Attached to copies
08/28/2008: -4- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 8/28/2007 SENTENCE
Comments: Attached to copies
08/28/2008: -5- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 5/9/2008 MOTION W/DRAW PLEA
Comments: Attached to copies
08/28/2008: -6- Presentence Investigation Report - Confidential
Date: 8/28/2008
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
08/28/2008: -24- Notice of Filing Transcript
Date: 8/28/2008
Hearings:
7/9/2007 plea
8/8/2007 sentence
5/9/2008 motion withdraw plea
09/23/2008: –7- Submitted On Motion Docket
Event: 1 Delayed App for Leave - Criminal
District: T Item
#: 7
10/01/2008: -8- Order: Application - Deny - Delayed App for Leave
Event: 1 Delayed App for Leave - Criminal
Panel: KJ,ETF,ELG
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Comments: ELG would Grant App, see order.
10/31/2008: -9- File Closed-Out
File Location: F
11/17/2008: -10- SCt: Application for Leave to SCt
Supreme Court No. 137691
Notice Date: 12/9/2008
Fee:
State Check No.:
For Party: 2
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
12/01/2008: -11- Supreme Court - File Sent To
File Location: Z
Comments: SC#137691
12/01/2008: -12- SCt: COA File - Received
12/08/2008: -13- SCt: Trial Court Record Received
1 files
05/29/2009: -14- SCt Order: Remand as Leave Granted
06/05/2009: -15- Record FiledComments: LCF; --SC Remand
06/05/2009: - 16 - Supreme Court - File Ret`d By - Re-Open as on Leave Granted
06/08/2009: - 17 - Correspondence Sent
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Comments: AT Brief Due 7/24/09 - Issue Limited Per MSC Order - AE Brf Due 35 Days From P/S Date of AT Brief
07/23/2009: - 25 - Brief: Appellant
Proof Of Service Date: 7/23/2009
Oral Argument Requested: Y Timely Filed: Y
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
For Party: 2 COOK MATTHEW THOMAS DF-AT
07/23/2009: - 26 - Presentence Investigation Report - Confidential
Date: 7/23/2009
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
08/28/2009: - 27 - Noticed
Record: FILED Mail Date: 8/31/2009
10/08/2009: - 31 - Prosecutor Advisory - No Brief
Attorney: 1141 - KENT COUNTY PROSECUTOR
12/01/2009: - 40 - Brief: Appellee
Proof Of Service Date: 12/1/2009
Oral Argument Requested:
Timely Filed: Y
Filed By Attorney: 25386 - MCMORROW TIMOTHY K
For Party: 1 PEOPLE OF MI PL-AE
12/02/2009: - 37 - Submitted on Case Call
District: G Item #: 16
Panel: JEM,RAB,CMM
12/10/2009: - 47- Opinion - Per Curiam - Unpublished
[SEE BELOW].
Pages: 6
Panel: JEM,RAB,CMM
Result: Affirm in Part, Vacate in Part, Remanded
Case Listing Complete.
***************
**********
**********
STATE OF MICHIGAN COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
V.
MATTHEW THOMAS COOK, Defendant-Appellant.
UNPUBLISHED
December 10, 2009
No. 287411
Kent Circuit Court
LC No. 07-002979-FH
Before: Markey, P.J., and Bandstra and Murray, JJ.
PER CURIAM.
http://coa.courts.michigan.gov/documents/OPINIONS/FINAL/COA/20091210_C287411_47_287411.OPN.PDF
Defendant pleaded guilty to solicitation to commit first-degree criminal sexual conduct, MCL 750.157b(3)(a) and MCL 750.520b(1)(a), and attempting to procure an act of gross indecency between a male and a female, MCL 750.338b. He was sentenced as a sexually delinquent person, MCL 750.10a, to a prison term of seven years to life for the gross indecency conviction, and as a second habitual offender, MCL 769.10, to a concurrent prison term of three to five years for the solicitation conviction. This Court originally denied defendant’s delayed application for leave to appeal, but our Supreme Court, in lieu of granting leave to appeal, subsequently remanded the case to this Court “for consideration, as on leave granted, of whether twenty-five points were properly assessed for OV 13 (MCL 777.43), and whether the trial court satisfied the provisions of MCL 767.61a when, without objection by the defendant, it reviewed documents but did not call witnesses in determining that the defendant was a sexually delinquent person.” People v Cook, 483 Mich 1023; 765 NW2d 342 (2009). We affirm the trial court’s determination of defendant’s status as a sexually delinquent person, but vacate his sentences and remand for resentencing.
I. Facts
As a factual basis for his plea, defendant stated that he asked a prostitute to bring him a child between ten and twelve years of age for the purpose of mutually engaging in oral sex. Defendant clarified that the prostitute’s role “was to find the child and hold her for me.”
II. Sexual Delinquency Determination
The gross indecency statute prescribes a maximum sentence of five years’ imprisonment, or, alternatively, “if such person was at the time of the said offense a sexually delinquent person,” a term of imprisonment “the minimum of which shall be 1 day and the maximum of which shall be life.” MCL 750.338b.
MCL 750.10a defines “sexually delinquent person” as:
any person whose sexual behavior is characterized by repetitive or compulsive
acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.
MCL 767.61a provides that in prosecutions exposing the defendant to an indeterminate
sentence of one day to life as a sexually delinquent person:
the indictment shall charge the offense and may also charge that the defendant
was, at the time said offense was committed, a sexually delinquent person. In
every such prosecution the people may produce expert testimony and the court
shall provide expert testimony for any indigent accused at his request. In the
event the accused shall plead guilty to both charges in such indictment, the court
in addition to the investigation provided for in section 35 of chapter 8 of this act,
and before sentencing the accused, shall conduct an examination of witnesses
relative to the sexual delinquency of such person and may call on psychiatric and
expert testimony. All testimony taken at such examination shall be taken in open
court and a typewritten transcript or copy thereof, certified by the court reporter
taking the same, shall be placed in the file of the case in the office of the county
clerk. Upon a verdict of guilty to the first charge or to both charges or upon a
plea of guilty to the first charge or to both charges the court may impose any
punishment provided by law for such offense. [Footnote omitted; emphasis added.]
In this case, after placing defendant under oath, the trial court advised defendant at the plea proceeding that he was alleged to be a sexually delinquent person, and asked defendant if he understood all the allegations against him, and defendant answered in the affirmative. Defendant then pleaded guilty to the crimes charged, including to being a sexually delinquent person. After establishing the factual basis for the underlying offenses, the court stated that the sexually delinquent person statute “specifies the taking of evidence to decide whether someone is sexually delinquent.” The court acknowledged defendant’s earlier conviction of possession of child sexually abusive material, read a letter defendant had written, and considered defendant’s testimony that was used to establish the factual basis for the plea. Citing the statutory definition of “sexually delinquent person,” the court stated:
[T]he use of force upon another person in attempting sexual relations applies, as does the commission of sexual aggressions against children under the age of 16.
Here, we don’t have any actual aggression of a child of that age, just a desire for it. . . . I guess we don’t have any actual force, because we never did have any acts here. But, we have an admission of a plan to engage in both of the
latter kinds of activities. And, a letter here which lays out in great detail a desire to do that. Not only a desire to do it, but it becomes very apparent from reading this letter that the desire to do it is repetitive. He’s proposing to do lots of things here, and clearly shows a sexual compulsion well beyond that involved in the act, itself.
The law says I have to take evidence, but it doesn’t say of what kind. I haven’t heard any objection from anybody to the use of this evidence. So, I’m prepared to conclude that the definition in section 10a of the Penal Code has been proven in a way required by section 61a of the Code of Criminal Procedure.
***
I also think, frankly, solid evidence of what constitutes the kind of compulsion we’re talking about here as the earlier conviction for utilizing a computer to take advantage of child sexually abusive material. That that act, in and of itself and the use of that kind of material, supports findings that would satisfy section 10a.
A trial court’s general conduct of trial is reviewed for an abuse of discretion. See People v Romano, 181 Mich App 204, 220; 448 NW2d 795 (1989); People v Collier, 168 Mich App 687, 698; 425 NW2d 118 (1988). Statutory interpretation presents a question of law, calling for de novo review. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997). At the plea proceeding, defense counsel answered affirmatively when the trial court asked if it had satisfied the procedural requirements for making the sexual delinquency determination, thus leaving this
issue unpreserved. Unpreserved issues are reviewed for plain error affecting substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
In People v Helzer, 404 Mich 410, 418-419; 273 NW2d 44 (1978), our Supreme Court
addressed the procedure under MCL 767.61a for determining a defendant’s status as a sexually delinquent person in conjunction with a conviction of gross indecency, stating:
It is . . . clear that proof of the sexual delinquency charge may involve more than simple ministerial considerations. Very broad substantive factors come into play when the court or jury decide this question. MCL 767.61a provides for a separate hearing and record, involving psychiatric and expert testimony on the question. Even where defendant pleads guilty, the court is ordered to separately investigate the charge of sexual delinquency. [Footnotes and citation omitted.]
The Court also stated that although MCL 767.61a does not expressly call for it, “we find a separate hearing and record directed by clear implication,” and that “the alternate nature of the sentence requires a hearing and record before a separate jury in cases where defendant does not waive jury trial,” expressing the concern that the jury that decided the underlying charge might tend automatically to also find sexual delinquency. Id. at 419 n 13, 422-423 (emphasis in the original). Although the instant case arises from a guilty plea, the Supreme Court’s insistence that, in a case involving a jury trial, the delinquency question must be decided in a wholly separate proceeding before a new jury underscores the importance of deciding the delinquency question as something apart from the indecency question.
Here, the trial court conducted a hearing on whether defendant was a sexually delinquent person, specifically noting its obligation to take evidence on the issue. As noted, the trial court did take evidence on this issue, and there was no request by either party for the submission of additional evidence. The record and findings were transcribed and placed in the record. Thus, the statute was satisfied.
However, even if it were not, a reviewing court should not reverse over an unpreserved error unless defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Carines, supra at 763. The error in this case does not meet this standard. Defendant protests that there were no witnesses, but defendant himself was placed under oath, and he confirmed that he was a sexually delinquent person.1 The court also took into account an earlier conviction involving child sexually abusive material, and a letter in which defendant admitted having the desire to engage in sex with underage persons. In light of the guilty plea and lack of objections, this evidentiary record is more than sufficient to establish defendant’s status as a sexually delinquent person.
III. Scoring of Offense Variable 13
“This Court reviews a sentencing court’s scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003). However, to the extent that a scoring issue calls for statutory interpretation, review is de novo. Id.
“This Court will uphold the trial court’s scoring of the guidelines if there is evidence to support it.” People v Phillips, 251 Mich App 100, 108; 649 NW2d 407 (2002), aff’d 469 Mich 390 (2003). Factual findings for sentencing purposes require a mere preponderance of the evidence. See People v Ewing (After Remand), 435 Mich 443, 472-473; 458 NW2d 880 (1990) (Boyle, J., joined by Riley, C.J., and Griffin, J.). Information relied upon may come from various sources, including some that would not be admissible at trial, such as a presentence investigation report (“PSIR”). People v Potrafka, 140 Mich App 749, 751-752; 366 NW2d 35 (1985). See also MRE 1101(b)(3) (the rules of evidence do not apply to sentencing proceedings).
But a criminal defendant has a due process right to be sentenced on the basis of accurate information. People v Hoyt, 185 Mich App 531, 533; 462 NW2d 793 (1990), citing US Const, Am XIV and Const 1963, art 1, § 17. Accordingly, where the guidelines range is adjusted to account for a scoring error, but the original minimum sentence remains within the corrected range, resentencing is required because such a “misapprehension of the guidelines range” constitutes a sentencing decision “in reliance upon inaccurate information.” People v Francisco, 474 Mich 82, 88, 89 n 7; 711 NW2d 44 (2006); MCL 769.34(10).
OV 13 concerns continuing patterns of criminal behavior. MCL 777.43(1). The trial
court scored OV 13 at 25 points, which is prescribed where the offense in question “was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(b). In scoring that variable, a court may take into account the sentencing offense along with other convictions stemming from the defendant’s course of conduct. People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). Defendant concedes that his earlier conviction of possession of child sexually abusive material qualifies as a felony against a person for purposes of scoring OV 13, but argues that this is the only such felony against a person in his record. Defendant is correct, as soliciting to commit first-degree criminal sexual conduct is classified as a crime against public order, not one against a person. MCL 777.16h. The same is true for gross indecency on the part of a sexually delinquent person. MCL 777.16q. Thus, neither of the instant convictions qualifies as one against a person for purposes of scoring OV 13.
At sentencing, the trial court spoke of having on hand the parent of a child who might have served as a bad-acts witness, who in turn complained of defendant’s “gross and disgusting” behavior in connection with her ten-year old daughter. Indeed, plaintiff had filed a notice of intent to use other acts evidence, which referred to prior sexual acts with a child. However, the record does not indicate precisely what form that behavior, or attendant sexual activity, took, and thus does not indicate whether it constituted a felony against a person for purposes of scoring OV 13.
The PSIR notes that defendant pleaded guilty as part of a plea agreement in which a
separate charge of second-degree criminal sexual conduct was dismissed. But there is no indication that the trial court considered that charge, or found that factual support for the charge was established by a preponderance of the evidence, so it would be premature for us to decide if that matter constitutes a sufficient basis for finding a felony against a person for purposes of scoring OV 13. In any event, even if that matter could be considered, the current record still does not support a finding that defendant committed three or more crimes against a person for purposes of assessing 25 points for OV 13.
Accordingly, because the current record does not support a 25-point score for OV 13, and because a 25-point reduction in defendant’s total OV score affects the appropriate guidelines range, we vacate defendant’s sentences and remand for resentencing.*2
Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction. /s/ Jane E. Markey
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
*1 Furthermore, defendant’s brief on appeal includes no assertion, let alone an offer of proof, that he was not aware of all his rights when tendering his plea, or that he would have called witnesses, or otherwise opposed the sexual delinquency charge, had he been afforded additional opportunities to do so.
*2 We do not foreclose the possibility that, on remand, the trial court might discover and articulate proper bases for counting uncharged felonies in connection with the potential bad-acts witness, or the dismissed second-degree criminal sexual conduct charge, thereby establishing an adequate basis to score 25 points for OV 13.
MIOIDV. Renee' Harrington. Michigan Officer Involved Domestic Violence.
*Also see Cook’s first appeal [to have the CSC thrown out, and argued that the Court erred in scoring an offense variable to reflect prolonged pain and humiliation inflicted by Cook towards his victim.] : http://michiganoidv.blogspot.com/2009/10/oidv-offender-appeal-firefighter.html
CHARGED WITH CHILD PORNOGRAPHY WHILE ON PROBATION FOR DOMESTIC VIOLENCE ASSAULT: [ http://michiganoidv.blogspot.com/2004/03/firefighter-matthew-cook-wayland-fd.html ].
COOK WAS CONVICTED OF ASSAULT WITH INTENT TO COMMIT SEXUAL PENETRATION; 2 COUNTS OF 3RD DEGREE CRIMINAL SEXUAL CONDUCT; GROSS INDECENCY; AND 1ST DEGREE CRIMINAL SEXUAL CONDUCT.
ON 04/04/2008, COOK WAS SENTENCED 9 YEARS TO LIFE IN PRISON.
ON 08/28/2008, COOK FILED AN APPEAL ON THE 25 POINTS HE WAS ASSESSED, WHEN HE WAS CLASSIFIED AS A "SEXUALLY DELINQUENT PERSON".
ON 12/10/2009 THE MICHIGAN COURT OF APPEALS AFFIRMED THE TRIAL COURT'S DETERMINATION OF COOK'S STATUS AS A SEXUALLY DELINQUENT PERSON, BUT VACATED HIS SENTENCES AND REMANDED THE CASE FOR RESENTENCING.
MDOC NUMBER: 496094
CURRENT STATUS: PRISONER
LOCATION: MACOMB CORRECTIONAL FACILITY
SECURITY LEVEL: II
EARLIEST RELEASE DATE: 07/18/2017
MAXIMUM DISCHARGE DATE: LIFE
SENTENCE 1:
OFFENSE: CSC- ASSAULT W/ INTENT TO COMMIT SEXUAL PENETRATION
MCL #: 750.520G1
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 5 YEARS 7 MONTHS
MAXIMUM SENTENCE: 10 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008
SENTENCE 2:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 3RD DEGREE [FORCE OR COERCION]
MCL #: 750.520D1B
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 10 YEARS 0 MONTHS
MAXIMUM SENTENCE: 15 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008
SENTENCE 3:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 3RD DEGREE [FORCE OR COERCION]
MCL #: 750.52D1B
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 10 YEARS 0 MONTHS
MAXIMUM SENTENCE: 15 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008
SENTENCE 4:
OFFENSE: GROSS INDECENCY BETWEEN MALE & FEMALE- COMMITTING / PROCURRING
MCL #: 750.338B / 750.10A
COURT FILE # : 0702979-FH
COUNTY: KENT
CONVICTION TYPE: PLEA
MINIMUM SENTENCE: 7 YEARS 0 MONTHS
MAXIMUM SENTENCE: LIFE
DATE OF OFFENSE: 03/01/2007
DATE OF SENTENCE:08/28/2007
SENTENCE 5:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 1ST DEGREE [PERSON UNDER 13] -SOLICIT
MCL #: 750.520B1A / 769.10
COURT FILE # : 0702979-FH
COUNTY: KENT
CONVICTION TYPE: PLEA
MINIMUM SENTENCE: 3 YEARS 0 MONTHS
MAXIMUM SENTENCE: 5 YEARS 0 MONTHS
DATE OF OFFENSE: 03/01/2007
DATE OF SENTENCE: 08/28/2007
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Matthew Cook appeals possible life sentence
By Advance Newspapers
December 21, 2009, 11:27AM
http://www.mlive.com/penaseeglobe/index.ssf/2009/12/matthew_cook_appeals_possible.html
Court of Appeals has ruled for Cook’s resentencing. Cook is currently in prison after attempting to hire a Grand Rapids prostitute to bring him a child between the ages of 10 and 12, for sexual purposes.
Cook pleaded guilty to solicitation to commit first-degree criminal sexual conduct and attempting to procure and act of gross indecency between a male and female. According to the Court of Appeals, Cook was sentenced as a “sexually delinquent person,” for seven years to life on the gross indecency conviction and as a second habitual offender, to a concurrent prison sentence of three to five years for the solicitation conviction. He was sentenced for the March 1, 2008 offense on Aug. 28, 2008.
On Dec. 10, the State of Michigan Court of Appeals ruled in favor of Cook’s resentencing because of errors in procedural requirements regarding Cook’s sexual delinquency determination.
A former Wayland volunteer firefighter, Cook served jail time for using a computer at the city’s Public Safety Building to access child sexually abusive material on the Internet.
Cook also has three active prison sentences for Allegan County CSC offenses committed on April 1, 2004, for which he was sentenced on April 4, 2008 after a jury trial. He is serving up to 10 years for CSC assault with intent to commit sexual penetration, up to 15 years for CSC 3rd degree (force or coercion) and up 15 years for CSC 3rd degree (force or coercion).
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MICHIGAN COURT OF APPEALS
PEOPLE OF MI
V
MATTHEW THOMAS COOK
COA Case Number: 287411
SCt Case Number: 137691
1 PEOPLE OF MI PL-AE PRS
(25386) MCMORROW TIMOTHY K
82 IONIA AVENUE NW
SUITE 450
GRAND RAPIDS MI 49503
616-632-6710
Oral Argument:
Timely: Y
2 COOK MATTHEW THOMAS DF-AT SAD
(35933) DAGHER-MARGOSIAN JEANICE
101 N WASHINGTON
14TH FLOOR
LANSING MI 48913
517-334-6069
Oral Argument: Y
Timely: Y
Status: Case Concluded; File Open
SCT Status: CLOSE 01
Case Flags: Guilty Plea; Proposal B Appeal
08/28/2008 -1- Delayed App for Leave - Criminal
Proof Of Service Date: 8/28/2008
Register of Actions: Y
Answer Due: 9/18/2008
Fee Code: PI
Attorney:35933 - DAGHER-MARGOSIAN JEANICE
08/28/2007: -2- Order Appealed From
From: KENT COUNTY CIRCUIT COURT
Case Number: 07-002979-FH
Trial Court Judge: 16129 KOLENDA DENNIS C
Nature of Case:
CSC-1
Gross Indecency
Criminal Miscellaneous
Habitual Offender 1st
08/28/2008: -3- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 7/9/2007 PLEA
Comments: Attached to copies
08/28/2008: -4- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 8/28/2007 SENTENCE
Comments: Attached to copies
08/28/2008: -5- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 5/9/2008 MOTION W/DRAW PLEA
Comments: Attached to copies
08/28/2008: -6- Presentence Investigation Report - Confidential
Date: 8/28/2008
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
08/28/2008: -24- Notice of Filing Transcript
Date: 8/28/2008
Hearings:
7/9/2007 plea
8/8/2007 sentence
5/9/2008 motion withdraw plea
09/23/2008: –7- Submitted On Motion Docket
Event: 1 Delayed App for Leave - Criminal
District: T Item
#: 7
10/01/2008: -8- Order: Application - Deny - Delayed App for Leave
Event: 1 Delayed App for Leave - Criminal
Panel: KJ,ETF,ELG
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Comments: ELG would Grant App, see order.
10/31/2008: -9- File Closed-Out
File Location: F
11/17/2008: -10- SCt: Application for Leave to SCt
Supreme Court No. 137691
Notice Date: 12/9/2008
Fee:
State Check No.:
For Party: 2
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
12/01/2008: -11- Supreme Court - File Sent To
File Location: Z
Comments: SC#137691
12/01/2008: -12- SCt: COA File - Received
12/08/2008: -13- SCt: Trial Court Record Received
1 files
05/29/2009: -14- SCt Order: Remand as Leave Granted
06/05/2009: -15- Record FiledComments: LCF; --SC Remand
06/05/2009: - 16 - Supreme Court - File Ret`d By - Re-Open as on Leave Granted
06/08/2009: - 17 - Correspondence Sent
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Comments: AT Brief Due 7/24/09 - Issue Limited Per MSC Order - AE Brf Due 35 Days From P/S Date of AT Brief
07/23/2009: - 25 - Brief: Appellant
Proof Of Service Date: 7/23/2009
Oral Argument Requested: Y Timely Filed: Y
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
For Party: 2 COOK MATTHEW THOMAS DF-AT
07/23/2009: - 26 - Presentence Investigation Report - Confidential
Date: 7/23/2009
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
08/28/2009: - 27 - Noticed
Record: FILED Mail Date: 8/31/2009
10/08/2009: - 31 - Prosecutor Advisory - No Brief
Attorney: 1141 - KENT COUNTY PROSECUTOR
12/01/2009: - 40 - Brief: Appellee
Proof Of Service Date: 12/1/2009
Oral Argument Requested:
Timely Filed: Y
Filed By Attorney: 25386 - MCMORROW TIMOTHY K
For Party: 1 PEOPLE OF MI PL-AE
12/02/2009: - 37 - Submitted on Case Call
District: G Item #: 16
Panel: JEM,RAB,CMM
12/10/2009: - 47- Opinion - Per Curiam - Unpublished
[SEE BELOW].
Pages: 6
Panel: JEM,RAB,CMM
Result: Affirm in Part, Vacate in Part, Remanded
Case Listing Complete.
***************
**********
**********
STATE OF MICHIGAN COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
V.
MATTHEW THOMAS COOK, Defendant-Appellant.
UNPUBLISHED
December 10, 2009
No. 287411
Kent Circuit Court
LC No. 07-002979-FH
Before: Markey, P.J., and Bandstra and Murray, JJ.
PER CURIAM.
http://coa.courts.michigan.gov/documents/OPINIONS/FINAL/COA/20091210_C287411_47_287411.OPN.PDF
Defendant pleaded guilty to solicitation to commit first-degree criminal sexual conduct, MCL 750.157b(3)(a) and MCL 750.520b(1)(a), and attempting to procure an act of gross indecency between a male and a female, MCL 750.338b. He was sentenced as a sexually delinquent person, MCL 750.10a, to a prison term of seven years to life for the gross indecency conviction, and as a second habitual offender, MCL 769.10, to a concurrent prison term of three to five years for the solicitation conviction. This Court originally denied defendant’s delayed application for leave to appeal, but our Supreme Court, in lieu of granting leave to appeal, subsequently remanded the case to this Court “for consideration, as on leave granted, of whether twenty-five points were properly assessed for OV 13 (MCL 777.43), and whether the trial court satisfied the provisions of MCL 767.61a when, without objection by the defendant, it reviewed documents but did not call witnesses in determining that the defendant was a sexually delinquent person.” People v Cook, 483 Mich 1023; 765 NW2d 342 (2009). We affirm the trial court’s determination of defendant’s status as a sexually delinquent person, but vacate his sentences and remand for resentencing.
I. Facts
As a factual basis for his plea, defendant stated that he asked a prostitute to bring him a child between ten and twelve years of age for the purpose of mutually engaging in oral sex. Defendant clarified that the prostitute’s role “was to find the child and hold her for me.”
II. Sexual Delinquency Determination
The gross indecency statute prescribes a maximum sentence of five years’ imprisonment, or, alternatively, “if such person was at the time of the said offense a sexually delinquent person,” a term of imprisonment “the minimum of which shall be 1 day and the maximum of which shall be life.” MCL 750.338b.
MCL 750.10a defines “sexually delinquent person” as:
any person whose sexual behavior is characterized by repetitive or compulsive
acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.
MCL 767.61a provides that in prosecutions exposing the defendant to an indeterminate
sentence of one day to life as a sexually delinquent person:
the indictment shall charge the offense and may also charge that the defendant
was, at the time said offense was committed, a sexually delinquent person. In
every such prosecution the people may produce expert testimony and the court
shall provide expert testimony for any indigent accused at his request. In the
event the accused shall plead guilty to both charges in such indictment, the court
in addition to the investigation provided for in section 35 of chapter 8 of this act,
and before sentencing the accused, shall conduct an examination of witnesses
relative to the sexual delinquency of such person and may call on psychiatric and
expert testimony. All testimony taken at such examination shall be taken in open
court and a typewritten transcript or copy thereof, certified by the court reporter
taking the same, shall be placed in the file of the case in the office of the county
clerk. Upon a verdict of guilty to the first charge or to both charges or upon a
plea of guilty to the first charge or to both charges the court may impose any
punishment provided by law for such offense. [Footnote omitted; emphasis added.]
In this case, after placing defendant under oath, the trial court advised defendant at the plea proceeding that he was alleged to be a sexually delinquent person, and asked defendant if he understood all the allegations against him, and defendant answered in the affirmative. Defendant then pleaded guilty to the crimes charged, including to being a sexually delinquent person. After establishing the factual basis for the underlying offenses, the court stated that the sexually delinquent person statute “specifies the taking of evidence to decide whether someone is sexually delinquent.” The court acknowledged defendant’s earlier conviction of possession of child sexually abusive material, read a letter defendant had written, and considered defendant’s testimony that was used to establish the factual basis for the plea. Citing the statutory definition of “sexually delinquent person,” the court stated:
[T]he use of force upon another person in attempting sexual relations applies, as does the commission of sexual aggressions against children under the age of 16.
Here, we don’t have any actual aggression of a child of that age, just a desire for it. . . . I guess we don’t have any actual force, because we never did have any acts here. But, we have an admission of a plan to engage in both of the
latter kinds of activities. And, a letter here which lays out in great detail a desire to do that. Not only a desire to do it, but it becomes very apparent from reading this letter that the desire to do it is repetitive. He’s proposing to do lots of things here, and clearly shows a sexual compulsion well beyond that involved in the act, itself.
The law says I have to take evidence, but it doesn’t say of what kind. I haven’t heard any objection from anybody to the use of this evidence. So, I’m prepared to conclude that the definition in section 10a of the Penal Code has been proven in a way required by section 61a of the Code of Criminal Procedure.
***
I also think, frankly, solid evidence of what constitutes the kind of compulsion we’re talking about here as the earlier conviction for utilizing a computer to take advantage of child sexually abusive material. That that act, in and of itself and the use of that kind of material, supports findings that would satisfy section 10a.
A trial court’s general conduct of trial is reviewed for an abuse of discretion. See People v Romano, 181 Mich App 204, 220; 448 NW2d 795 (1989); People v Collier, 168 Mich App 687, 698; 425 NW2d 118 (1988). Statutory interpretation presents a question of law, calling for de novo review. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997). At the plea proceeding, defense counsel answered affirmatively when the trial court asked if it had satisfied the procedural requirements for making the sexual delinquency determination, thus leaving this
issue unpreserved. Unpreserved issues are reviewed for plain error affecting substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
In People v Helzer, 404 Mich 410, 418-419; 273 NW2d 44 (1978), our Supreme Court
addressed the procedure under MCL 767.61a for determining a defendant’s status as a sexually delinquent person in conjunction with a conviction of gross indecency, stating:
It is . . . clear that proof of the sexual delinquency charge may involve more than simple ministerial considerations. Very broad substantive factors come into play when the court or jury decide this question. MCL 767.61a provides for a separate hearing and record, involving psychiatric and expert testimony on the question. Even where defendant pleads guilty, the court is ordered to separately investigate the charge of sexual delinquency. [Footnotes and citation omitted.]
The Court also stated that although MCL 767.61a does not expressly call for it, “we find a separate hearing and record directed by clear implication,” and that “the alternate nature of the sentence requires a hearing and record before a separate jury in cases where defendant does not waive jury trial,” expressing the concern that the jury that decided the underlying charge might tend automatically to also find sexual delinquency. Id. at 419 n 13, 422-423 (emphasis in the original). Although the instant case arises from a guilty plea, the Supreme Court’s insistence that, in a case involving a jury trial, the delinquency question must be decided in a wholly separate proceeding before a new jury underscores the importance of deciding the delinquency question as something apart from the indecency question.
Here, the trial court conducted a hearing on whether defendant was a sexually delinquent person, specifically noting its obligation to take evidence on the issue. As noted, the trial court did take evidence on this issue, and there was no request by either party for the submission of additional evidence. The record and findings were transcribed and placed in the record. Thus, the statute was satisfied.
However, even if it were not, a reviewing court should not reverse over an unpreserved error unless defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Carines, supra at 763. The error in this case does not meet this standard. Defendant protests that there were no witnesses, but defendant himself was placed under oath, and he confirmed that he was a sexually delinquent person.1 The court also took into account an earlier conviction involving child sexually abusive material, and a letter in which defendant admitted having the desire to engage in sex with underage persons. In light of the guilty plea and lack of objections, this evidentiary record is more than sufficient to establish defendant’s status as a sexually delinquent person.
III. Scoring of Offense Variable 13
“This Court reviews a sentencing court’s scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003). However, to the extent that a scoring issue calls for statutory interpretation, review is de novo. Id.
“This Court will uphold the trial court’s scoring of the guidelines if there is evidence to support it.” People v Phillips, 251 Mich App 100, 108; 649 NW2d 407 (2002), aff’d 469 Mich 390 (2003). Factual findings for sentencing purposes require a mere preponderance of the evidence. See People v Ewing (After Remand), 435 Mich 443, 472-473; 458 NW2d 880 (1990) (Boyle, J., joined by Riley, C.J., and Griffin, J.). Information relied upon may come from various sources, including some that would not be admissible at trial, such as a presentence investigation report (“PSIR”). People v Potrafka, 140 Mich App 749, 751-752; 366 NW2d 35 (1985). See also MRE 1101(b)(3) (the rules of evidence do not apply to sentencing proceedings).
But a criminal defendant has a due process right to be sentenced on the basis of accurate information. People v Hoyt, 185 Mich App 531, 533; 462 NW2d 793 (1990), citing US Const, Am XIV and Const 1963, art 1, § 17. Accordingly, where the guidelines range is adjusted to account for a scoring error, but the original minimum sentence remains within the corrected range, resentencing is required because such a “misapprehension of the guidelines range” constitutes a sentencing decision “in reliance upon inaccurate information.” People v Francisco, 474 Mich 82, 88, 89 n 7; 711 NW2d 44 (2006); MCL 769.34(10).
OV 13 concerns continuing patterns of criminal behavior. MCL 777.43(1). The trial
court scored OV 13 at 25 points, which is prescribed where the offense in question “was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(b). In scoring that variable, a court may take into account the sentencing offense along with other convictions stemming from the defendant’s course of conduct. People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). Defendant concedes that his earlier conviction of possession of child sexually abusive material qualifies as a felony against a person for purposes of scoring OV 13, but argues that this is the only such felony against a person in his record. Defendant is correct, as soliciting to commit first-degree criminal sexual conduct is classified as a crime against public order, not one against a person. MCL 777.16h. The same is true for gross indecency on the part of a sexually delinquent person. MCL 777.16q. Thus, neither of the instant convictions qualifies as one against a person for purposes of scoring OV 13.
At sentencing, the trial court spoke of having on hand the parent of a child who might have served as a bad-acts witness, who in turn complained of defendant’s “gross and disgusting” behavior in connection with her ten-year old daughter. Indeed, plaintiff had filed a notice of intent to use other acts evidence, which referred to prior sexual acts with a child. However, the record does not indicate precisely what form that behavior, or attendant sexual activity, took, and thus does not indicate whether it constituted a felony against a person for purposes of scoring OV 13.
The PSIR notes that defendant pleaded guilty as part of a plea agreement in which a
separate charge of second-degree criminal sexual conduct was dismissed. But there is no indication that the trial court considered that charge, or found that factual support for the charge was established by a preponderance of the evidence, so it would be premature for us to decide if that matter constitutes a sufficient basis for finding a felony against a person for purposes of scoring OV 13. In any event, even if that matter could be considered, the current record still does not support a finding that defendant committed three or more crimes against a person for purposes of assessing 25 points for OV 13.
Accordingly, because the current record does not support a 25-point score for OV 13, and because a 25-point reduction in defendant’s total OV score affects the appropriate guidelines range, we vacate defendant’s sentences and remand for resentencing.*2
Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction. /s/ Jane E. Markey
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
*1 Furthermore, defendant’s brief on appeal includes no assertion, let alone an offer of proof, that he was not aware of all his rights when tendering his plea, or that he would have called witnesses, or otherwise opposed the sexual delinquency charge, had he been afforded additional opportunities to do so.
*2 We do not foreclose the possibility that, on remand, the trial court might discover and articulate proper bases for counting uncharged felonies in connection with the potential bad-acts witness, or the dismissed second-degree criminal sexual conduct charge, thereby establishing an adequate basis to score 25 points for OV 13.
MIOIDV. Renee' Harrington. Michigan Officer Involved Domestic Violence.
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