.2103011111550.jpg)
Michigan Criminal Sexual Conduct (CSC) charges have four basic Degrees (and there are a limited number of other Michigan Sex Crimes not referred to as "CSC"). Learning the maximum penalty for each of the Degrees of Criminal Sexual Conduct is a simple matter of a quick internet search.
But if you are sentenced for CSC in Michigan (either because you take a plea deal or are found guilty at trial), does the Judge just arbitrarily pick any number up to the maximum? No, absent a departure for specific reasons, the Judge follows the Michigan Sentencing Guidelines, which determine the minimum sentence a person serves before they become eligible for release from incarceration. The maximum penalties set by statute only define the absolute longest someone can serve for each Degree of CSC.
The unfortunate part is, calculating Sentencing Guidelines is complex and confusing. In reality, this isn't something you should do on your own if the results are to be relied upon - only a qualified Michigan Criminal Sexual Conduct Attorney should calculate the Guidelines for their client.
DISCLAIMER: Unless you are a lawyer with experience in calculating Guidelines, you simply are NOT likely to get them correct. The purpose of this writing is to give a general idea of how the formula works, but there are simply too many rules, exceptions to the rules, case law considerations, nuances, and other complications for the inexperienced to be likely to get it right. You should only rely on the calculation of an experienced lawyer who knows all relevant information about your case, which takes a significant amount of time to gather. We calculate Guidelines for our clients after we have discovery, and they can change as new information comes out.
That being said, here's how to begin to understand the process of calculating Sentencing Guidelines:
1) Open up a copy of the PDF of the current Michigan Sentencing Guidelines Manual.
The current version of this Manual as of the date of this writing contains 228 pages, and we will refer to its page numbers.
2) Read the Instructions on p. 5 - 22 of the PDF.
If you are going to make any attempt to understand how Guidelines work, it is well worth it to simply read all of the instructions, because they really do explain the entire process of scoring, although they're likely going to be difficult for someone who is not an experienced Criminal Defense Attorney to understand, and the steps set forth in the PDF are in a slightly different order than they are presented here on this page.
3) Rank all Counts of Criminal Sexual Conduct you are charged with from most to least serious.
Here they are, ranked as such with First Degree CSC as the most serious:
- First Degree Criminal Sexual Conduct (MCL 750.520b) - punishable by up to LIFE (some mandatory minimums)
- Second Degree Criminal Sexual Conduct (MCL 750.520c) - punishable by up to 15 years
- Third Degree Criminal Sexual Conduct (MCL 750.520d) - punishable by up to 15 years
- Fourth Degree Criminal Sexual Conduct (MCL 750.520e) - punishable by up to 2 years
When you calculate your Guidelines, everything will be based off o the most serious charge you are facing.
RELATED: click here to learn about the penalty for First Degree CSC in Michigan.
4) Calculate the Prior Record Variables (PRVs).
All Michigan CSC crimes belong to the Crime Group called "Crimes Against a Person" (as opposed to property crimes, controlled substance crimes, etc.). Go to page 23 - 28 in the PDF. This is where the seven "Prior Record Variables" (or "PRVs" for short) are scored for Crimes Against a Person such as all types of Criminal Sexual Conduct.
Before you begin scoring the PRVs, you'll need to write down a list of every criminal conviction you've ever had (adult and juvenile), including the dates of the offense and the date you were sentenced. The public version of this information can be obtained by paying $10 on the Michigan State Police Internet Criminal History Access Tool (ICHAT). However, the public version may not include everything, and it will not include juvenile "adjudications"
Once you've finished compiling your criminal history, if any, read the instructions on p. 23 - 28 for each of the the seven PRVs will call upon you to figure out if each incident in your history should be counted, which PRV it belongs to (1 - 7), and how many points it deserves. In order to do this, any felony convictions or juvenile adjudications will need to be classified as either "high severity" or "low severity." You do this by reading the definitions beginning at the bottom of p. 19 through the top of p. 21 of the Sentencing Guidelines Manual.
Basically, you'll see that every crime under Michigan law (not counting Murder) is part of one of eight categories called a "Crime Class" (A, B, C, D, E, F, G, and H). For the most part (you'll need to read the definitions on p. 19 - 21 because there are simply too many rules, nuances, exceptions to the rules, etc. to explain here), you'll see that a felony crime that falls into Crime Class A, B, C, or D is considered "high severity," and E, F, G, and H are considered "low severity."
As you can see, once you figure out whether each of your prior felony convictions and juvenile adjudications are "high severity" or "low severity," you can categorize each prior in the correct PRV (PRV 1, 2, 3, or 4), and you assign the appropriate points value depending on how many priors go toward that PRV. For example, if you have 2 prior "high severity" felony convictions, you can see on p. 23 of the PDF that the appropriate amount of points for PRV 1 is 50.
When you get to PRV 5, Misdemeanors, you can see that the instructions on p. 26 explain what Misdemeanors are and are not counted. As with PRV 1 - 4, assign the appropriate amount of points to the best of your ability.
NOTE: Proper scoring for Attempted crimes is beyond the scope of this article.
PRV 6 on p. 27 of the PDF gives points for your status, if any, within the criminal justice system at the time the Sentencing offense was "committed." Were you on Bond in any Court? On Probation somewhere? Read the instructions to the best of your ability and assign the appropriate amount of points for PRV 6. Note that we realize that you may be absolutely INNOCENT of the Criminal Sexual Conduct charge or charges you're facing, but when scoring Guidelines, we have to pretend the Defendant is has been found guilty or is pleading to the (perhaps reduced) Sentencing offense, otherwise, there's no point to scoring Guidelines if there will be no Sentence for anything.
PRV 7 deals with "Subsequent or Concurrent Felony Convictions." This can be very confusing. What PRV 7 is essentially saying is, when you score your Guidelines, you are "scoring" them for the most serious felony charge you are facing - if you're reading this, we assume that is one of the Degrees of Criminal Sexual Conduct.
You might be facing 4 charges or "Counts," but you only score the Guidelines for the most serious one that you are convicted of or pleading to. But what if you're facing one Count of Criminal Sexual Conduct 1st Degree and three Counts of Criminal Sexual Conduct 2nd Degree, and you go to trial and are found guilty of 1st Degree CSC and two out of the remaining thee counts of 2nd Degree CSC? PRV 7 is what addresses this. The "scoring" offense, the most serious one, is the 1st Degree CSC, and the two convicted Counts of 2nd Degree CSC are considered "Concurrent" felony convictions, so reading the instructions on p. 28 of the PDF, you'd assign 20 points for PRV 7.
Thus, you can see how in a case where multiple Counts are charged, you may need to score the Guidelines several times over under various "if, then" outcomes that could happen at trial.
Overall, you want to keep a running total of all points for all seven PRVs. This is called the "PRV total."
We could go on forever with the nuances and special considerations of scoring PRVs, but for now, just one final note on scoring PRVs: as you've read in the PDF, there is something called a "10 year gap" rule. In order for any prior to be counted for PRV 1 - 5, it has to be recent enough in time to the next prior that comes after it in the chronology of your history. If more than 10 years passed between the date of discharge from your sentence for one prior and the date the next prior was committed (not charged, plead, sentenced, etc.), then the "chain" has been "broken," and the earlier prior (and any priors even before that one), are not counted.
For example, if someone has a prior conviction for Criminal Sexual Conduct 3rd Degree (a "high severity" felony under PRV 1), was discharged from that sentence on January 1, 2004, but then committed another CSC (or other crime) on January 2, 2014, the older Criminal Sexual Conduct 3rd Degree is not counted for PRV 1, or any PRV, because enough time passed (just barely) that the chain has been broken. But had that newer CSC been committed on December 31, 2013 instead, the older 3rd Degree conviction would be counted as a prior "high severity" felony, thereby increasing the points for PRV 1, and so on...
5) Calculate the Offense Variables (OVs).
Beginning on p. 29 of the PDF, the task switches from calculating points due to your past criminal history, if any, to scoring points under a different set of variables that deal with the facts of the current case you are facing. Instead of asking what other cases you've had in the past like PRVs, OVs ask "What (allegedly) happened in this case?" Was a weapon involved? Did someone suffer physical injury or psychological injury? The more sever the facts, the more points one receives.
Obviously, a person who commits a Sexual Assault with a weapon, that likely deserves a harsher sentence than someone who was merely mistaken (or lied to) about the alleged victim's age. OVs are the part of the Guidelines calculation that takes account of these differences from one case to the next.
But even though the focus is different, looking at p. 29 - 47 of the PDF, you can easily see that the method by which OVs are calculated is the same as for PRVs - you read the instructions for each OV, apply the facts, and assign the correct number of points for each OV.
Again, when scoring Guidelines (at least initially), we're looking at the specific factual allegations in the accuser's story and pretending that they're true, even if you know they're not. As stated above, this is because if you're in any situation where the Judge is sentencing you (and therefore applying the Guidelines), that presumes that you've either plead guilty or no contest to something, perhaps a reduced Degree of CSC, or else you've gone to trial and been found guilty of at least one of the Counts of Criminal Sexual Conduct you're facing. Innocent people can be found guilty, and even plead guilty to CSC for various reasons, and the idea of scoring Guidelines early on in the case is to try to figure out what you may be facing, worst case scenario.
We cannot go into every OV individually here, but in keeping with the "weapon" scenario, let's look at OV 1 on p. 29, which just happens to address the topic of "Aggravated Use of Weapon." Reading the instructions on p. 29, you'll see that If the allegations include an assault with a knife, for example, then the most appropriate choice for OV 1 would likely be 15 points. The issues addressed in OV 2 and OV 3 then follow naturally, and so on...
You will see that a few of these don't really apply to most Criminal Sexual Conduct cases. On the other hand, some, like OV 11, "Criminal Sexual Penetration," are quite specific to CSC cases, and to put it bluntly, are extremely confusing. Add to this the fact that the Manual and it's instructions aren't the only source of authority on how to properly score any particular OV (or PRV, for that matter) - there is also case law from the Michigan Court of Appeals and Michigan Supreme Court that interprets the OVs - case law on PRVs and OVs is an entire topic on its own.
In-fact, to reaffirm our disclaimer above, the most honest thing that can really be said is that unless you have some degree of legal education and experience with scoring Sentencing Guidelines, you simply are NOT going to be able to get them correct on your own. Again, this exercise is designed only to give you a basic idea of how the formula works generally. You will see how changing just one little fact can change the OV points significantly, and may ultimately have a drastic impact on your overall Guidelines. Only a lawyer's calculations should be given any weight.
6) Find the appropriate Sentencing Grid.
Now that you have your totals added-up for all PRVs and OVs, those totals must be put on the appropriate "Sentencing Grid" for the most serious CSC Degree you are facing (or whatever reduced Degree you're considering pleading to), beginning on p. 142 of the PDF. There is a different "Sentencing Grid" for each of the Crime Classes we discussed above in scoring the PRVs (A, B, C, D, and so on).
If you are contemplating taking a plea deal to a lesser Degree of CSC than the most serious Count you are currently facing, and you want to see what Guidelines the Judge would be applying at Sentencing if you took that plea (assuming there is no Sentence Agreement or Cobbs Evaluation in place), then for this step, you'll use the Degree you are considering pleading-down to.
The Crime Class of each crime in Michigan is found on p. 151 through the end of the PDF. To make this easier, here are the Crime Classes for each of the four basic Degrees of Criminal Sexual Conduct, so you can go to the correct Sentencing Grid on p. 142 - 149:
- First Degree Criminal Sexual Conduct: Class A
- Second Degree Criminal Sexual Conduct: Class C
- Third Degree Criminal Sexual Conduct: Class B
- Fourth Degree Criminal Sexual Conduct: Class G
Thus, if the offense you're scoring for is Criminal Sexual Conduct 1st Degree, you'll be looking at the Sentencing Grid for Class A offenses n p. 142. If the offense you're scoring is Criminal Sexual Conduct 3rd Degree, you'll be looking at the Sentencing Grid for Class C offenses on p. 144 and so on.
7) Put your PRV and ORV totals on the Grid to arrive at a Sentencing Guideline Range.
Once you're looking at the correct Grid, take the total for all of your PRVs added-up from step 4, above, and find the appropriate column at the very top of the Grid. For example, let's pretend your PRV total is 20 points. As you can see, you would belong in "PRV Level C" for 10 - 24 points.
Then, do the same thing for your total for all OVs on the left side. Let's pretend your OV total is 30. You would therefore arrive at OV Level 3 ("III") for 25 - 34 points.
Finally, find out where the PRV Level and the OV Level intersect on the grid. This will be a box. In our example, we arrive at the box near the middle of the Grid that has a "19" on the left side, and a series of four numbers (38, 47, 57, 76), on the right. If we assume you have no prior felonies, then the top number on the right applies to you, and therefore, your Sentencing Guideline Range would be 19 to 38 months.
This means that unless you have a Sentence Agreement or Cobbs Evaluation for something else, and unless the Judge were to depart from the Guidelines altogether (which is allowed in certain cases), at Sentencing, the Judge would pick a number somewhere within the number 19 to 38 months. Let's say the Judge picks. 30 months. But that doesn't mean you serve 30 months and then you're out...
What that means is, 30 months is your first Parole Hearing, and you could be granted or denied Parole. If you are denied, you can be granted Parole at some future point, but you ultimately cannot be held for longer than the statutory maximum penalty, which in the case of CSC 2nd Degree is 15 years, unless you are charged as an Habitual Offender (which requires prior felony convictions).
RELATED: Click here to read our recent 2021 article on Criminal Sexual Conduct Habitual Offender laws.
Only if the Judge picks a number equal to or fewer than 12 months, then you only go to County Jail (not Prison), and you actually do get out at the end of that period (or possibly early for "good time") - there is no Parole Hearing or Parole Board for County Jail sentences.
A lot of people (even Attorneys) are confused about how this works - when the Judge in our above hypothetical pronounces the Sentence, she says "I sentence you to serve 30 months to 15 years in the Michigan Department of Corrections."
If you have one or more prior felony conviction, and the Prosecution files Notice of Intent to have you sentenced as an Habitual Offender, then the bottom number stays at 19 months, but the top number of the range, on the right side of the box, corresponds with whatever level of Habitual you are charged with.
So in our example, if you have two prior felony convictions, and therefore the Prosecution charges you as an Habitual Offender, 3rd Offense, the Guideline range would be 19 to 15 months. Being charged as an Habitual Offender also increases the maximum possible sentence, and it can turn Second Degree CSC or Third Degree CSC into LIFE offenses, rather than 15 year maximums.