8.9Other Sentencing Factors

A.Second or Subsequent CSC Convictions

MCL 750.520f provides the penalty for offenders convicted of a second or subsequent violation of specific criminal sexual conduct statutes. MCL 750.520f requires a sentencing court to sentence a defendant to a mandatory minimum term of no less than five years’ imprisonment¹ when he or she is convicted of a second or subsequent violation of MCL 750.520b (CSC-I), MCL 750.520c (CSC-II), or MCL 750.520d (CSC-III). MCL 750.520f(1). For purposes of MCL 750.520f, an offense is considered a second or subsequent offense if, before conviction of the second or subsequent offense, the offender had been convicted under MCL 750.520b, MCL 750.520c, MCL 750.520d, “or under any similar statute of the United States or any state for a criminal sexual offense including rape, carnal knowledge, indecent liberties, gross indecency, or an attempt to commit such an offense.” MCL 750.520f(2).

Because the general habitual offender statutes address a defendant’s maximum possible sentence and the subsequent offense provisions of MCL 750.520f address a defendant’s minimum sentence, concurrent application of the statutes is permitted. People v VanderMel, 156 Mich App 231, 234-235 (1986). A defendant’s habitual offender status and the applicability of MCL 750.520f to a defendant’s conviction may be based on the same previous felony conviction. People v James, 191 Mich App 480, 482 (1991).

Unlike the general habitual offender statutes, MCL 750.520f does not require the prosecution to file notice of its intent to proceed under MCL 750.520f(1). People v Eason, 435 Mich 228, 249 n 35 (1990), citing People v Bailey, 103 Mich App 619, 627-628 (1981).

B.Concurrent and Consecutive Sentences

Sentences run concurrently unless otherwise indicated; consecutive sentences may not be imposed unless expressly authorized by law. People v Gonzalez, 256 Mich App 212, 229 (2003).²

1.Consecutive Sentence Permitted for CSC-I Conviction

“The court may order a term of imprisonment imposed under [MCL 750.520b] to be served consecutively to any term of imprisonment imposed for any other criminal offense arising from the same transaction.” MCL 750.520b(3). MCL 750.520b(3) authorizes consecutive sentencing only in “cases in which the multiple offenses arose from the ‘same transaction[.]’” People v Bailey, 310 Mich App 703, 723 (2015). “[A]n ongoing course of sexually abusive conduct involving episodes of assault does not in and of itself render the crimes part of the same transaction. For multiple penetrations to be considered as part of the same transaction, they must be part of a ‘continuous time sequence,’ not merely part of a continuous course of conduct.” Id. at 725, citing People v Brown, 495 Mich 962, 963 (2014), and People v Ryan, 295 Mich App 388, 402-403 (2012).

2.Consecutive Sentence Permitted for False Statement in Petition for Postconviction DNA Testing

“An individual who intentionally makes a material false statement in a petition filed under . . . MCL 770.16, is guilty of a felony[.]” MCL 750.422a(1). “The court may order a term of imprisonment imposed under [MCL 750.422a(1)] to be served consecutively to any other term of imprisonment being served by the individual.” MCL 750.422a(2).

C.Conditional Sentences

When an offender is convicted of an offense punishable by a fine or imprisonment, or both, the court has the discretion to impose a conditional sentence and order the offender to pay a fine (with or without the costs of prosecution) and restitution as indicated in MCL 769.1a or the Crime Victim’s Rights Act (MCL 780.751 to MCL 780.834), within a limited time stated in the sentence.³ MCL 769.3(1).⁴ If the offender defaults on payment, the court may impose a sentence otherwise authorized by law. MCL 769.3(1).

With the exception of an offender convicted of CSC-I or CSC-III, “the court may also place the offender on probation with the condition that the offender pay a fine, costs, damages, restitution, or any combination in installments with any limited time and may, upon default in any of those payments, impose sentence as provided by law.” MCL 769.3(2).

If an offender is . . . subject to a conditional sentence under MCL 769.3, “any restitution ordered under [MCL 769.1a] shall be a condition of that . . . sentence.”⁵ MCL 769.1a(11).