
    PEOPLE v MUTCHIE
    Docket No. 121559.
    Decided April 1, 2003.
    On application by the defendant for leave to appeal, the Supreme Court, in lieu of granting leave, affirmed the judgments of the lower courts.
    Michael R. Mutchie pleaded guilty in the Barry Circuit Court, James H. Fisher, J., on three counts of criminal sexual conduct in the first degree and one count of kidnaping, and was sentenced to concurrent terms of forty to one hundred years in prison for each CSC-I offense and fifteen to twenty-five years for kidnaping. The defendant appealed on the basis of an alleged error in scoring under the sentencing guidelines. The Court of Appeals, Meter, P.J., and Markey and Owens, JX, affirmed on the bases that the trial court scoring was correct and that the trial court had stated that the sentence would be the same with or without the offense variable scoring challenged by the defendant. 251 Mich App 273 (2002). The defendant sought leave to appeal.
    In a unanimous memorandum opinion, the Supreme Court held:
    
    Because the sentences imposed by the circuit court were proper and were properly explained, including the compelling reasons for departure from the guidelines range, and because the circuit court clearly expressed its view that the sentences imposed in this case were the proper sentences without regard to how the questioned offense variable might be scored, the judgments of the Court of Appeals and the circuit court were proper.
    Affirmed.
    Michael R. Mutchie in propria persona.
   Memorandum Opinion. Armed with a knife, the defendant raped the clerk of a grocery store in Hastings. He then abducted her, but she was able to escape as he drove through Saranac.

The defendant was charged with three counts of first-degree criminal sexual conduct and one count of kidnaping. MCL 750.520b(l)(e), 750.349. He pleaded guilty on all four counts of the information and was sentenced to concurrent terms of forty to one hundred years in prison for each CSC-I count and fifteen to twenty-five years in prison for kidnaping. The circuit court later denied a motion for resentencing.

The defendant filed an application for leave to appeal, which the Court of Appeals granted, limited to his claim that the circuit court had erred in its decision to score 50 points under offense variable 11 of the sentencing guidelines for each of the csc-i convictions. MCL 777.41. The Court then affirmed. 251 Mich App 273; 650 NW2d 733 (2002).

In its opinion, the Court of Appeals stated:

After reviewing the record, we conclude that the scoring issue is moot because, even if there were error, resentencing is not warranted given the trial court’s remarks that it would have imposed the same sentences regardless of the scoring of ov it. [251 Mich 274.]

Despite that correct statement, the Court of Appeals added several pages of dicta in which it presented a close analysis of ov 11, focusing on the instructions set forth in MCL 777.41(2):

All of the above apply to scoring offense variable 11:

(a) Score all sexual penetrations of the victim by the offender arising out of the sentencing offense.
(b) Multiple sexual penetrations of the victim by the offender extending beyond the sentencing offense may be scored in offense variables 12 or 13.
(c) Do not score points for the 1 penetration that forms the basis of a first-or third-degree criminal sexual conduct offense.

The Court of Appeals concluded that the circuit court correctly scored ov ll in the present case.

The defendant has applied to this Court for leave to appeal, urging that we overturn the judgment of the Court of Appeals with regard to ov 11.

We affirm, but find it unnecessary to express an opinion regarding the proper interpretation of ov 11. As the Court of Appeals observed, the circuit court clearly expressed its view that the sentences imposed in this case were the proper sentences without regard to how ov 11 might be scored. The forty-year minimum sentence imposed for each csc-i conviction was a departure above the recommended range in any event, and the court expressly stated the substantial and compelling reasons that justified the departure.

The analysis of ov n offered by the Court of Appeals was dictum. Because the sentences imposed by the circuit court were proper and were properly explained, we affirm the judgments of the Court of Appeals and the circuit court. MCR 7.302(F)(1).

Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred. 
      
       “A court may depart from the appropriate sentence range established under the sentencing guidelines set forth in [MCL 777.1 et seq.] if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure.” MCL 769.34(3).
     
      
       We have reviewed the defendant’s other claims of error related to the sentence imposed by the circuit court, and we find no basis for resentencing or other relief.
     