
    PEOPLE v BIVENS
    Docket No. 163762.
    Submitted June 8, 1994, at Detroit.
    Decided July 18, 1994, at 9:45 a.m.
    Leave to appeal sought.
    Lynn D. Bivens pleaded nolo contendere in the Barry Circuit Court, Richard M. Shuster, J., of assault with intent to commit sexual penetration and assault with intent to commit criminal sexual conduct in the second degree and was sentenced to prison terms of 48 to 120 months and forty to sixty months respectively. The defendant appealed, arguing that the trial court erred in scoring Offense Variable 12 as fifty points on the basis of his prior sexual conduct with the victim.
    The Court of Appeals held:
    
    
      A panel of the Court of Appeals in People v Polus, 197 Mich App 197 (1992), erroneously concluded that the holding in People v Warner, 190 Mich App 26 (1991), relative to the proper application of ov 12 was dicta and that Warner was not controlling authority pursuant to Administrative Order No. 1990-6. Accordingly, because the holding in Warner is not dicta, it is controlling authority, and the trial court properly scored ov 12 as fifty points.
    Affirmed.
    Michael J. Kelly, P.J., concurring, stated that affirmance of the defendant’s sentence was proper, not because Warner was controlling authority, but rather because even if Polus was controlling and it was error to score ov 12 as fifty points and even if a reduced ov 12 score would have resulted in a reduced recommended sentence under the sentencing guidelines, the trial court anticipated that possibility and filed a sentencing guidelines departure form setting forth adequate reasons for the sentences imposed. Remanding the case for resentencing under these circumstances would be futile.
    
      Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Dale A. Crowley, Prosecuting Attorney, and Steven B. Flancher, Assistant Attorney General, for the people.
    
      Gregory N. Veltema, P.C. (by Gregory N. Veltema), for the defendant.
    
      Before: Michael J. Kelly, P.J., and Fitzgerald and Corrigan, JJ.
   Per Curiam.

Defendant was charged with two counts of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct. Pursuant to a plea agreement, defendant pleaded nolo contendere of assault with intent to commit sexual penetration, MCL 750.520g(l); MSA 28.788(7X1), and assault with intent to commit second-degree criminal sexual conduct, MCL 750.520g(2); MSA 28.788(7X2). Defendant was sentenced to prison terms of 48 to 120 months and forty to sixty months for his respective convictions. Defendant appeals as of right. We affirm.

Defendant argues that the trial court erred in considering prior criminal sexual conduct with the victim in assessing fifty points for Offense Variable 12. This issue has arisen in two published opinions since the adoption of Administrative Order No. 1990-6, which requires this Court to follow a prior published decision of this Court issued on or after November 1, 1990.

In People v Warner, 190 Mich App 26; 475 NW2d 397 (1991), this Court concluded that uncontroverted evidence of prior instances of sexual penetration between the defendant and the victim could be used to support the trial court’s scoring of offense variables. In Warner, the trial court relied on the evidence of prior penetrations between the defendant and the victim that was contained within the presentence report in scoring fifty points for ov 12. In affirming the defendant’s sentence, this Court stated:

We note, for purposes of defendant’s argument regarding the sentence imposed, that even if we were to find that the trial court improperly scored ov 12, defendant’s sentence would still fall within the minimum guidelines range. [Id. at 29.]

In People v Polus, 197 Mich App 197; 495 NW2d 402 (1992), another panel of this Court (Griffin, J., dissenting), held that prior conduct cannot be used in the scoring of ov 12. In so holding, the panel noted in a footnote that Warner was not controlling authority:

While Warner does arguably support the proposition that prior conduct between the defendant and the victim may be considered in the scoring of Offense Variable 12, we conclude that Warner does not control the case at bar because any such conclusion is mere dicta. While the trial court in Warner did consider prior conduct in the scoring of Offense Variable 12, and this Court upheld the trial court’s scoring of the guidelines, the Warner decision never explicitly addressed the question whether prior conduct is appropriate in considering the scoring of Offense Variable 12. Rather, the question addressed by the Court in Warner was whether the trial court could properly consider uncontroverted evidence in a presentence report in establishing the scoring of the sentencing guidelines. Furthermore, the Warner Court noted that it would not remand the matter for resentencing even if it were to find that the trial court had improperly scored Offense Variable 12 on the basis of the trial court’s comments at sentencing. [Id. at 200-201, n 3.]

In his dissenting opinion in Polus, Judge Griffin stated:

I disagree with the majority’s conclusion that the language in Warner addressing this scoring issue is mere dicta. In this regard, I note that, until today, our Court has routinely followed Warner with regard to this issue. . . .
The decision in Warner is binding precedent pursuant to Administrative Order No. 1990-6, 436 Mich lxxxiv. In my view, the majority’s failure to follow Warner is a violation of that order. [Id. at 206-207.]

In this case, we agree with the prosecutor’s contention that the Polus Court erroneously concluded that Warner was not controlling on the issue whether prior conduct between the defendant and the victim may be considered in the scoring of ov 12. Although not the central issue raised in the case, the consideration of whether prior conduct can be considered in the scoring of ov 12 was essential to the determination whether ov 12 was scored properly. The appropriateness of the scoring of ov 12 was considered by the Warner Court, as evidenced by its statement that "even if we were to find that the trial court improperly scored ov 12 . . .” and its affirmance of the defendant’s sentence. Thus, the language in Warner is not dicta, and a rule of law to which Administrative Order No. 1990-6 applies resulted concerning the scoring of ov 12. Hence, the Polus Court violated Administrative Order No. 1990-6 by failing to follow Warner.

Applying Warner, the trial court properly scored fifty points for ov 12, because the presentence report reveals, and defendant admitted, that he digitally penetrated the victim on prior occasions.

Affirmed.

Michael J. Kelly, P.J.

(concurring). I believe the majority in People v Polus, 197 Mich App 197; 495 NW2d 402 (1992), correctly characterized the issue addressed in People v Warner, 190 Mich App 26; 475 NW2d 397 (1991), as whether uncontroverted evidence in the presentence report may be used to score ov 12. The defendant merely argued that the lower court improperly scored points under ov 12 for the penetration involved in the subject offense. My reading of Warner indicates that the Court did not zero in on the specific issue whether prior incidents of sexual penetration reported in the presentence report may be considered in scoring ov 12. The only mention of prior penetrations in Warner is buried in a block quotation of the lower court’s decision in that case.

I think both opinions in Polus and the majority opinion in this case incorrectly assess the Warner Court’s treatment of prior sexual penetrations in terms of whether or not it is dicta. Because Warner never addressed the issue, there is nothing to debate with respect to dicta. Rather, Warner is simply inapplicable.

Accordingly, Polus, which did directly address the issue of prior penetrations with respect to the scoring of ov 12, applies in this case. Under Polus, the trial court should not have considered prior penetrations between defendant and the victim in scoring ov 12. I would follow the holding in Polus. Consideration of penetrations occurring months earlier violates the "same criminal transaction” requirement and overlaps with ov 25, which assigns offense variable points for "contemporaneous criminal acts,” including acts similar to the subject offense that occur within six months of the offense.

I nonetheless agree with the majority in this case that defendant’s sentence should be affirmed. While a scoring error normally entails remanding to the sentencing court for reconsideration in light of the correct scoring, the trial court in this case indicated that it was filling out a sentencing guidelines departure form in the event this Court determined that the guidelines had been exceeded. The trial court noted numerous factors in support of its decision. In other words, the trial court clearly indicated its intent to stand by the sentences of four to ten years’ and to 5 years’ imprisonment, and it cited adequate reasons for doing so. Remanding under these circumstances would be futile. 
      
       The prosecutor in Polus filed an application for leave to appeal to the Supreme Court on March 5, 1993. Leave is still pending.
     
      
       The Warner Court’s conclusion that it would find the defendant’s sentence to be proportionate even if the guidelines were improperly scored does not render its conclusion that the trial court properly scored ov 12 dicta, as suggested by the Polus Court.
     