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147675 - People v Wilding (Gordon)

The People of the State of Michigan,
 
William J. Vailliencourt, Jr.
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Livingston – Reader, D.)
 
Gordon Benjamin Wilding,
 
Jeanice Dagher-Margosian
 
Defendant-Appellant.
 

Summary

​Defendant Gordon Wilding pled guilty to third-degree criminal sexual conduct. The conviction arose from a sexual encounter between 17-year-old Wilding and the 15-year-old victim.

 The trial court sentenced Wilding to one year in jail and a term of probation under the Holmes Youthful Trainee Act. Wilding then violated probation. The trial court revoked his probation and sentenced him to 85 months to 15 years in prison. 

 On appeal, Wilding argued that several offense variables were miscalculated, including Offense Variable (“OV”) 8 and OV 10. A trial court scores offense variables to determine the range within which a defendant’s minimum sentence should fall; the maximum sentence is established by statute.  In this case, Wilding argued, the erroneous OV scores caused the trial court to use the range of 51 to 85 months when determining his minimum sentence. The trial court sentenced Wilding at the very top of that range. Wilding argued that, if OV 8 and OV 10 were properly scored at zero, the sentencing guidelines range would be lowered, and he would be entitled to resentencing.

 The Court of Appeals held that Wilding was not entitled to resentencing. Wilding was assessed 15 points under OV 8, MCL 777.38, which is scored when “a victim was asportated to another place of greater danger or to a situation of greater danger or was held captive beyond the time necessary to commit the offense.” Wilding argued that the victim voluntarily returned to the van with him numerous times throughout the evening in question. She was not “carried away” to the van by Wilding. The van was not a place of “greater danger,” Wilding argued. It was simply the only place where he and the victim could be alone. Finally, Wilding claimed, there was no evidence that the victim was “held captive.” But the Court of Appeals disagreed, and upheld the trial court’s scoring of OV 8. The panel explained that, in the van, the victim was separated from other people attending the concert, and from her friends. “As such, the van served as a place where defendant could commit the sexual assault without being seen.” Moreover, the victim’s friend maintained that she had to search for the van, because it had been moved. “Thus, defendant committed the sexual assault in the van while it was parked at a location unknown to the victim’s friend, which placed the victim in a situation of greater danger.” 

 OV 10, MCL 777.40, requires 15 points to be scored for “predatory conduct.” Wilding argued that he did not stalk the dance floor to find a vulnerable victim. In fact, the victim told him (falsely) that she was 16 years old, while he was only 17 years old at the time. But the Court of Appeals upheld the trial court’s decision to score OV 10 at 15 points. “Defendant provided a 15-year-old girl with alcohol and escorted her away from a public place to a van in a parking lot after she consumed the alcohol. The victim was dizzy and disoriented.  Her age and her physical condition rendered her susceptible to injury, physical restraint, and temptation. It may also reasonably be inferred that defendant’s primary purpose was victimization, i.e., to engage in sexual intercourse with the victim.” The Court of Appeals held that Wilding was not entitled to sentencing relief.

 Wilding appealed to the Supreme Court, which scheduled oral argument on the application for leave to appeal. The parties are directed to address “whether the trial court erroneously assessed 15 points each for offense variables 8 (MCL 777.38(1)(a)) and 10 (MCL 777.40(1)(a)).”