Opinion
No. 343433
04-23-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ANTONIO MARKESE CUMMINGS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court
LC No. 12-002310-FC Before: BECKERING, P.J., and SERVITTO and STEPHENS, JJ. PER CURIAM.
Defendant appeals as of right the trial court's resentencing order following remand from this Court. We affirm.
I. BACKGROUND
Defendant was convicted by a jury of two counts of first-degree criminal sexual conduct (CSC-I) (victim under 13 years of age), MCL 750.520b(2)(b), and one count of false impersonation of a public officer, MCL 750.215. He was sentenced as a third-offense habitual offender, MCL 769.11, to consecutive terms of 30 to 60 years' imprisonment for the counts of CSC-I and to 156 days of time served for the count of false impersonation of a public officer. On appeal, this Court affirmed defendant's convictions and sentences. People v Cummings, unpublished per curiam opinion of the Court of Appeals, issued August 5, 2014 (Docket No. 312583), pp 1-2, 4. Our Supreme Court vacated the portion of this Court's opinion affirming defendant's consecutive sentences and remanded to the trial court to "either issue an order that provides a basis for its conclusion that the two criminal offenses arose from the same transaction, or resentence the defendant." People v Cummings, 498 Mich 895; 870 NW2d 66 (2015). On remand, the trial court issued an opinion explaining that the two acts of CSC-I arose out of the same transaction in accordance with MCL 750.520b(3), and again imposed consecutive sentences. Defendant again appealed his CSC sentences. On that appeal, this Court reversed and remanded for resentencing, concluding that the two instances of CSC-I did not arise out of the same transaction. People v Cummings, unpublished per curiam opinion of the Court of Appeals, issued June 6, 2017 (Docket No. 331176), pp 3-4. On remand for the second time, the trial court held a resentencing hearing, at which it considered defendant's two convictions of CSC-I with a child under the age of 13 and concluded that defendant was "a pedophile." The trial court resentenced defendant, as a third-offense habitual offender, MCL 769.11, to two concurrent terms of 35 to 90 years in prison with credit for 2,060 days served. Defendant now appeals this resentencing as of right on grounds that it was unreasonable and disproportionate.
Defendant did not appeal his sentence for false impersonation of a public officer.
II. RESENTENCING
A. STANDARD OF REVIEW
A defendant's minimum sentence that falls within the guidelines minimum sentencing range is presumptively proportionate. Id.; MCL 769.34(10). This Court does not review sentences within the applicable guidelines range for reasonableness; rather, this Court must affirm a sentence within the guidelines minimum sentencing range "unless there was an error in the scoring or the trial court relied on inaccurate information." People v Anderson, 322 Mich App 622, 636; 912 NW2d 607 (2018).
B. ANALYSIS
Defendant argues that the trial court failed to consider his behavior in prison since his 2012 convictions. He challenges the proportionality and reasonableness of this sentence and further challenges his minimum sentence of 35 years. Defendant is not entitled to resentencing on these claims. Defendant's minimum sentence of 35 years (420 months) is within the guidelines minimum sentence range of 171 to 427 months. This Court must affirm defendant's in guidelines sentence unless the trial court made a scoring error or relied on inaccurate information. See MCL 769.34(10); Anderson, 322 Mich App at 636; People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). Defendant does not argue that the trial court committed any scoring errors. Therefore, this Court can review defendant's sentences only for inaccurate information. See MCL 769.34(10); Anderson, 322 Mich App at 636; Schrauben, 314 Mich App at 196.
Defendant argues that the trial court improperly determined that defendant "is a pedophile" because it reached that conclusion without an expert opinion. A defendant is entitled to a sentence based on accurate information. MCL 769.34(10); People v Francisco, 474 Mich 82, 88; 711 NW2d 44 (2006). A defendant is entitled to resentencing if his sentence is based on inaccurate information. Id. at 92; People v Miles, 454 Mich 90, 96; 559 NW2d 299 (1997). However, when the trial court draws a conclusion from undisputed facts, that conclusion does not invalidate a sentence. People v Wybrecht, 222 Mich App 160, 173; 564 NW2d 903 (1997) (holding that a probation officer's characterization of the defendant as a pedophile was not an error requiring resentencing because the characterization was drawn from undisputed facts of sexual misconduct with a young child). It is undisputed that the defendant committed two sexual offenses with child victims. Where there is no statutory definition of a term we look to its' common meaning. People v Yamat, 475 Mich 49, 53; 714 NW2d 335 (2006). A pedophile is defined as "one affected with pedophilia," and pedophilia is defined as "sexual perversion in which children are the preferred sexual object." Merriam-Webster's Collegiate Dictionary (11th ed). While there is also a DSM V definition of the disease of pedophilia, it is not inappropriate for the court to have determined that this defendant fit within the common use of the term. The trial court's characterization of defendant as a pedophile was not based on inaccurate information. Therefore, the trial court's characterization of defendant as a pedophile is not incorrect, and accordingly, it does not invalidate defendant's sentence. See Wybrecht, 222 Mich App at 173.
Affirmed.
/s/ Jane M. Beckering
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens