Sentencing; Whether defendant was entitled to resentencing; People v. Francisco

On reconsideration, the court held that defendant was not entitled to resentencing. He was convicted of CSC I after he refused to pay the victim, a prostitute with whom he had arranged a meeting, held a sharp object to her throat, and forced her to engage in oral and vaginal sex. The trial court granted his motion to rescore OV 11 at 0 points, but denied his motion for resentencing. It corrected his original sentencing information report and the recommended minimum guidelines range was lowered to 42 to 70 months. Its order stated that resentencing was not required because defendant’s original sentence of 48 to 120 months was within the recalculated recommended minimum guidelines range. On appeal, the court rejected his argument that he was entitled to resentencing “because he was sentenced on the basis of inaccurate information and an inaccurate guidelines range.” It distinguished Francisco and found resentencing was not required. “We know the trial court would impose the same sentence for defendant under the now accurately scored guidelines range.” Its order stated that resentencing was not required because his “original sentence of 48 to 120 months of imprisonment is within the recalculated recommended minimum guidelines range. The trial court had the opportunity to resentence defendant and it expressly declined to do so.” After rescoring OV 11 and recalculating the guidelines range, it decided to maintain his original sentence. As such, its “explanation, its familiarity with this matter, particularly in light of the procedural posture and its ultimate disposition of the case, demonstrates the trial court’s intent to maintain the same sentence, regardless of the prior scoring error.” As a result, “‘[r]esentencing is . . . not required [because] the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range.’” Affirmed.