Sentencing; Scoring of OV 8; MCL 777.38(1)(a); “Captive”; Justifying a departure sentence & its extent; Claim that the collection of fees should be delayed & the 20% late penalty imposed pursuant to MCL 600.4803(1) waived; Striking a reference from the PSIR

The court held that the trial court did not misscore OV 8 at 15 points and that it adequately justified its departure from the guidelines in sentencing defendant. The court also rejected his claim “that the collection of fees should be delayed and the 20% late penalty imposed pursuant to MCL 600.4803(1) should be waived.” But it remanded for the ministerial task of striking a reference to other pending charges from the PSIR. He pled guilty to assault by strangulation and was initially sentenced to “three years’ probation and 108 days in jail, with credit for 108 days served. Defendant repeatedly violated the terms of his probation and his probationary sentence was revoked. The trial court departed from the recommended” 19 to 38-month minimum guidelines range and imposed a 76 to 120-month sentence. The court first held that OV 8 was properly scored because the evidence showed “that the victim—defendant’s then-pregnant girlfriend—was held captive longer than needed to commit the assault.” The record indicated “that after she was assaulted, the victim was confined in a bedroom. She was unable to open the door and exit because defendant put his fingers through a hole in the door where the door handle would have been and held it closed, i.e., he used physical force to keep the door closed so she could not exit through it. By doing so, [he] physically restrained [her] from leaving the bedroom.” The court also rejected his claim that his trial attorney was ineffective for not objecting to the scoring. As to the departure sentence imposed, “strangling a woman who is 14 weeks pregnant is a very serious offense. Although the victim recanted her allegations, the statements she gave to officers on the scene immediately after the assault indicated that it was a very violent and prolonged attack.” In addition, defendant “has a significant criminal history.” His 10-point PRV 5 score indicated “that only three or four of the listed eight misdemeanor convictions were scored.” And his 30-point PRV 2 score did “not account for all of [his] felony convictions.” The fact that he “had seven felony convictions in the 10 years since he was 17 years old evidences a pronounced difficulty in conforming his behavior to the law, as do his numerous probation violations. Both call into question his” rehabilitation potential. Affirmed but remanded.