People v. Johnson

At issue is whether the trial court erred in scoring offense variable (OV) 11 and, if so, whether defendant is entitled to be resentenced. Defendant was convicted of two counts of third-degree criminal sexual conduct. The trial court scored OV 11 at 25 points on the basis that defendant penetrated the victim twice. The Court of Appeals affirmed. Because MCL 777.41(2)(a) only allows those penetrations “arising out of the sentencing offense” to be scored under OV 11, and because the two penetrations that formed the bases *98of the two sentencing offenses in this case occurred on different dates…