People v. Raby

We concur with the result reached in Judge Smolensk's opinion, but write separately to discuss several issues that we believe require further discussion.

At the outset, we note that the issue whether prior instances of sexual penetration by a defendant should be scored under Offense Variable (ov) 12 is sometimes obscured in the context of appropriate concern that such conduct be assessed in sentencing. The issue is not whether such prior conduct should be considered in sentencing. Such prior conduct demonstrates characteristics of the offender that are relevant to proportionate sentencing.…