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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v BRUCE WADE MORGAN, Defendant-Appellant.

UNPUBLISHED January 9, 1998

No. 199123 Livingston Circuit Court LC No. 95-009079-FC

Before: Markey, P.J. and Michael J. Kelly and Whitbeck, JJ. PER CURIAM. Defendant was convicted by jury of three counts of third-degree criminal sexual conduct ("CSC III"), MCL 750.520d(1)(b); MSA 28.788(4)(1)(b), one count of first-degree criminal sexual conduct ("CSC I"), MCL 750.520b(1)(f); MSA 28.788(1)(f), and one count of attempted CSC III, MCL 750.92; MSA 28.287. He was sentenced to concurrent terms of seven to fifteen years' imprisonment for each CSC III conviction, twelve to twenty-five years for the CSC I conviction, and two to five years for the attempted CSC III conviction. The convictions arose from an incident in which the complainant asserted that she was subjected to multiple incidents of forcible or coerced sexual penetration by defendant and one George Beebe ("Beebe"). Defendant appeals as of right. We affirm. I Defendant argues that the trial court erred in scoring Offense Variable ("OV") 12 (number of criminal sexual penetrations) and Prior Record Variable ("PRV") 7 (subsequent/concurrent felony convictions) of the sentencing guidelines. The defense contends that counting the same acts of which defendant was convicted as multiple penetrations under OV 12 and as multiple convictions under PRV 7 constitutes improper "double scoring." Essentially, defendant argues that the trial court erred by misinterpreting or misapplying the sentencing guidelines. However, appellate relief is not available for a claim that sentencing guidelines variables have been misinterpreted or misapplied. People v Mitchell, 454 Mich 145, 176-178; 560 NW2d 600 (1997). Accordingly, we are precluded from providing review or relief based on this issue.1 II

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Defendant next essentially argues that the trial court erred by instructing the jury that first time offenders are treated more leniently than other offenders. Apparently, defendant's premise is that this may have made the jury more apt to convict him as he testified at trial that he had no prior convictions. Beebe was called as a witness by the prosecution. He had pled no contest to a charge of CSC I as a juvenile in connection with the incident underlying this case. Part of the plea agreement was that Beebe would not be tried as an adult. Defense counsel asked Beebe on recross-examination whether Beebe knew that life imprisonment would have been a possibility if Beebe had been convicted of CSC I as an adult. In response, the prosecutor asked Beebe on redirect examination whether Beebe had been told "about the lenient treatment that is given the first time offenders, who appear in the adult Court."2 Defense counsel objected to this question. Eventually, the trial court instructed the jury that multiple factors are considered in sentencing a person convicted of a crime including the person's prior record. The trial court further stated: People who have been convicted before, are not treated the same way as people who are treated with

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