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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 11, 2017

v No. 332864 Charlevoix Circuit Court MATTHEW JOHN SCOTTON, LC No. 13-014711-FC

Defendant-Appellant.

Before: S AWYER , P.J., and M URRAY and G LEICHER , JJ.

P ER C URIAM

. A jury convicted defendant of fi rst-degree criminal sexual con duct, felonious assault, and domestic violence after he att acked his long-term girlfriend. In a previous appeal, we rejected defendant’s challenges to the scoring of various offense and pr ior record variables, but remanded pursuant to People v Lockridge , 498 Mich 358; 870 NW2d 502 (2015), and Crosby v United States , 397 F3d 103 (CA 2, 2005), because OV 11 had been scored based on judge-found facts. People v Scotton , unpublished opinion per curiam of the Court of Appeals, issue d November 24, 2015 (Docket Nos. 321370; 325372), unpub op at 5-9. On remand, the trial court reaffirmed the earlier imposed sentences. Defendant now raises a new challeng e to the scoring of OV 11. Defendant waived this argument by failing to raise it in the in itial appeal. In any event, we discern no error and affirm.

I. PROCEEDINGS FOLLOWING REMAND

Following our 2015 decision, defendant filed an application fo r leave to appeal to the Michigan Supreme Court. The Supreme Court held defendant’s app lication in abeyance pending its decision in People v Comer , 312 Mich App 538; 879 NW2d 306 (2015). People v Scotton
, ___ Mich ___; 885 NW2d 467 (2016). The Supreme Court’s decisio n could affect only defendant’s challenge to the lifetime electronic monitoring pro vision of his judgment of sentence. It therefore does not interfere with our resolution of the current appeal.

On remand in the trial court, defendant filed a sentencing mem orandum, claiming for the first time that the trial court improperly scored OV 11 based o n a second CSC charge of which he was acquitted. The trial court acknowledged that the 25-poi nt assessment for OV 11 was based on judicial fact-finding an d that the addition of these p oints increased defendant’s minimum sentencing guidelines range from 51 to 85 months to 81 to 135 months. However, “[t]he [c]ourt determine[d] tha t it would not have imposed a di fferent sentence knowing that the-2- guidelines range is now advisory pursuant to” Lockridge . The trial court did not specifically address defendant’s ne w challenge to OV 11.

II. ANALYSIS

Defendant now challenges the scoring of OV 11 and the length o f his sentences. He contends that his sentences are disproportionate because he “is not the sort of defendant who requires nor deserves an excess of incarceration. . . .” Howev er, his proportionality challenge is based entirely on his claim that the trial court improperly sco red OV 11 based on conduct underlying a charge for which he was acquitted by the jury.

Defendant was charged with vari ous offenses arising out of the physical and sexual assault of his girlfriend, DK, over August 27 and 28, 2013. Th e jury convicted defendant of one count of CSC-I for forceful penile-oral penetration causing inj ury. The jury acquitted defendant of a second count of CSC-I based on an act of penile-vaginal pe netration later in the night. Defendant claimed at trial that this act was consensual. DK te stified that she was frightened and only complied in the intercourse t o prevent further violence.

When imposing sentence, the trial court assessed 25 points for OV 11, which requires the court to “[s]core all sexual penetration of the victim by the o ffender arising out of the sentencing offense.” MCL 777.41(2)(a). The court found by a preponderanc e of the evidence that the penile-vaginal penetration had occurred and arose out of the se ntencing offense—forced penileoral penetration—supporting a 25-point score under MCL 777.41(1 )(b) (“One criminal sexual penetration occurred.”). See MCL 777.41(2)(c) (instructing cou rts not to score the penetration upon which the CSC-I charge is based).

In his first appeal, defendant contended only that the second penetration did not arise out of the sentencing offense. We rejected that challenge, holding that “[t]he penetration that occurred at 3:00 a.m. arose out of the sentencing offense becau se it occurred as part of a continuous sequence of criminal ac ts that were more than just i ncidentally related to each other.” Scotton , unpub op at 8. In remanding for resentencing, we acknowledge d that the trial court based the OV 11 score on conduct underlying a charge of which d efendant had been acquitted. We did not hold this improper, but remanded because the judge w as required to independently find that defendant had committed the act. Id . at 8-9.

Defendant now claims that the scoring of OV 11 was improper be cause it required the trial court to score points for an offense of which defendant h ad been acquitted by a jury. However, defendant waived this issue by not raising it in the f irst appeal.

“[T]he principles of res judicata require that a party bring i n the initial appeal all issues which were then present and could have and should have been rai sed,” and the failure to do so results in abandonment of the challenge. VanderWall v Midkiff , 186 Mich App 191, 201-202; 463 NW2d 219 (1990). Here, defendant did not raise this challe nge to the scoring of OV 11 in his initial appeal as of right o r in his application for leave to appeal our prior opinion to the Supreme Court. Defendant has t hereby waived or abandoned his c hallenge. He cannot now seek relief at this late st age of the proceedings.-3- In any event, defendant can establish no error. “Although a t rial court may not make an independent finding of guilt with respect to a crime for which a defendant has been acquitted, and then sentence the defendant on the basis of that finding, t he court in fashioning an appropriate sentence may consider the evidence offered at trial , including other criminal activities established even though the defendant was acquitted of the charges . . . .” People v Compagnari , 233 Mich App 233, 236; 590 NW2d 302 (1998). As found by four out of five justices considering the issue in People v Ewing , 435 Mich 443; 458 NW2d 880 (1990), “such conduct could be taken into accoun t at sentencing because an ac quittal does not necessarily mean that the defendant did not engage in criminal conduct, but only demonstrates a lack of proof beyond a reasonable doubt.” People v Harris , 190 Mich App 652, 663; 476 NW2d 767 (1991). See People v Hardy , 494 Mich 430, 438; 835 NW2d 340 (2013) (hold ing that a scorin g decision need only be supported by the le sser preponderance-of-the-evide nce burden). “A trial court may consider facts concerning uncha rged offenses, pending charges, and even acquittals , provided that the defendant is afforded the opportunity to challenge the information and, if challenged, it is substantiated by a preponderance of the evidence.” People v Golba , 273 Mich App 603, 614; 729 NW2d 916 (2007) (emphasis added). And as more recently rea soned in People v Stokes
, 312 Mich App 181, 194; 877 NW2d 752 (2015), the only error eman ating from the trial court’s reliance on conduct underlying an acquitted charge was that the court engaged in fact-finding, leading to an increase in the defendant’s minimum sentencing gu idelines range, without recognizing that the guidelines should be advisory.

Here, the trial court was alr eady warned that the guidelines a re advisory and, in light of its reliance on judicially found facts, that it must determine “whether it would have imposed a different sentence.” Scotton , unpub op at 8. The trial court expr essly indicated “that it would not have imposed a different sentence.” The court found by a prepo nderance of the evidence that one sexual penetration occurred, in addition to the penetration underlying the sentencing offense, to support it score for OV 11. The re is no further error for t his Court to remedy.

We affirm.

/s/ David H. Sawyer /s/ Christopher M. Murray /s/ Elizabeth L. Gleicher