Background
A jury convicted Demaris Deshawn Whitson of third-degree criminal sexual conduct and distributing or promoting child sexually abusive activity. The evidence showed that Whitson, then 30, spent two days in a hotel room with a 14-year-old victim, where they engaged in oral sex and sexual intercourse. Whitson recorded the intercourse and sent the video to the victim, but her mother intercepted it.
In an earlier appeal, Whitson argued that Offense Variable 11, which addresses criminal sexual penetration, should have been scored at 25 points instead of 50 because only the oral-sex act could be counted in addition to the penetration underlying his CSC-III conviction. The prosecution agreed, and the case returned for resentencing. Defense counsel repeatedly agreed that OV 11 should be scored at 25 points, and the trial court imposed a prison term of 13 to 22½ years for CSC-III. Whitson later sought another resentencing, arguing that OV 11 should receive no points and that counsel was ineffective for agreeing to the 25-point score.
The Court’s Holding
The Court of Appeals affirmed. It held that Whitson waived a substantive challenge to the OV 11 score by expressly advocating for and repeatedly agreeing to the 25-point assessment. Unlike a mere failure to object, defense counsel’s affirmative agreement in the stipulated remand request and during resentencing constituted an intentional relinquishment of the claim.
The court also rejected Whitson’s ineffective-assistance claim. Michigan law defines sexual penetration to include cunnilingus and fellatio, both commonly understood as oral sex, and treats oral sex as a penetration distinct from vaginal intercourse. The victim testified that she and Whitson engaged in both oral sex and sexual intercourse and distinguished the two acts. That testimony supported, by a preponderance of the evidence, a finding of one additional penetration arising from the sentencing offense. Because an objection to the 25-point score would have lacked merit, counsel was not ineffective for declining to make it.
Key Takeaways
- Expressly agreeing to a specific offense-variable score constitutes waiver, not merely forfeiture, and extinguishes substantive appellate review of that scoring issue.
- For OV 11, oral sex can qualify as criminal sexual penetration separate from the penile-vaginal penetration underlying a CSC-III conviction.
- A victim’s use of the commonly understood term “oral sex,” while distinguishing it from sexual intercourse, can support an OV 11 finding without further definition or corroboration.
Why It Matters
The decision underscores the consequences of sentencing stipulations: a defendant who affirmatively secures resentencing based on an agreed guidelines score generally cannot later challenge that same score on the merits. It also confirms that Michigan sentencing courts may rely on a victim’s ordinary-language description of oral sex when determining whether an additional sexual penetration occurred.
For ineffective-assistance claims, the opinion reinforces that counsel is not deficient for declining to advance a sentencing argument that the evidentiary record and statutory definitions do not support.