Background
Steven LaFollette sexually assaulted his 15-year-old adoptive niece during a family camping trip in late May and early June 2019. He was originally charged with third-degree criminal sexual conduct (CSC-III) for sexual penetration and fourth-degree CSC (CSC-IV) for sexual contact, both involving a victim aged 13 to 16. Through plea negotiations, LaFollette pleaded guilty to a third charge of second-degree CSC (CSC-II) under MCL 750.520c(1)(b)(ii)—sexual contact with a victim aged 13 to 16 who was related to the defendant—in exchange for dismissal of the original two counts.
At the plea hearing, LaFollette admitted that on one or more occasions he placed the victim’s foot on his penis for a sexual purpose, with defense counsel clarifying this involved a foot fetish. The presentence investigation report (PSIR) provided a fuller account: the victim described two separate incidents. The first occurred at a tire stack playground, where LaFollette rubbed her feet and shoulders while she sat on his lap. The second, more serious incident occurred the next day in LaFollette’s camper, where he—while intoxicated—massaged and kissed the victim’s feet, removed her clothing, groped her buttocks hard enough to leave bruising, attempted vaginal penetration with his penis, and ultimately digitally penetrated her vagina.
At sentencing, the trial court scored offense variable (OV) 11 at 25 points for one criminal sexual penetration arising out of the sentencing offense, and OV 3 at 5 points. LaFollette’s minimum guidelines range was 43 to 86 months; the court sentenced him to 84 to 180 months (7 to 15 years). LaFollette appealed on leave granted after the Michigan Supreme Court remanded following an initial denial by the Court of Appeals.
The Court’s Holding
The Court of Appeals affirmed the sentence on all grounds. On OV 11, the court held that the trial court did not clearly err in finding that the digital penetration and the sentencing offense both arose from the single camper incident, constituting one transaction rather than separate events. Applying the standard from People v. Johnson, 474 Mich 96 (2006), the court found the penetration occurred at the same place, under the same circumstances, and during the same course of conduct as the sentencing offense, satisfying the “arising out of” requirement for a 25-point score. The court rejected LaFollette’s unsupported assertion that his plea was based on the tire-stack incident rather than the camper incident, noting nothing in the record—including the plea colloquy, the PSIR, or the sentencing hearing discussion—supported that reading.
On proportionality, the court held that a within-guidelines sentence is presumptively proportionate and that LaFollette failed to identify any unusual circumstances sufficient to overcome that presumption. His argument—that the conduct amounted to little more than massages, a foot fetish, and “one digital penetration”—was found wholly insufficient to meet the defendant’s burden under People v. Posey, 512 Mich 317 (2023). The court also declined to address LaFollette’s cruel-and-unusual-punishment claim under the U.S. Eighth Amendment and Michigan Constitution Article I, § 16, finding it improperly presented due to the absence of any meaningful legal argument or factual support.
Key Takeaways
- For OV 11 scoring purposes, a criminal sexual penetration “arises out of” the sentencing offense when it occurs at the same place, under the same circumstances, and during the same course of conduct — uncharged penetrations meeting that standard are scorable.
- A defendant’s unsupported post-plea assertion that the sentencing offense referred to a different incident than what the PSIR and sentencing record reflect will not be credited to defeat an OV score.
- A within-guidelines sentence carries a presumption of proportionality that the defendant bears the burden of rebutting through “unusual circumstances”; minimizing the nature of the offense does not satisfy that burden.
- Constitutional claims of cruel and/or unusual punishment are waived on appeal when the defendant provides no meaningful legal argument or supporting authority.
Why It Matters
This decision reinforces the broad factual record a Michigan sentencing court may consult — including PSIR narratives and reasonable inferences — when scoring offense variables, even where the conduct described extends beyond the elements of the crime to which the defendant pleaded guilty. Defense counsel negotiating pleas should anticipate that uncharged conduct detailed in a PSIR can drive significant OV scores if it shares a transactional nexus with the sentencing offense.
The case also illustrates the high bar defendants face when challenging within-guidelines sentences on proportionality grounds after Posey. Characterizing serious conduct as less severe than charged will not, by itself, rebut the presumption of proportionality — defendants must point to genuinely unusual circumstances tied to themselves or the offense.