People of Michigan v. Matthew Donald Gillies ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 12, 2020
Plaintiff-Appellee,
v No. 342182
Allegan Circuit Court
MATTHEW DONALD GILLIES, LC No. 16-020482-FH
Defendant-Appellant.
Before: SAWYER, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
Defendant, Matthew Donald Gillies, appeals as of by leave granted1 his sentence following
a guilty-plea conviction of producing child sexually abusive material, MCL 750.145c(2); and
second-degree criminal sexual conduct (CSC-II), MCL 750.520c(2)(b). The trial court sentenced
1
This Court originally denied defendant’s delayed application for leave to appeal. See People v
Gillies, unpublished order of the Court of Appeals, entered March 28, 2018 (Docket No. 342182).
Subsequently, our Supreme Court, pursuant to MCR 7.305(H)(1) and in lieu of granting leave to
appeal, remanded this case to this Court as on leave granted. In its remand order, the Supreme
Court stated:
By order of October 2, 2018, the application for leave to appeal the March
28, 2018 order of the Court of Appeals was held in abeyance pending the decision
in People v Carter (Docket No. 156606). On order of the Court, the case having
been decided on May 7, 2019, 503 Mich. 221 (2019), the application is again
considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal,
we REMAND this case to the Court of Appeals for consideration, as on leave
granted, of whether the defendant was properly assigned 25 points under Offense
Variable 12 (OV 12), MCL 777.42. In all other respects, leave to appeal is
DENIED, because we are not persuaded that the remaining questions presented
should be reviewed by this Court. [People v Gillies, 504 Mich. 961; 932 NW2d 780
(2019).]
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defendant to a term of 85 to 240 months in prison for the conviction of producing child sexually
abusive material, and a term of 71 to 180 months in prison for the CSC-II conviction, with 57 days’
credit for time served. On appeal, defendant argues that the trial court erred when it assessed 25
points for Offense Variable (OV) 12 under the sentencing guidelines. We affirm.
I. BACKGROUND
In July 2017, defendant pleaded guilty to one count of producing child sexually abusive
material and one count of CSC-II. At the plea hearing, the trial court established the factual basis
for the plea:
The Court: Thank You. Can you tell me what happened in regards to the
counts of child sexually abusive activity and criminal sexual conduct in the second
degree?
[Defendant]: Yes, your Honor. I deliberately made a video of myself with
a child under five, with her exposed butt and my erect penis.
[Defense Counsel]: And did your erect penis also touch her buttocks during
the video?
[Defendant]: Yes. It did.
* * *
The Court: And you said that you made a video. Did you take a—do
something with your phone or some other—
[Defendant]: Yes, ma’am. My phone.
The Court: So you used your phone, a smart phone of some sort—
[Defendant]: Yes.
The Court: To make a video and then you placed it on the internet through
some type of online messaging or site?
[Defendant]: Yes. I uploaded it to my account on Flickr.
On this factual basis, the trial court accepted defendant’s guilty plea. Defendant’s presentence
investigation report (PSIR) reflected that hundreds of images and video files containing child
pornography were found in two online accounts that defendant maintained and controlled.
II. ANALYSIS
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich. 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
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scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.
OV 12 of the sentencing guidelines addresses contemporaneous felonious acts. See MCL
777.42. MCL 777.42 provides, in pertinent part:
(1) Offense variable 12 is contemporaneous felonious criminal acts. Score
offense variable 12 by determining which of the following apply and by assigning
the number of points attributable to the one that has the highest number of points:
(a) Three or more contemporaneous felonious criminal acts involving
crimes against a person were committed .................................................. 25 points
* * *
(2) All of the following apply to scoring offense variable 12:
(a) A felonious criminal act is contemporaneous if both of the following
circumstances exist:
(i) The act occurred within 24 hours of the sentencing offense.
(ii) The act has not and will not result in a separate conviction
In People v McGraw, 484 Mich. 120, 125; 771 NW2d 655 (2009), our Supreme Court
explained that the plain language of OV 12 specifically requires courts to consider behavior outside
the sentencing offense. Subsequently, this Court explained that when scoring OV 12, “a court
must look beyond the sentencing offense and consider only those separate acts or behavior that did
not establish the sentencing offense.” People v Light, 290 Mich. App. 717, 723; 803 NW2d 720
(2010) (emphasis added).
After we initially denied leave to appeal in the present case, our Supreme Court decided
People v Carter, 503 Mich. 221; 931 NW2d 566 (2019). In Carter, a defendant “fired three shots,”
in quick succession, “through a door of an apartment he knew to be occupied.” Id. at 223. The
defendant was convicted of one count of assault with intent to commit great bodily harm. Id. At
sentencing, the trial court assessed 10 points under OV 12. After reviewing the record, our
Supreme Court determined that the prosecutor relied on all three shots to establish the basis for the
defendant’s conviction. Id. at 227-228. Therefore, our Supreme Court held that the trial court
erred when it determined that two of the three shots were beyond the sentencing offense and
assessed 10 points under OV 12. Id. at 230. Notably, our Supreme Court explained that it limited
its “holding to these facts because the prosecution relied on all three gunshots to establish” the
sentencing offense. Id. at 229.
In this case, defendant argues that the trial court erred when it assessed 25 points under
OV 12 because defendant did not commit three or more contemporaneous felonious acts.
Defendant’s argument lacks merit. In establishing a factual basis for defendant’s conviction of
producing child sexually abusive material in violation of MCL 750.145(c)(2) (a crime against a
person, MCL 777.16g(1)), the prosecutor relied on one of three videos defendant made on the
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same day. The prosecutor also relied on the same individual video to establish defendant’s CSC-
II conviction. Because the trial court relied on only this one video in establishing defendant’s plea,
only this one video constituted the underlying basis for the sentencing offenses of producing child
sexually abusive material and CSC-II. See Carter, 503 Mich. at 229-230. Defendant’s PSIR
reflected that defendant also produced two additional videos on that same day. These acts,
identical in pertinent part to the sentencing offense of producing child sexually abusive material,
could have constituted additional felonious acts under the same statute, MCL 750.145c(2). He
admitted using his cell phone to record the three videos, which could have constituted additional
felonious acts under MCL 752.796 (using a computer to commit a crime). He also possessed 64
files of child pornography on one of his Flickr accounts and 142 additional files of child
pornography on another of his Flickr accounts, which could have constituted additional felonious
acts under MCL 750.145c(4) (possession of child sexually abusive material).
Again, in Carter, our Supreme Court held that although the defendant fired three gunshots,
all three shots were a part of the single sentencing offense because the prosecutor relied on all
three shots in order to obtain a conviction. Carter, 503 Mich. at 228-230. In this case, the trial
court only relied on one of the three contemporaneous videos to establish the factual basis for
defendant’s plea. Based on the other two videos, the use of a cell phone to commit a crime, and
possession of additional child pornography, there was more than sufficient grounds for the trial
court to conclude that defendant committed three or more contemporaneous felonious acts beyond
the sentencing offense.
Affirmed.
/s/ David H. Sawyer
/s/ Michael J. Kelly
/s/ Brock A. Swartzle
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