Opinion
Docket No. 151282. COA No. 324831.
09-29-2016
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. John Joseph BARRERA, Defendant–Appellant.
Order
On order of the Court, the application for leave to appeal the January 21, 2015 order of the Court of Appeals is considered. We DIRECT the Saginaw County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order. The prosecutor shall specifically address whether, pursuant to People v. Thompson, 488 Mich. 888, 788 N.W.2d 677 (2010) and People v. Spanke, 254 Mich.App. 642, 658 N.W.2d 504 (2003), Offense Variable 8, MCL 777.38, should not have been scored in this case where the movement was “incidental” to the offense of criminal sexual conduct in the second degree. See also People v. Hardy, 494 Mich. 430, 442, 835 N.W.2d 340 (2013) (“[A]bsent an express prohibition, courts may consider conduct inherent in a crime when scoring offense variables.”).
The application for leave to appeal remains pending.