Opinion
SC 163010 COA 348555
06-10-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRIAN WILLIAM FURLONG, Defendant-Appellant.
Jackson CC: 16-005507-FC
Bridget M. McCormack, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Elizabeth M. Welch, Justices
ORDER
By order of January 26, 2022, while retaining jurisdiction, we remanded this case to the Court of Appeals to consider whether 50 points were correctly assigned to Offense Variable (OV) 13 pursuant to MCL 777.43(1)(a) in light of People v Nelson, 491 Mich. 869 (2012). On order of the Court, the Court of Appeals having issued its opinion on remand on March 10, 2022, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE that part of the March 25, 2021 judgment of the Court of Appeals affirming the Jackson Circuit Court's scoring of OV 13 for the reasons given by the Court of Appeals majority in its March 10 opinion on remand. Accordingly, we VACATE the defendant's sentence and REMAND this case to the trial court for resentencing. As noted by the Court of Appeals majority on remand, based on the reasoning of Nelson, 50 points may only be assigned to OV 13 if the sentencing offense is first-degree criminal sexual conduct involving the penetration of a victim under the age of 13 and is part of a pattern of other sexual penetrations of a victim under the age of 13. The sentencing offense in the instant case did not involve sexual penetration of a person less than 13 years of age, so 50 points should not have been assigned to OV 13.
Welch, J. (dissenting).
I respectfully dissent from this Court's decision to peremptorily reverse the portion of the Court of Appeals' judgment that affirmed the scoring of OV 13 at 50 points, MCL 777.43(1)(a) ("The offense was part of a pattern of felonious criminal activity involving 3 or more sexual penetrations against a person or persons less than 13 years of age."). I agree with the Court of Appeals' dissenting opinion that People v Nelson, 491 Mich. 869 (2012), and People v Aldridge, unpublished per curiam opinion of the Court of Appeals, issued June 4, 2020 (Docket No. 349082), are distinguishable and do not preclude a 50-point score for OV 13 under the facts of this case. See People v Furlong (On Remand), unpublished per curiam opinion of the Court of Appeals, issued March 10, 2022 (Docket No. 348555) (Servitto, J., dissenting).