Opinion
No. 138986.
October 23, 2009.
Appeal from the Court of Appeals No. 291110.
Actions on Applications for Leave to Appeal from the Court of Appeals.
Summary Disposition.
Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we vacate the sentence of the Genesee Circuit Court and we remand this case to the trial court for resentencing. The trial court shall reconsider the scoring of offense variable 3, MCL 777.33, in light of this Court's opinion in People v McGraw, 484 Mich 120 (2009). On remand, the trial court shall sentence the defendant within the appropriate sentencing guidelines range, or articulate on the record a substantial and compelling reason for departing from the sentencing guidelines range in accordance with People v Babcock, 469 Mich 247 (2003). 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.
I concur in the order remanding for resentencing because this Court's decision in People v McGraw, 484 Mich 120 (2009), may affect the scoring of offense variable 3 (physical injury to victim), but I continue to adhere to my dissenting opinion in McGraw, 484 Mich at 136.
Although People v McGraw, 484 Mich 120 (2009), controls the scoring of offense variable 3 (physical injury to victim), I continue to adhere to the position stated in Justice CORRIGAN'S dissent in McGraw, 484 Mich at 136, with which I concurred.
I dissent because I would not vacate the sentence and remand this case. Instead, I would grant leave to appeal in order to reconsider People v McGraw, 484 Mich 120 (2009), for the reasons stated in the dissenting opinion in that case, id. at 136.