Opinion
No. 138084.
December 2, 2009.
Appeal from the Court of Appeals No. 278577.
Summary Disposition.
I concur, but write separately to acknowledge the merit in defendant's claim that he was improperly assessed 25 points for OV 13 (continuing pattern of criminal behavior) because his most recent offense was committed ten years before the instant offense. People v Francisco, 474 Mich 82, 87 (2006) (only crimes committed within a five-year period are considered for the purposes of OV 13). Nonetheless, trial counsel expressed satisfaction with the inaccurate score that rendered defendant's sentence a 12V2-year upward departure from the range that would have resulted from an accurate score. In his application, defendant does not properly raise the claim that trial counsel was ineffective for failing to correct this scoring error. See People v Kimble, 470 Mich 305, 314 (2004). If there is to be relief, it must come in response to a motion for relief from judgment. MCR 6.508(D).
HATHAWAY, J., not participating. Justice HATHAWAY recuses herself and will not participate in this case as she was the presiding trial court judge. See MCR 2.003(B).