Opinion
Docket Nos. 151219. COA No. 318872.
11-02-2016
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. James Allen CHANDLER, Defendant–Appellant.
Order
On order of the Court, the application for leave to appeal the January 27, 2015 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the last paragraph of Section III.B. of the Court of Appeals opinion, and we REMAND this case to the Isabella Circuit Court. The trial court shall consider whether the defendant was properly assigned 15 points on Offense Variable 10 (OV 10) for “predatory conduct” under MCL 777.40(1)(a) and (3)(a), or whether the 15–point score was improperly based solely on the conduct of the defendant's co-offenders. See People v. Gloster, 499 Mich. 199, 880 N.W.2d 776 (2016). If the trial court determines that OV 10 was scored incorrectly, the court shall resentence the defendant. People v. Francisco, 474 Mich. 82, 711 N.W.2d 44 (2006). If, however, the trial court determines that OV 10 was correctly scored, the court shall determine whether it would have imposed a materially different sentence under the sentencing procedure described in People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015). In making this determination, the trial court shall follow the procedure described in Part VI of our opinion. If the trial court determines that it would have imposed the same sentence absent the unconstitutional constraint on its discretion, it may reaffirm the original sentence. If, however, the trial court determines that it would not have imposed the same sentence absent the unconstitutional constraint on its discretion, it shall resentence the defendant. 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. The motion to remand and for appointment of appellate counsel is DENIED.
We do not retain jurisdiction.