Opinion
No. 142843.
July 22, 2011.
Court of Appeals No. 302290.
Leave to Appeal Denied July 22, 2011.
I dissent from the order denying defendant's application for leave to appeal because I believe that offense variable (OV) 10 was improperly scored. As I stated in my concurring statement in People v Brandt, 489 Mich 875, 876 (2011), OV 10 contemplates a living human victim; an institutional victim cannot be a vulnerable victim as contemplated by the definition of "vulnerability" in MCL 777.40(3)(c). Accordingly, zero points should have been assessed for OV 10. Since the resulting change in defendant's total OV score would produce a lower recommended minimum sentence range under the sentencing guidelines, I would vacate defendant's sentence and remand the case for resentencing with instructions to the trial judge to assess zero Points for OV 10. See People v Francisco, 474 Mich 82 (2006).
CAVANAGH, J., joined the statement of MARILYN KELLY, J.