A party shall not raise on appeal an issue challenging the scoring of the sentencing guidelines or challenging the accuracy of information relied upon in determining a sentence that is within the appropriate guidelines sentence range unless the party has raised the issue at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals. In People v. Kimble, 470 Mich. 305, 310–312, 684 N.W.2d 669 (2004), the defendant appealed his sentence, arguing that OV 16 had been improperly scored. In the trial court, the defendant had argued that OV 16 should be scored at 1 point instead of 5 points; on appeal, he argued—for a different reason—that OV 16 should not have been scored at all.
But because Kenneth did not object to the trial court's scoring of OV 4 on the same ground asserted on appeal, this scoring challenge is unpreserved. People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004) (an objection to the scoring of a guidelines variable on one ground is insufficient to preserve an appellate attack on a different ground). Therefore, we review the issue for plain error affecting Kenneth's substantial rights.
People v Metamora Water Serv, 276 Mich App 376, 382; 741 NW2d 61 (2007). Objections made by a party must be timely, and specify the same ground for challenge as the party asserts on appeal. See People v Kimble, 470 Mich 305, 309; 684 NW2d 669 (2004); People v Danto, 294 Mich App 596, 605; 822 NW2d 600 (2011). In this case, defendant argued, both during the motion in limine before the second trial and at the second trial, that the evidence regarding King was relevant.
This issue is not preserved because defendant did not raise it at sentencing, in a motion for resentencing, or in a motion to remand filed with this Court. See People v Kimble, 470 Mich 305, 312; 684 NW2d 669 (2004); see also MCL 769.34(10). Maintaining a drug house, the sentencing offense in this case, is a class G offense.
In People v. McDaniel, 256 Mich App 165, 172; 662 NW2d 101 (2003), the Court of Appeals held that "any five-year period may be utilized," observing: The defendant in McDaniel filed an application for leave to appeal in this Court and we held it in abeyance, 668 NW2d 909 (2003), for People v. Kimble, 470 Mich 305; 684 NW2d 669 (2004). After we issued our decision in Kimble, and after we scheduled oral argument on whether to grant the application or take other peremptory action permitted by MCR 7.302(G)(1), 471 Mich 934 (2004), we dismissed the application upon stipulation of the parties. 692 NW2d 387 (2005).
Summary Disposition. In lieu of granting leave to appeal, the case is remanded to the Grand Traverse Circuit Court for resentencing in light of People v. Kimble, 470 Mich 305 (2004), as the court erred in using the same sexual penetration in scoring OV 11 and OV 13. MCR 7.302(G)(1). Jurisdiction is not retained.
People v Kimble, 470 Mich. 305, 312; 684 N.W.2d 669 (2004).
We review unpreserved scoring challenges for plain error affecting substantial rights. People v Kimble, 470 Mich. 305, 312; 684 N.W.2d 669 (2004); People v Carines, 460 Mich. 750, 764; 597 N.W.2d 130 (1999).
Therefore, these arguments are preserved. People v Kimble, 470 Mich. 305, 311-312; 684 N.W.2d 669 (2004); People v Francisco, 474 Mich. 82, 89; 711 N.W.2d 44 (2006); MCL 769.34(10).
Thus, sentencing guidelines scoring issues are only reviewable if the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand. People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004). Defendant failed to raise his PRV 5 challenge in any of the three permissible manners, bringing it up for the first time in this Court on appeal.