Opinion
Docket No. 148448. COA No. 313828.
2015-04-01
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Matthew Edward SIDERS, Defendant–Appellant.
Order
By order of April 23, 2014, the prosecuting attorney was directed to answer the application for leave to appeal the November 15, 2013 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered. Pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the sentence of the Monroe Circuit Court, and we REMAND this case to the trial court for resentencing. The trial court erred in scoring five points for Offense Variable (OV) 17, MCL 777.47. That offense variable can only be scored for larceny from a person, MCL 750.357, if the crime involved the operation of a vehicle, vessel, ORV, snowmobile, aircraft, or locomotive. MCL 777.22(1). In this case, the defendant's operation of a vehicle occurred after he completed the crime of larceny from a person. See People v. Smith–Anthony, 494 Mich. 669, 689 n. 61, 837 N.W.2d 415 (2013) (“In a larceny case, the crime is completed when the taking occurs.”); see also People v. McGraw, 484 Mich. 120, 122, 771 N.W.2d 655 (2009) (“[A] defendant's conduct after an offense is completed does not relate back to the sentencing offense for purposes of scoring offense variables unless a variable specifically instructs otherwise.”). Accordingly, in this case, OV 17 should not be scored. This lowers the defendant's guidelines range to 29 to 71 months. Under People v. Francisco, 474 Mich. 82, 89, 711 N.W.2d 44 (2006), the defendant is entitled to resentencing.