Opinion
SC: 160213 COA: 348612
02-05-2020
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Philip Charles SWIFT, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the July 15, 2019 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE defendant’s sentence and REMAND this case to the Muskegon Circuit Court. Offense Variable 4 appears to have been scored based solely on the prosecutor’s assertion. However, an attorney’s statements are not evidence, People v. Ison , 132 Mich. App. 61, 68, 346 N.W.2d 894 (1984), and offense variables must be scored based on a preponderance of the evidence, People v. Hardy , 494 Mich. 430, 438, 835 N.W.2d 340 (2013). Because a 10-point reduction for Offense Variable 4 would result in a lower sentencing range, defendant is entitled to resentencing. People v. Francisco , 474 Mich. 82, 711 N.W.2d 44 (2006).
We do not retain jurisdiction.