Opinion
SC: 162589 COA: 347705
12-01-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Travis TOENSFELDT, Defendant-Appellant.
Order
By order of July 9, 2021, the prosecuting attorney was directed to answer the application for leave to appeal the October 15, 2020 judgment of the Court of Appeals. In lieu of filing an answer, the prosecuting attorney filed a motion to remand for resentencing. On order of the Court, the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE Section V of the Court of Appeals opinion, and we REMAND this case to the Oscoda Circuit Court for resentencing. As the prosecuting attorney concedes, the conduct giving rise to the instant case occurred before the entry of the defendant's 2016 conviction for possession of less than 25 grams of a controlled substance. Accordingly, the circuit court erred by treating the 2016 conviction as a prior conviction for purposes of applying the habitual offender enhancement, see MCL 769.12, and scoring Prior Record Variable 2, see MCL 777.52. Because correcting these errors would change the applicable guidelines range, resentencing is required. See People v. Francisco , 474 Mich. 82, 89-91, 711 N.W.2d 44 (2006). In all other respects, leave to appeal is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is GRANTED consistent with this order.