People of Michigan v. John Joseph Barrera

• Court: Michigan Supreme Court
• Decided: September 29, 2016
• Docket: 151282
• Status: Published

Opinion

Order Michigan Supreme Court Lansing, Michigan

September 29, 2016 Robert P. Young, Jr., Chief Justice

151282 Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen, Plaintiff-Appellee, Justices

v SC: 151282 COA: 324831 Saginaw CC: 14-039708-FC JOHN JOSEPH BARRERA, Defendant-Appellant.

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On order of the Court, the application for leave to appeal the January 21, 2015 order of the Court of Appeals is considered. We DIRECT the Saginaw County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order. The prosecutor shall specifically address whether, pursuant to People v Thompson, 488 Mich 888 (2010) and People v Spanke, 254 Mich App 642 (2003), Offense Variable 8, MCL 777.38, should not have been scored in this case where the movement was “incidental” to the offense of criminal sexual conduct in the second degree. See also People v Hardy, 494 Mich 430, 442 (2013) (“[A]bsent an express prohibition, courts may consider conduct inherent in a crime when scoring offense variables.”).

The application for leave to appeal remains pending.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. September 29, 2016 t0922 Clerk