People v. Woolsey

739 N.W.2d 611, 480 Mich. 909

• Court: Michigan Supreme Court
• Decided: October 17, 2007
• Docket: 133654
• Status: Published

Opinion

739 N.W.2d 611 (2007)

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Mark Allen WOOLSEY, Defendant-Appellant.

Docket No. 133654. COA No. 274110.

Supreme Court of Michigan.

October 17, 2007.

On order of the Court, the application for leave to appeal the December 6, 2006 order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE the sentence of the Macomb Circuit Court and we REMAND this case to the circuit court for resentencing under properly scored sentencing guidelines. People v. Kimble, 470 Mich. 305, 684 N.W.2d 669 (2004). A defendant is entitled to be scored on the basis of accurate information, which includes accurately scored guidelines. People v. Francisco, 474 Mich. 82, 88-89, 711 N.W.2d 44 (2006). The defendant argues that he should have received zero points for OV 3, as is appropriate when "[n]o physical injury occurred to a victim." MCL 777.33(1)(f). Here, the evidence was insufficient to support a score of 5 points for OV 3. While resentencing would "not [be] required where the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range" [People v. Mutchie, 468 Mich. 50, 51, 658 N.W.2d 154 (2003)], the trial court neither gave a reason to deny the defendant's objection to the scoring of OV 3 nor did it state that it would impose the same sentence regardless of the scoring error. On remand, the trial court shall sentence the defendant within the appropriate sentencing guidelines range, or articulate on the record a substantial and compelling reason for departing from the sentencing guidelines range in accordance with People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003). In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.

We do not retain jurisdiction.