People of Michigan v. Salvador Gutierrez ( 2017 )

Order Michigan Supreme Court
Lansing, Michigan
May 17, 2017 Stephen J. Markman,
Chief Justice
Brian K. Zahra
Bridget M. McCormack
154697 David F. Viviano
Richard H. Bernstein
Joan L. Larsen
Kurtis T. Wilder,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 154697
COA: 333964
Leelanau CC: 15-001870-FH
SALVADOR GUTIERREZ,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 13, 2016
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 the sentence of the Leelanau Circuit Court and we
REMAND this case to that court for resentencing. The defendant was improperly
assigned ten points on Offense Variable 9 (OV 9), MCL 777.39, because the facts found
by the trial court did not establish an evidentiary basis for concluding that any victim of
the defendant’s crime was placed in danger of physical injury or death or in danger of
property loss. MCL 777.39(1)(d); People v Hardy, 494 Mich. 430, 438 (2013). On
remand, the trial court shall rescore this variable at zero points. The resulting change in
the defendant’s total OV score produces a lower guidelines range, entitling the defendant
to resentencing. See People v Francisco, 474 Mich. 82, 88-90 (2006). In all other
respects, leave to appeal is DENIED, because we are not persuaded that the remaining
question presented should be reviewed by this Court.
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.
May 17, 2017
s0510
Clerk