People v. Davis , 471 Mich. 891 ( 2004 )

687 N.W.2d 597 (2004) 471 Mich. 891

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Tyrone Carnell DAVIS, Defendant-Appellant.

Docket No. 125925. COA No. 253320.

Supreme Court of Michigan.

October 8, 2004.

On order of the Court, the application for leave to appeal the February 19, 2004 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 Court of Appeals order and REMAND this case to the Ingham Circuit Court for resentencing, as the court failed to articulate on the record a substantial and compelling reason for departing from the sentencing guidelines range. On remand, the court shall sentence defendant within the 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).

YOUNG, J., concurs and states as follows:

I concur in the majority's decision to vacate the Court of Appeals order and remand this case to the Ingham Circuit Court for resentencing. The reasons proffered by the trial court to justify departure from the sentencing guidelines do not pass muster under People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003). However, the fact that the defendant sexually assaulted the complainant in a public school—a place where children are entitled to pursue their education without fear of personal harm— may be a substantial and compelling basis for departure on remand that is not factored into the guidelines.

CORRIGAN, C.J., joins in the statement of YOUNG, J.

MICHAEL F. CAVANAGH, J., would deny leave to appeal.

WEAVER, J., would deny leave to appeal for lack of merit in the grounds presented.