People of Michigan v. Juan Delavonte Davis , 920 N.W.2d 146 ( 2018 )

Order Michigan Supreme Court
Lansing, Michigan
December 7, 2018 Stephen J. Markman,
Chief Justice
157245 Brian K. Zahra
Bridget M. McCormack
David F. Viviano
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Kurtis T. Wilder
Elizabeth T. Clement,
v SC: 157245 Justices
COA: 341047
Berrien CC: 2017-001259-FH
JUAN DELAVONTE DAVIS,
Defendant-Appellant.
_____________________________________/
By order of October 19, 2018, the prosecuting attorney was directed to answer the
application for leave to appeal the December 26, 2017 order of the Court of Appeals. On
order of the Court, the answer having been received, 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 the sentence of the Berrien Circuit Court, and REMAND this case to that
court for resentencing. The circuit court clearly erred by assigning 50 points under
Offense Variable 15 (OV 15), MCL 777.45. The guidelines variables are scored by
reference to the record. People v Osantowski, 481 Mich. 103, 111 (2008). The trial
court’s factual determinations are reviewed for clear error and must be supported by a
preponderance of the evidence. People v Hardy, 494 Mich. 430, 438 (2013). Given the
small quantity of the controlled substance at issue, the absence of other indicia of
possession with the intent to deliver, the uncontested evidence that the substance was
found crushed in the defendant’s pocket, his history of substance abuse as evidenced by
the presentence investigation report, and the fact that he was not charged with delivery of
a controlled substance, the record evidence preponderates in favor of the conclusion that
the defendant possessed the controlled substance at issue for personal use, and not with
“the intent to deliver . . . in this state,” as is required by MCL 777.45(1)(d). Specifically,
on this record, the evidence that the one pill at issue was crushed into fragments does not
prove by a preponderance of the evidence that the defendant intended to transfer the
controlled substance to another individual regardless of remuneration. See MCL
777.45(2)(a). Because the deduction of points erroneously assigned under OV 15 affects
the defendant’s guidelines range, he is entitled to resentencing. People v Francisco, 474
Mich. 82 (2006).
We do not retain jurisdiction.
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.
December 7, 2018
a1204
Clerk