People v. Williams , 784 N.W.2d 206 ( 2010 )

784 N.W.2d 206 (2010)

PEOPLE of The State of Michigan, Plaintiff-Appellee,
v.
Jajuan Deshawn WILLIAMS, Defendant-Appellant.

Docket No. 140845. COA No. 295673.

Supreme Court of Michigan.

July 23, 2010.

Order

On order of the Court, the application for leave to appeal the February 12, 2010 order of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the sentence of the Oakland Circuit Court and REMAND this case to the trial court for resentencing. Because conduct subject to scoring under Offense Variable (OV) 12, MCL 777.42, must be considered under that variable before it is considered under OV 13, see People v. Bemer, 286 Mich.App. 26, 777 N.W.2d 464 (2009), and because conduct already scored under OV 12 must not be scored under OV 13, see MCL 777.43(2)(c), it appears that the defendant should have been assessed 5 points under OV 12, rather than 25 points under OV 13. The resulting change in the defendant's total OV score produces a lower applicable guidelines range, and the defendant is therefore entitled to resentencing. See People v. Francisco, 474 Mich. 82, 711 N.W.2d 44 (2006).

YOUNG, J., (concurring).

I concur in the order remanding this case for resentencing only because we are bound to do so under People v. Francisco, 474 Mich. 82, 711 N.W.2d 44 (2006). I write separately to reiterate my continued adherence to Justice CORRIGAN'S dissenting opinion in Francisco. Just as in Francisco, the current defendant's minimum sentence falls within the corrected minimum sentencing guidelines range. Accordingly, but for Francisco, I would hold that any error in scoring the guidelines was harmless and deny leave to appeal.

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

WEAVER, J., (dissenting).

I dissent. I would affirm and overrule People v. Francisco, 474 Mich. 82, 711 N.W.2d 44 (2006).