Order Michigan Supreme Court 

Lansing, Michigan 

April 4, 2008 Clifford W. Taylor,

 Chief Justice 

135576 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman, Plaintiff-Appellant, Justices 

v SC: 135576 

 COA: 271928 
 Wayne CC: 06-002943-01 

JERRY LEE MOORE,

Defendant-Appellee. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the November 27, 2007 

judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in 

lieu of granting leave to appeal, we REVERSE that part the judgment of the Court of 

Appeals finding insufficient evidence that the defendant possessed a firearm and 

overturning his conviction for being a felon in possession of a firearm. The jury could 

reasonably infer that the defendant exercised control over the firearm by eluding the 

police until his passenger could dispose of the firearm. People v Hill, 433 Mich 464 

(1989). We REMAND this case to the Court of Appeals for further proceedings not 

inconsistent with this order, including consideration of other issues raised by the 

defendant in his appeal of right. 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. 

CORRIGAN, J., concurs in part, dissents in part, and states as follows: 

I concur with the majority’s decision to reinstate defendant’s conviction of being a 

felon in possession of a firearm on the basis that the evidence was sufficient that 

defendant possessed a firearm. I dissent, however, from the majority’s decision to deny 

the part of the prosecution’s application for leave to appeal arguing that the Court of 

Appeals erred in remanding the case for resentencing. 

 Defendant was convicted of third-degree fleeing and eluding a police officer and 

felon in possession of a firearm. At sentencing, the trial court incorrectly stated that it 

had the power to impose consecutive sentences. Defendant did not object to this 
 

2 

statement. Despite the trial court’s statement, it nonetheless imposed concurrent 

sentences that were within the sentencing guidelines range. The Court of Appeals held 

that defendant was entitled to resentencing because his sentence was based on inaccurate 

information (i.e., the trial court’s mere belief that it could impose consecutive sentences). 

This case truly presents a textbook example of harmless error. 

In my opinion, the Court of Appeals incorrectly held that defendant was entitled to 

resentencing because of inaccurate information. If a sentence is within the appropriate 

guidelines range (as defendant’s was), a defendant is precluded from raising on appeal an 

issue challenging the accuracy of the information relied upon in sentencing unless the 

issue was raised at sentencing, in a proper motion for resentencing, or in a proper motion 

to remand. MCL 769.34(10)1

; People v Francisco, 474 Mich 82, 88-89 (2006), citing 

People v Kimble, 470 Mich 305, 310-311 (2004). If the sentence is within the 

appropriate guidelines range and the defendant failed to previously raise the sentencing 

error, “the defendant cannot raise the error on appeal except where otherwise appropriate, 

as in a claim of ineffective assistance of counsel.” Francisco, supra at 90 n 8. 

Defendant does not dispute that the trial court sentenced defendant within the 

appropriate guidelines range. Therefore, under MCL 769.34(10), defendant could argue 

on appeal that his sentence was based on inaccurate information only if he properly 

preserved the issue by raising the issue at sentencing, in a proper motion for resentencing, 

or in a proper motion to remand filed in the Court of Appeals. Defendant failed to take 

the statutorily required steps to preserve this issue. Defendant did not object at 

sentencing to the trial court’s statement that he was subject to consecutive sentencing. 

Although defendant raised the issue in a motion for resentencing2

 in the trial court and a 

motion to remand in the Court of Appeals, both motions were late. See MCR 

1 MCL 769.34(10) provides: 

If a minimum sentence is within the appropriate guidelines sentence range, 

the court of appeals shall affirm that sentence and shall not remand for 

resentencing absent an error in scoring the sentencing guidelines or 

inaccurate information relied upon in determining the defendant’s sentence. 

A party shall not raise on appeal an issue challenging the scoring of the 

sentencing guidelines or challenging the accuracy of information relied 

upon in determining a sentence that is within the appropriate guidelines 

sentence range unless the party has raised the issue at sentencing, in a 

proper motion for resentencing, or in a proper motion to remand filed in 

the court of appeals. [Emphasis added.] 

2

 Defendant actually wrote the trial judge a letter, but the trial court treated the letter as a 

motion to correct the presentence investigation report. 
 _________________________________________ 

 

 

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6.429(B)(2).3 In fact, defendant filed these motions after he filed his claim of appeal in 

the Court of Appeals. Because the motions were untimely, defendant did not preserve the 

issue by raising it in a proper motion for resentencing or a proper motion to remand. See 

People v Walker, 428 Mich 261, 266 (1987) (to preserve a scoring issue for appeal, a 

defendant’s motion to remand in the Court of Appeals must be timely). Thus, defendant 

is precluded under MCL 769.34(10) from challenging the accuracy of the information 

relied on in imposing his sentence.4

 I would reverse the Court of Appeals holding that 

defendant is entitled to resentencing. 

KELLY, J., would deny leave to appeal. 

3

 MCR 6.429(B)(2) provides, “If a claim of appeal has been filed, a motion to correct an 

invalid sentence may only be filed in accordance with the procedure set forth in MCR 

7.208(B) or the remand procedure set forth in MCR 7.211(C)(1).” Both defendant’s 

motion for resentencing and motion for remand were late under MCR 6.429(B)(2). 

4

 This case is distinguishable from Francisco. In Francisco, supra at 89, this Court 

considered the defendant’s challenge to the offense variables because the defendant 

preserved the issue at sentencing. In the instant case, defendant did not preserve the 

sentencing issue. Further, in Francisco, this Court remanded for resentencing because 

the trial court’s scoring error affected the guidelines range. In the instant case, the trial 

court’s erroneous belief that defendant was subject to consecutive sentencing did not 

affect the guidelines range. 

p0401 

I, Corbin R. Davis, 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. 

April 4, 2008 

Clerk