Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

May 28, 2010 

139413 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v SC: 139413 

 COA: 283954 

Ingham CC: 07-000500-FH 

LEDELL MARVIN MUSHATT, 

Defendant-Appellant. 

_________________________________________/ 

 On March 10, 2010, the Court heard oral argument on the application for leave to 

appeal the June 23, 2009 judgment of the Court of Appeals. MCR 7.302(H)(1). In lieu 

of granting leave to appeal, we REVERSE in part the judgment of the Court of Appeals, 

we VACATE the sentence of the Ingham Circuit Court, and we REMAND this case to 

the sentencing court for resentencing. The prosecutor has conceded that the scoring of 5 

points for offense variable 3 (bodily injury not requiring medical treatment), MCL 

777.33(1)(e), was erroneous under People v McGraw, 484 Mich 120 (2009), and that 

correction of this error would render the defendant’s current sentence in excess of the 

corrected minimum sentence range. On remand, the “[o]ffense variables must be scored 

giving consideration to the sentencing offense alone,” id. at 133, but the sentencing court 

may consider the injury to the victim “when deciding what sentence to impose within the 

appropriate guidelines range and whether to depart from the guidelines 

recommendation.” Id. at 129. 

 Further, we clarify that the retroactive effect of McGraw is limited to cases 

pending on appeal when McGraw was decided and in which the scoring issue had been 

raised and preserved.1

 The appeal in this case was pending when McGraw was decided, 

and the issue was raised and preserved. 

 

1

 See, e.g., People v Cornell, 466 Mich 335, 367; 646 NW2d 127 (2002). 
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. 

 _________________________________________ 

 Clerk

May 28, 2010 

0519 

 

2

 CORRIGAN, J. (concurring). 

 I concur with the remand order because the prosecutor has conceded that 

defendant’s OV-3 score was erroneous under People v McGraw, 484 Mich 120; 771 

NW2d 655 (2009). Nonetheless, I continue to adhere to the views expressed in my 

dissenting opinion in McGraw, supra at 136. 

 YOUNG, J. (concurring). 

 I concur with the remand order because the prosecutor conceded that the 

defendant’s OV-3 score was erroneous under People v McGraw.

2

 Although McGraw

controls the scoring of OV-3, I continue to adhere to the position stated in Justice 

CORRIGAN’s dissent in McGraw,

3

 with which I concurred. 

 WEAVER, J. (dissenting). 

 This Court heard oral argument on whether to grant the application for leave to 

appeal or take other peremptory action in this case. I would grant leave to consider 

whether People v McGraw, 484 Mich 120; 771 NW2d 665 (2009), was wrongly decided 

as per the dissent in that case. I continue to believe that McGraw was wrongly decided in 

a 4 to 3 decision, and I believe that a remand in this case based on McGraw is a waste of 

judicial resources. 

 

2

 484 Mich 120; 771 NW2d 655 (2009) 

3 Id. at 136 (CORRIGAN, J., dissent).