Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h
Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,
J ustices 

# 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 appli cation for leave to appeal the June 23, 2009 judgment of the Cour t 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 Circu it Court, and we REMAND this case to the sentencing court for resentencing. The pros ecutor has conceded that the scoring of 5 points for offense variable 3 (bodily inju ry not requiring medical treatment), MCL 777.33(1)(e), was erroneous under People v McGraw , 484 Mich 120 (2 009), and that
correction of this error would render the defe ndant’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 th e victim “when deciding what sentence to impose within the appropriate guidelines range and whet her 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 Mi chigan Supreme Cour t, 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

C ORRIGAN , J. ( concurring ).

I concur with the remand order becaus e 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.

Y OUNG , J. ( concurring ).

I concur with the remand order becaus e 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 positi on stated in Justice

C ORRIGAN ’s dissent in McGraw

, 3 with which I concurred.

W EAVER , J. ( dissenting ).

This Court heard oral argument on whethe r to grant the application for leave to appeal or take other peremptory action in th is case. I would gran t 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 (C ORRIGAN , J., dissent).