People of Michigan v. John Joseph Barrera ( 2016 )

Order Michigan Supreme Court
Lansing, Michigan
September 29, 2016 Robert P. Young, Jr.,
Chief Justice
151282 Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
v SC: 151282
COA: 324831
Saginaw CC: 14-039708-FC
JOHN JOSEPH BARRERA,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the January 21, 2015
order of the Court of Appeals is considered. We DIRECT the Saginaw County
Prosecuting Attorney to answer the application for leave to appeal within 28 days after
the date of this order. The prosecutor shall specifically address whether, pursuant to
People v Thompson, 488 Mich. 888 (2010) and People v Spanke, 254 Mich. App. 642
(2003), Offense Variable 8, MCL 777.38, should not have been scored in this case where
the movement was “incidental” to the offense of criminal sexual conduct in the second
degree. See also People v Hardy, 494 Mich. 430, 442 (2013) (“[A]bsent an express
prohibition, courts may consider conduct inherent in a crime when scoring offense
variables.”).
The application for leave to appeal remains pending.
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.
September 29, 2016
t0922
Clerk