People of Michigan v. Jim Clarence Lutz Jr ( 2013 )

Order Michigan Supreme Court
Lansing, Michigan
September 18, 2013 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
146699 Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 146699
COA: 310127
Hillsdale CC: 11-352663-FH
JIM CLARENCE LUTZ, JR.,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 18, 2012
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 Hillsdale Circuit Court, and
we REMAND this case to the trial court for resentencing. The trial court articulated
substantial and compelling reasons to support a departure from the presumed applicable
sentencing guidelines range; however, zero points should have been scored for Offense
Variables 1 and 2 because the methamphetamine in this case was not used or possessed
as a weapon. See MCL 777.31(1), MCL 777.32(1), and People v Ball, 297 Mich App
121 (2012). The resulting change in the defendant’s total OV score produces a lower
guidelines range, and he is therefore entitled to resentencing. See People v Francisco,
474 Mich 82 (2006). On remand, should the trial court decide to again depart from the
corrected sentencing guidelines range, it shall articulate a rationale justifying the extent
of the particular departure. See People v Smith, 482 Mich 292 (2008).
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 18, 2013
s0911
Clerk