People v. Anthony , 485 Mich. 992 ( 2009 )

774 N.W.2d 924 (2009)

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Michael Lorenzo ANTHONY, Defendant-Appellant.

Docket No. 138084. COA No. 278577.

Supreme Court of Michigan.

December 2, 2009.

Order

On order of the Court, the application for leave to appeal the November 20, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

MARKMAN, J. {concurring).

I concur, but write separately to acknowledge the merit in defendant's claim that he was improperly assessed 25 points for OV 13 (continuing pattern of criminal behavior) because his most recent offense was committed ten years before the instant offense. People v. Francisco, 474 Mich. 82, 87, 711 N.W.2d 44 (2006) (only crimes committed within a five-year period are considered for the purposes of OV 13). Nonetheless, trial counsel expressed satisfaction with the inaccurate score that rendered defendant's sentence a 12 ½-year upward departure from the range that would have resulted from an accurate score. In his application, defendant does not properly raise the claim that trial counsel was ineffective for failing to correct this scoring error. See People v. Kimble, 470 Mich. 305, 314, 684 N.W.2d 669 (2004). If there is to be relief, it must come in response to a motion for relief from judgment. MCR 6.508(D).

HATHAWAY, J., not participating. Justice HATHAWAY recuses herself and will not participate in this case as she was the presiding trial court judge. See MCR 2.003(B).