People v. Lenderman ( 2009 )

773 N.W.2d 664 (2009)

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Scott Alvin LENDERMAN, Defendant-Appellant.

Docket No. 138986, COA No. 291110.

Supreme Court of Michigan.

October 23, 2009.

Order

On order of the Court, the application for leave to appeal the May 7, 2009 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 Genesee Circuit Court and we REMAND this case to the trial court for resentencing. The trial court shall reconsider the scoring of Offense Variable 3, MCL 777.33, in light of this Court's opinion in People v. McGraw, 484 Mich. 120, 771 N.W.2d 655 (2009). On remand, the trial court shall sentence the defendant within the appropriate sentencing guidelines range, or articulate on the record a substantial and compelling reason for departing from the sentencing guidelines range in accordance" with People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003). In all other respects, leave to appeal is DENIED because we are not persuaded that the remaining questions presented should be reviewed by this Court.

CORRIGAN, J. (concurring).

I concur in the order remanding for resentencing because this Court's decision in People v. McGraw, 484 Mich. 120, 771 N.W.2d 655 (2009), may affect the scoring of offense variable 3 (physical injury to victim), but I continue to adhere to my dissenting opinion in McGraw, 484 Mich, at 136, 771 N.W.2d 655.

YOUNG, J. (concurring).

Although People v. McGraw, 484 Mich. 120, 771 N.W.2d 655 (2009), controls the scoring of offense variable 3 (physical injury to victim), I continue to adhere to the position stated in Justice Corrigan's dissent in McGraw, 484 Mich. at 136, 771 N.W.2d 655, with which I concurred.

WEAVER, J. (dissenting).

I dissent because I would not vacate the sentence and remand this case. Instead, I would grant leave to appeal in order to reconsider People v. McGraw, 484 Mich. 120, 771 N.W.2d 655 (2009), for the reasons stated in the dissenting opinion in that case, id. at 136, 771 N.W.2d 655.