Order Michigan Supreme Court
Lansing, Michigan
January 27, 2012 Robert P. Young, Jr.,
Chief Justice
143780 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellant, Justices
v SC: 143780
COA: 298299
Wayne CC: 09-011819-FH
ANTHONY BROOKS,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the August 16, 2011
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we VACATE, as dicta, the portion of the judgment of the
Court of Appeals that addressed the trial court’s decision to upwardly depart from the
sentencing guidelines. Because the Court of Appeals granted defendant a new trial,
defendant’s challenge to his sentence was rendered moot. The Court of Appeals’
discussion of this issue also wrongly left the impression that a departure sentence of life
may only be imposed on a habitual offender when the sentencing offense is murder or a
Class A felony. See MCL 769.12(1). We express no opinion, however, whether the
extent of the trial court’s sentencing departure was justified under People v Smith, 482
Mich 292 (2008). In all other respects, leave to appeal is DENIED because we are not
persuaded that the remaining question presented should be reviewed by this Court.
MARILYN KELLY, J., would deny leave to appeal.
I, Corbin R. Davis, 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.
January 27, 2012 _________________________________________
t0124 Clerk