Order Michigan Supreme Court
Lansing, Michigan
May 28, 2010 Marilyn Kelly,
Chief Justice
139413 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 139413
COA: 283954
Ingham CC: 07-000500-FH
LEDELL MARVIN MUSHATT,
Defendant-Appellant.
_________________________________________/
On March 10, 2010, the Court heard oral argument on the application for leave to
appeal the June 23, 2009 judgment of the Court of Appeals. MCR 7.302(H)(1). In lieu
of granting leave to appeal, we REVERSE in part the judgment of the Court of Appeals,
we VACATE the sentence of the Ingham Circuit Court, and we REMAND this case to
the sentencing court for resentencing. The prosecutor has conceded that the scoring of 5
points for offense variable 3 (bodily injury not requiring medical treatment), MCL
777.33(1)(e), was erroneous under People v McGraw, 484 Mich 120 (2009), and that
correction of this error would render the defendant’s current sentence in excess of the
corrected minimum sentence range. On remand, the “[o]ffense variables must be scored
giving consideration to the sentencing offense alone,” id. at 133, but the sentencing court
may consider the injury to the victim “when deciding what sentence to impose within the
appropriate guidelines range and whether to depart from the guidelines
recommendation.” Id. at 129.
Further, we clarify that the retroactive effect of McGraw is limited to cases
pending on appeal when McGraw was decided and in which the scoring issue had been
raised and preserved.1 The appeal in this case was pending when McGraw was decided,
and the issue was raised and preserved.
1
See, e.g., People v Cornell, 466 Mich 335, 367; 646 NW2d 127 (2002).
2
CORRIGAN, J. (concurring).
I concur with the remand order because the prosecutor has conceded that
defendant’s OV-3 score was erroneous under People v McGraw, 484 Mich 120; 771
NW2d 655 (2009). Nonetheless, I continue to adhere to the views expressed in my
dissenting opinion in McGraw, supra at 136.
YOUNG, J. (concurring).
I concur with the remand order because the prosecutor conceded that the
defendant’s OV-3 score was erroneous under People v McGraw.2 Although McGraw
controls the scoring of OV-3, I continue to adhere to the position stated in Justice
CORRIGAN’s dissent in McGraw,3 with which I concurred.
WEAVER, J. (dissenting).
This Court heard oral argument on whether to grant the application for leave to
appeal or take other peremptory action in this case. I would grant leave to consider
whether People v McGraw, 484 Mich 120; 771 NW2d 665 (2009), was wrongly decided
as per the dissent in that case. I continue to believe that McGraw was wrongly decided in
a 4 to 3 decision, and I believe that a remand in this case based on McGraw is a waste of
judicial resources.
2
484 Mich 120; 771 NW2d 655 (2009)
3
Id. at 136 (CORRIGAN, J., dissent).
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.
May 28, 2010 _________________________________________
0519 Clerk