People v. Gray

Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  October 30, 2009                                                                                               Marilyn Kelly,
                                                                                                                    Chief Justice

  139309                                                                                               Michael F. Cavanagh
                                                                                                       Elizabeth A. Weaver
                                                                                                        Maura D. Corrigan
                                                                                                       Robert P. Young, Jr.
  PEOPLE OF THE STATE OF MICHIGAN,                                                                     Stephen J. Markman
            Plaintiff-Appellee,                                                                        Diane M. Hathaway,
                                                                                                                         Justices
  v                                                                 SC: 139309
                                                                    COA: 291210
                                                                    Gogebic CC: 2008-000109-FH
  ORLANDO RAY GRAY,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the June 1, 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 Gogebic Circuit Court and we
  REMAND this case to the trial court for resentencing. On remand the trial court shall
  reconsider the scoring of OV 15 in light of this Court’s opinion in People v McGraw, 484
  Mich 120 (2009). 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 (2003). In all other respects, the application for leave to appeal
  is denied because we are not persuaded that the question presented should be reviewed by
  this Court.

        CORRIGAN, J. (concurring).

         I concur in the order remanding for resentencing so that the sentencing court can
  consider whether this Court’s decision in People v McGraw, 484 Mich 120 (2009),
  affects the scoring of offense variable 15, but I continue to adhere to my dissenting
  opinion in McGraw, 484 Mich at 136.

        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
  (2009), for the reasons stated in the dissenting opinion in that case, id. at 136.




                           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.
                           October 30, 2009                    _________________________________________
           l1027                                                               Clerk