Order Michigan Supreme Court
Lansing, Michigan
September 18, 2009 Marilyn Kelly,
Chief Justice
138802 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: 138802
COA: 290561
Lenawee CC: 08-013540-FH
ADAM MUSTAFA ELANANI,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the April 6, 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 Lenawee Circuit Court, and
we REMAND this case to the trial court for resentencing. The trial court erred in scoring
OV 7 at 50 points, because the victim was not subjected to extreme or prolonged pain or
humiliation. MCL 777.37(3). The defendant’s sentencing guidelines range based on
properly scored offense variables is 7 to 23 months. As a result, the trial court’s
conclusion that the offense variables did not take into account the defendant’s high
offense variable score is not accurate. The other stated reasons for the departure, that the
crime is a “very egregious offense” and that the defendant is “more recidivous,” are not
objective and verifiable reasons for the departure. 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 (2003), and People
v Smith, 482 Mich 292 (2008). 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.
WEAVER, J. (dissenting).
I dissent. I would not vacate and remand this case for resentencing and I would
deny leave to appeal because I am not persuaded that the decision of the Court of Appeals
was clearly erroneous or that defendant has suffered any material injustice in this case.
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.
September 18, 2009 _________________________________________
0915 Clerk