Order Michigan Supreme Court
Lansing, Michigan
January 21, 2009 Marilyn Kelly,
Chief Justice
132876 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: 132876
COA: 264052
Saginaw CC: 03-022840-FH
MATTHEW LLOYD MCGRAW,
Defendant-Appellant.
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By order of October 31, 2007, the application for leave to appeal the November
16, 2006 judgment of the Court of Appeals was held in abeyance pending the decision in
People v Sargent (Docket No. 133474). On order of the Court, the case having been
decided on June 18, 2008, 481 Mich 346 (2008), the application is again considered, and
it is GRANTED. The parties shall include among the issues to be briefed: (1) whether,
absent an express indication to the contrary, the offense variables of the statutory
sentencing guidelines, MCL 777.1 et seq., are to be scored based on (a) the defendant’s
conduct in committing the specific offense for which those guidelines are being scored,
(b) the defendant’s conduct during the entire criminal transaction, or (c) the defendant’s
conduct during both the specific offense being scored and any offenses resulting in
conviction that arise out of the same transaction and that are enumerated in MCL
791.233b (see MCL 769.31(d)); (2) when is an offense completed for purposes of scoring
the offense variables; (3) whether an accomplice to the underlying crime can be
considered a “victim” under MCL 777.39 (OV 9); and (4) whether, based on the
foregoing, the defendant in this case was properly assessed 10 points for “2 to 9 victims”
under MCL 777.39 (OV 9) where he broke into an unoccupied store but, in the course of
driving away with two accomplices, led police on a car chase ending in a collision.
We further ORDER the Saginaw Circuit Court, in accordance with Administrative
Order 2003-03, to determine no later than February 3, 2009, whether the defendant is
indigent and, if so, to appoint the State Appellate Defender Office to represent the
defendant in this Court. If the defendant is not indigent, he must retain his own counsel.
2
The Clerk of the Court is directed to place this case on the May 2009 session
calendar for argument and submission. Appellant’s brief and appendix must be filed no
later than March 23, 2009, and appellee’s brief and appendix, if appellee chooses to
submit an appendix, must be filed no later than April 17, 2009.
The Prosecuting Attorneys Association of Michigan and the Criminal Defense
Attorneys Association are invited to file briefs amicus curiae, to be filed no later than
April 28, 2009. Other persons or groups interested in the determination of the issues
presented in this case may move the Court for permission to file briefs amicus curiae.
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 21, 2009 _________________________________________
d0120 Clerk