Order Michigan Supreme Court
Lansing, Michigan
November 5, 2008 Clifford W. Taylor,
Chief Justice
136930 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman,
Plaintiff-Appellee, Justices
v SC: 136930
COA: 283107
Jackson CC: 06-004713-FC
SANFORD POLLO, JR.,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the May 29, 2008 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the question presented should be reviewed by this Court.
KELLY, J. (dissenting).
The Court should grant leave to appeal to examine the questionable practice used
by the trial court in this case. After trial and sentencing, defendant filed a motion for
resentencing asserting that offense variable (OV) 9 had been misscored. Once the error
was corrected, defendant argued, his sentence would no longer fall within the scored
guidelines range, and he should be resentenced. The prosecutor was obliged to
acknowledge that OV 9 had been improperly scored. But, for the first time, it claimed
that OV 19 had been improperly scored as well. OV 19 had been scored at zero at
sentencing. The prosecutor now argued that OV 19 should be scored at 10.
Defendant had slashed his wrists when officers tried to arrest him. The prosecutor
had not argued at sentencing that this desperate behavior constituted interference with the
administration of justice for purposes of OV 19. It was only after agreeing that OV 9 had
been improperly scored that the prosecutor advanced this position.
The trial court denied defendant’s motion without conducting a hearing. The court
agreed with defendant that OV 9 should have been scored at zero, but also agreed with
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the prosecutor that OV 19 should have been scored at 10 points. As a result, the
guidelines range did not change, and resentencing was unnecessary.
To allow a judge who made a mistake at sentencing to rescore other offense
variables to nullify the damage done by the misscored variable without a hearing is
troublesome. The defendant had no opportunity to present any objection or input to the
rescoring of OV 19. Rather than ignore this practice, the Court should grant leave to
appeal to consider whether it should be permitted and, if so, under what circumstances.
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.
November 5, 2008 _________________________________________
t1029 Clerk