Order Michigan Supreme Court
Lansing, Michigan
April 4, 2008 Clifford W. Taylor,
Chief Justice
135133 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 135133
COA: 269631
Macomb CC: 2005-003996-FC
CARLOS MARCELINO GONZALEZ,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 18, 2007
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of
Appeals, VACATE the defendant’s sentence for first-degree criminal sexual conduct, and
REMAND this case to the Macomb Circuit Court for resentencing under properly scored
sentencing guidelines. People v Kimble, 470 Mich 305 (2004); People v Francisco, 474
Mich 82 (2006). The defendant should have been scored zero points for PRV 1 where
there was no evidence to support a finding that he had been convicted of one prior high
severity felony. 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.
We do not retain jurisdiction.
WEAVER, J., dissents and states as follows:
I would deny the defendant’s application for 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 injustice in this case. Further, my reasons for a denial here are
the same as those stated in Justice Corrigan’s dissenting statement in People v Francisco,
474 Mich 82, 93-95 (2006), which I joined.
2
CORRIGAN, J., dissents and states as follows:
I would deny defendant’s application for leave to appeal. At sentencing,
defendant did not challenge the court’s determination that he had one prior conviction for
a high-severity felony. Rather, defense counsel specifically approved the court’s scoring
decisions and the resulting minimum guidelines range. On appeal, defendant presents no
evidence concerning the nature of the Texas conviction, listed only as “assault
threatening bodily injury,” or why that conviction does not qualify as one for a high-
severity felony. Further, if we accept defendant’s belated, unsupported claim that he
should not have received 25 points for prior record variable 1, his guidelines minimum-
sentence range changes only slightly, from 135-225 months to 126-210 months.
Significantly, his minimum sentence of 180 months’ imprisonment falls into the
corrected, lower range. Accordingly, this case exemplifies the waste of judicial resources
occasioned by this Court’s opinion in People v Francisco, 474 Mich 82 (2006), which
requires resentencing whenever correction of a scoring error changes the guidelines
minimum-sentence range, even if the defendant’s minimum sentence falls into the
corrected range. I reiterate my dissenting position in Francisco, supra at 93-95, that a
remand is not required by MCL 769.34(10) under these 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.
April 4, 2008 _________________________________________
s0401 Clerk