Order Michigan Supreme Court
Lansing, Michigan
March 28, 2007 Clifford W. Taylor,
Chief Justice
132582 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: 132582
COA: 272373
Muskegon CC: 05-051798-FH
DANIEL GLEN HORAN, JR.,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the October 16, 2006
order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we VACATE the sentence of the Muskegon Circuit Court and
we REMAND this case to the trial court for resentencing. It is undisputed that OV 13
(Continuing Pattern of Criminal Behavior) was incorrectly scored, and that correcting the
score reduces the applicable guidelines range. The trial court departed upward from the
guidelines, but did not declare that it would impose the same sentence regardless of the
offense variable scoring. Rather, the court based the extent of the departure on the
guidelines range. It is unclear that the trial court would have departed to the same extent
under the correctly scored guidelines. Therefore, People v Mutchie, 468 Mich 50, 51
(2003), does not apply. On remand, the court may again depart from the appropriate
sentencing guidelines range by articulating a substantial and compelling reason for the
departure in accordance with People v Babcock, 469 Mich 247, 268 (2003). 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.
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.
March 28, 2007 _________________________________________
p0328 Clerk