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Court Incorrectly Sentences Defendant

People v. Davis, Court: Michigan Supreme Court ( Order )


Sentencing; Scoring of OV 15; MCL 777.45(1)(d) & (2)(a); Scoring the OVs by reference to the record; People v. Osantowski; Review of the trial court’s factual determinations; People v. Hardy; Whether defendant was entitled to resentencing; People v. Francisco


In an order in lieu of granting leave to appeal the Court of Appeals order denying the delayed application for leave to appeal, the court vacated defendant’s sentence due to a clear error in scoring 50 points for OV 15, and remanded to the trial court for resentencing. The court held that the record preponderated in favor of the conclusion that “defendant possessed the controlled substance at issue for personal use, and not with ‘the intent to deliver . . . in this state,’ as is required by MCL 777.45(1)(d).” It noted the “small quantity of the controlled substance at issue, the absence of other indicia of possession with the intent to deliver, the uncontested evidence that the substance was found crushed in the defendant’s pocket, his history of substance abuse as evidenced by the presentence investigation report, and the fact that he was not charged with delivery of a controlled substance . . . .” The evidence that “the one pill at issue was crushed into fragments does not prove by a preponderance of the evidence that [he] intended to transfer the controlled substance to another individual regardless of remuneration.” Given that deducting the erroneously assessed points affected his guidelines range, he was entitled to resentencing.

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