scoring error in Michigan

2026“A defendant is entitled to be sentenced according to accurately scored guidelines and on the basis of accurate information.” -7- People v McGraw, 484 Mich 120, 131 ; 771 NW2d 655 (2009). “[I]f a minimum sentence falls within the appropriate guidelines range, a defendant is not entitled to be resentenced unless there has been a scoring error or inaccurate information has been relied upon.” People v Francisco, 474 Mich 82, 88 ; 711 NW2d 44 (2006).

2026“A defendant is entitled to be sentenced according to accurately scored guidelines and on the basis of accurate information.” -7- People v McGraw, 484 Mich 120, 131 ; 771 NW2d 655 (2009). “[I]f a minimum sentence falls within the appropriate guidelines range, a defendant is not entitled to be resentenced unless there has been a scoring error or inaccurate information has been relied upon.” People v Francisco, 474 Mich 82, 88 ; 711 NW2d 44 (2006).

2026In People v Kimble, 470 Mich 305, 310-311 ; 684 NW2d 669 (2004), our Supreme Court held that “pursuant to § 34(10), a sentence that is outside the appropriate guidelines sentence range, for whatever reason, is appealable regardless of whether the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand,” but “if the sentence is within the appropriate guidelines sentence range, it is only appealable if there was a scoring error or inaccurate information was relied upon in determining the sentence and the issue was raised at sentencing, in a motion for resentencing,

2026In People v Kimble, 470 Mich 305, 310-311 ; 684 NW2d 669 (2004), our Supreme Court held that “pursuant to § 34(10), a sentence that is outside the appropriate guidelines sentence range, for whatever reason, is appealable regardless of whether the issue was raised at sentencing, in a motion for resentencing, or in a motion to remand,” but “if the sentence is within the appropriate guidelines sentence range, it is only appealable if there was a scoring error or inaccurate information was relied upon in determining the sentence and the issue was raised at sentencing, in a motion for resentencing,

2026Id. at 134 . 2 The Court made clear that, “[w]here a scoring error does not alter the appropriate guidelines range, resentencing is not required.” Francisco, 474 Mich at 89 n 8, citing People v Davis, 468 Mich 77, 83 ; 658 NW2d 800 (2003). 6 (2003).

2026Id. at 134 . 2 The Court made clear that, “[w]here a scoring error does not alter the appropriate guidelines range, resentencing is not required.” Francisco, 474 Mich at 89 n 8, citing People v Davis, 468 Mich 77, 83 ; 658 NW2d 800 (2003). 6 (2003).

2022Because the scoring error does not affect the appropriate guidelines ranges for these offenses, defendant is not entitled to resentencing.4 People v Francisco, 474 Mich 82 , 89 n 8; 711 NW2d 44 (2006); People v Biddles, 316 Mich App 148, 156 ; 896 NW2d 461 (2016).

2022Because the scoring error does not affect the appropriate guidelines ranges for these offenses, defendant is not entitled to resentencing.4 People v Francisco, 474 Mich 82 , 89 n 8; 711 NW2d 44 (2006); People v Biddles, 316 Mich App 148, 156 ; 896 NW2d 461 (2016).

2023In pertinent part, the order requests supplemental briefing addressing the following: (2) whether the requirement in MCL 769.34(10) that the Court of Appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with the Sixth Amendment, the due-process right to appellate review, and People v Lockridge, 498 Mich 358 , 870 NW2d 502 -11- (2015); and, if not, (3) whether the appellant’s sentence is reasonable and proportionate. [People v Posey, 508 Mich 940 (2021).] In any event, our Supreme Court has not yet issued a decision

2023In pertinent part, the order requests supplemental briefing addressing the following: (2) whether the requirement in MCL 769.34(10) that the Court of Appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with the Sixth Amendment, the due-process right to appellate review, and People v Lockridge, 498 Mich 358 , 870 NW2d 502 -11- (2015); and, if not, (3) whether the appellant’s sentence is reasonable and proportionate. [People v Posey, 508 Mich 940 (2021).] In any event, our Supreme Court has not yet issued a decision

2023See MCL 777.62 (providing OV Level IV range for Class A felonies as 60 to 79 points); People v Rhodes, 305 Mich App 85, 91 ; 849 NW2d 417 (2014) (stating that if a scoring error does not alter the guidelines range, resentencing is not required).

2023See MCL 777.62 (providing OV Level IV range for Class A felonies as 60 to 79 points); People v Rhodes, 305 Mich App 85, 91 ; 849 NW2d 417 (2014) (stating that if a scoring error does not alter the guidelines range, resentencing is not required).

2026The Court carved out one exception to its holding by declining to require resentencing “where the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range.” Id. at 89 n 8, citing People v Mutchie, 468 Mich 50, 51 ; 658 NW2d 154 (2005), the Court has said that sentencing “[g]uidelines should be the starting point and the initial benchmark” at sentencing.

2026The Court carved out one exception to its holding by declining to require resentencing “where the trial court has clearly indicated that it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range.” Id. at 89 n 8, citing People v Mutchie, 468 Mich 50, 51 ; 658 NW2d 154 (2005), the Court has said that sentencing “[g]uidelines should be the starting point and the initial benchmark” at sentencing.

2026“A defendant is entitled to be sentenced according to accurately scored guidelines and on the basis of accurate information.” -7- People v McGraw, 484 Mich 120, 131 ; 771 NW2d 655 (2009). “[I]f a minimum sentence falls within the appropriate guidelines range, a defendant is not entitled to be resentenced unless there has been a scoring error or inaccurate information has been relied upon.” People v Francisco, 474 Mich 82, 88 ; 711 NW2d 44 (2006).

2026“A defendant is entitled to be sentenced according to accurately scored guidelines and on the basis of accurate information.” -7- People v McGraw, 484 Mich 120, 131 ; 771 NW2d 655 (2009). “[I]f a minimum sentence falls within the appropriate guidelines range, a defendant is not entitled to be resentenced unless there has been a scoring error or inaccurate information has been relied upon.” People v Francisco, 474 Mich 82, 88 ; 711 NW2d 44 (2006).

2021“A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report, admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary examination or trial.” People v Johnson, 298 Mich App 128, 131 ; 826 NW2d 170 (2012) (quotation marks and citation omitted). “[I]f the defendant’s sentence is within the recommended -2- guidelines range, resentencing is not required unless there is a scoring error that changes the guidelines range or the trial court relied on

2021“A sentencing court may consider all record evidence before it when calculating the guidelines, including, but not limited to, the contents of a presentence investigation report, admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary examination or trial.” People v Johnson, 298 Mich App 128, 131 ; 826 NW2d 170 (2012) (quotation marks and citation omitted). “[I]f the defendant’s sentence is within the recommended -2- guidelines range, resentencing is not required unless there is a scoring error that changes the guidelines range or the trial court relied on

2025See, e.g., People v Tombs, 260 Mich App 201, 220 ; 679 NW2d 77 (2003) (stating that this Court cannot provide a remedy for an alleged scoring error when the defendant served his minimum sentence), aff’d 472 Mich 446 (2005); People v Rutherford, 208 Mich App 198, 204 ; 526 NW2d 620 (1994) (holding that a 1 The trial court made it clear that it was “not sentencing [defendant] for the technical violations or the nontechnical violations.” -1- challenge to the proportionality of the defendant’s sentence was moot because the defendant served the minimum sentence).

2025See, e.g., People v Tombs, 260 Mich App 201, 220 ; 679 NW2d 77 (2003) (stating that this Court cannot provide a remedy for an alleged scoring error when the defendant served his minimum sentence), aff’d 472 Mich 446 (2005); People v Rutherford, 208 Mich App 198, 204 ; 526 NW2d 620 (1994) (holding that a 1 The trial court made it clear that it was “not sentencing [defendant] for the technical violations or the nontechnical violations.” -1- challenge to the proportionality of the defendant’s sentence was moot because the defendant served the minimum sentence).

2024See MCR 7.205(2)(a). 3 In People v Posey, 512 Mich 317 ; 326; 1 NW3d 101 (2023) (Docket No. 162373) (opinion by BOLDEN, J.); the Michigan Supreme Court struck down the first sentence of MCL 769.34(10), which required this Court to affirm an in-guidelines sentence in the absence of a scoring error or reliance on inaccurate information.

2024See MCR 7.205(2)(a). 3 In People v Posey, 512 Mich 317 ; 326; 1 NW3d 101 (2023) (Docket No. 162373) (opinion by BOLDEN, J.); the Michigan Supreme Court struck down the first sentence of MCL 769.34(10), which required this Court to affirm an in-guidelines sentence in the absence of a scoring error or reliance on inaccurate information.

2023A. PROPORTIONALITY Appellate review of defendant’s within-guidelines sentences was previously foreclosed under MCL 769.34(10).1 See People v Schrauben, 314 Mich App 181, 196 ; 886 NW2d 173 (2016), overruled in part by Posey, ___ Mich at ___; slip op at 37-38 (observing that reviewing courts were required to affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information).

2023A. PROPORTIONALITY Appellate review of defendant’s within-guidelines sentences was previously foreclosed under MCL 769.34(10).1 See People v Schrauben, 314 Mich App 181, 196 ; 886 NW2d 173 (2016), overruled in part by Posey, ___ Mich at ___; slip op at 37-38 (observing that reviewing courts were required to affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information).

2024A scoring error requires resentencing “only if the error alters the recommended minimum sentence range under the legislative sentencing guidelines.” People v Phelps, 288 Mich App 123, 136 ; 791 NW2d 732 (2010), overruled in part on other grounds by Hardy, 494 Mich at 438 n 18.

2019In considering an alleged scoring error, the trial court’s “factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438 ; 835 NW2d 340 (2013), superseded by statute on other grounds in People v Rodriguez, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 338914); slip op at 3 n 3.

2022See People v Schrauben, 314 Mich App 181 , 196 n 1; 886 NW2d 173 (2016); see also People v Anderson, 322 Mich App 622, 635-637 ; 912 NW2d 607 (2018), People v Posey, 334 Mich App 338 , 357; 964 NW2d 862 (2020),11 MCL 769.34(10). 11 Posey is pending before our Supreme Court, which ordered the parties to brief the issue “whether the requirement in MCL 769.34(10) that the Court of Appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with the Sixth Amendment, the due-process right to appellate review, and People v Lock

2022See People v Schrauben, 314 Mich App 181 , 196 n 1; 886 NW2d 173 (2016); see also People v Anderson, 322 Mich App 622, 635-637 ; 912 NW2d 607 (2018), People v Posey, 334 Mich App 338 , 357; 964 NW2d 862 (2020),11 MCL 769.34(10). 11 Posey is pending before our Supreme Court, which ordered the parties to brief the issue “whether the requirement in MCL 769.34(10) that the Court of Appeals affirm any sentence within the guidelines range, absent a scoring error or reliance on inaccurate information, is consistent with the Sixth Amendment, the due-process right to appellate review, and People v Lock

2016Carines, 460 Mich at 763-764 . 3 Defendant did not argue below or on appeal that the prosecutor or the trial court should have assisted defense counsel in the efforts to locate or contact Gray, and, as discussed, defense counsel did not raise before the trial court the issue of Gray testifying until the fourth day of trial. 4 The prosecutor’s appellate brief addresses this issue as both a traditional OV scoring challenge and a Sixth Amendment claim, but defendant’s appellate brief does not raise a traditional scoring challenge.

2004I also agree with Judge GEIFFIN’S conclusion that the scoring error does not qualify as plain error that seriously affected the fairness, integrity or public reputation of judicial proceedings under People v Carines, 460 Mich 750 ; 597 NW2d 130 (1999).

2016Although in a lead opinion in People v Melton, 271 Mich App 590, 593 ; 722 NW2d 698 (2006), superseded by statute on other grounds, it was noted that “a scoring error may still affect a defendant through such things as its effect on the calculation of parole i.e., a “Crosby remand,” with respect to honoring the right to a jury trial.

2016Although in a lead opinion in People v Melton, 271 Mich App 590, 593 ; 722 NW2d 698 (2006), superseded by statute on other grounds, it was noted that “a scoring error may still affect a defendant through such things as its effect on the calculation of parole i.e., a “Crosby remand,” with respect to honoring the right to a jury trial.

2025“A scoring error requires resentencing when it results in a miscalculation of the sentencing range.” People v Dupree, 511 Mich 1 , 14; 993 NW2d 185 (2023).

2025“A scoring error requires resentencing when it results in a miscalculation of the sentencing range.” People v Dupree, 511 Mich 1 , 14; 993 NW2d 185 (2023).