People of Michigan v. Philip Charles Swift

Order Michigan Supreme Court Lansing, Michigan February 5, 2020 Bridget M. McCormack, Chief Justice 160213 David F. Viviano, Chief Justice Pro Tem Stephen J. Markman Brian K. Zahra PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein Plaintiff-Appellee, Elizabeth T. Clement Megan K. Cavanagh, Justices v SC: 160213 COA: 348612 Muskegon CC: 17-006190-FH; PHILIP CHARLES SWIFT, 17-006389-FC; 17-006390-FH Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the July 15, 2019 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE defendant’s sentence and REMAND this case to the Muskegon Circuit Court. Offense Variable 4 appears to have been scored based solely on the prosecutor’s assertion. However, an attorney’s statements are not evidence, People v Ison, 132 Mich App 61, 68 (1984), and offense variables must be scored based on a preponderance of the evidence, People v Hardy, 494 Mich 430, 438 (2013). Because a 10-point reduction for Offense Variable 4 would result in a lower sentencing range, defendant is entitled to resentencing. People v Francisco, 474 Mich 82 (2006). We do not retain jurisdiction. I, Larry S. Royster, 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. February 5, 2020 a0129 Clerk