Opinion
SC 166308 COA 366947
05-10-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHASTITY ANN NELSON, Defendant-Appellant.
Delta CC: 22-010770-FH
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
By order of December 21, 2023, the plaintiff-appellee was directed to answer the application for leave to appeal the September 6, 2023 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Delta Circuit Court for resentencing in light of the prosecutor's concession that the defendant should not have been assessed 10 points for Offense Variable (OV) 19. MCL 777.49(c); People v. Deweerd, 511 Mich. 979, 980 (2023). Because correcting the OV score would change the applicable guidelines range, resentencing is required. People v. Francisco, 474 Mich. 82 (2006).
We do not retain jurisdiction.
ZAHRA, J., would deny leave to appeal.
VIVIANO, J. (dissenting).
I disagree with the Court's decision to remand to the circuit court for resentencing. The Court's decision is based on the prosecutor's concession that defendant should not have been assessed 10 points for Offense Variable (OV) 19 under People v. Deweerd, 511 Mich. 979 (2023). As I have explained elsewhere, I do not believe it is appropriate for this Court to dispose of a case on the basis of a prosecutor's confession of error unless we determine that the confession of error is at least plausible. See People v. Hernandez, 508 Mich. 972, 973 (2021) (VIVIANO, J., concurring); see also People v. Altantawi, 507 Mich. 873, 874 (2021) (VIVIANO, J., dissenting).
The trial court assessed 10 points under OV 19 after it determined that defendant "otherwise interfered with or attempted to interfere with the administration of justice ...." MCL 777.49(c). In Deweerd, a majority of this Court held that OV 19 "contemplates something more than a suspect's denial of culpability," but includes "actions that actively redirect the investigation" or "that attempt to or successfully conceal evidence from law enforcement ...." Deweerd, 511 Mich. at 980, citing People v. Barbee, 470 Mich. 283, 288 (2004), and People v. Ericksen, 288 Mich.App. 192, 203-204 (2010), respectively. In Barbee, this Court held that OV 19 was properly scored on the basis that a defendant provided a false name to the police when he was being investigated for operating a motor vehicle while intoxicated. Barbee, 470 Mich. at 285, 288. In Ericksen, the Court of Appeals held that OV 19 was properly scored on the basis that defendant asked one person to dispose of evidence and encouraged another to lie to the police about his whereabouts in an effort to mislead the police. Ericksen, 288 Mich.App. at 204.
Although the analysis in Deweerd is not without its flaws,0F the assertions made by the defendant in that case-mostly centered on his knowledge of criminal activity-are meaningfully distinguishable from the statements at issue in this case. In this case, defendant indicated multiple times that she did not have needles or illicit drugs in her possession, when in fact she did. These lies are more like the statements made by the defendant in Barbee, i.e., providing a false name. In both instances the defendant attempted to mislead a police investigation by providing false information. The lies were also an attempt to conceal evidence from law enforcement. See Ericksen, 288 Mich.App. at 204.
I vigorously dissented from the majority's order. See Deweerd, 511 Mich. at 982 (VIVIANO, J., dissenting).
By her false statements to the police, defendant did not merely "fail[] to facilitate a criminal investigation." Deweerd, 511 Mich. at 980. Instead, she deliberately attempted to mislead a police investigation by providing false information. As a result, I believe the trial court did not commit any error by scoring OV 19 at 10 points, and I would reject the prosecutor's implausible concession of error. I therefore dissent from the Court's decision to remand for resentencing and instead would simply deny leave.