PEOPLE v. HARRIS (1997)

ON REMAND

Our earlier judgment in this case, People v. Harris, 219 Mich.App. 184, 555 N.W.2d 891 (1996), has been vacated and the matter has been remanded to us with instructions to reconsider our decision in light of People v. Mitchell, 454 Mich. 145, 560 N.W.2d 600 (1997).  455 Mich. 863, 567 N.W.2d 251 (1997).   On remand we again affirm defendant's convictions.   However, in light of the decision in Mitchell with regard to alleged errors in scoring the Sentencing Guidelines, we also affirm defendant's sentences.  Mitchell, supra at 172-178, 560 N.W.2d 600.

As set out more fully in our earlier opinion, defendant challenged the scoring of Prior Record Variable 3 relating to certain juvenile probation violations.   Harris, 219 Mich.App. at 186-188, 555 N.W.2d 891.   We agreed that there was a scoring error and were compelled to remand for resentencing with regard to the assault conviction even though defendant's sentence remained within the guidelines range as adjusted.  Id. at 188, 555 N.W.2d 891.   The prosecution filed an application for leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, vacated our judgment and remanded this case for reconsideration in light of Mitchell.

 In Mitchell, supra at 178, 560 N.W.2d 600, the majority opinion ¹ holds that “[a]ppellate courts are not to interpret the guidelines or to score and rescore the variables for offenses and prior record to determine if they were correctly applied.”   This is precisely what we felt compelled to do in our earlier opinion in light of MCR 5.944(A) and the Michigan Sentencing Guidelines (2d ed.), p. 23.   We noted, however, that our decision to rescore PRV 3 and remand for resentencing served only to “frustrate the purpose of the guidelines,” Harris, 219 Mich.App. at 188, 555 N.W.2d 891.

 Mitchell holds that we are not authorized to examine the scoring of the guidelines by the trial court where the challenge is not directed to the factual basis of the sentence.   In the present case, defendant makes no challenge to the facts on which the PRY 3 score of twenty-five was based.   Accordingly, we have no authority to rescore PRV 3 and are free to affirm the sentence imposed, which is both within the guidelines range and clearly proportionate to the offense and the offender.

Affirmed.

FOOTNOTES

1.   Justice Boyle's opinion is joined in full only by Justices Brickley and Riley.   Because Justices Weaver and Kelly did not participate in the decision, Justice Boyle's opinion constitutes a majority of the Court participating, and is therefore binding precedent.   See Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976).

NEFF, Presiding Judge.