Opinion
Docket No. 147415. COA No. 308654.
2014-04-1
PEOPLE of the State of Michigan, Plaintiff–Appellee, v. Melvin James MARSHALL, Defendant–Appellant.
Prior report: Mich.App., 2013 WL 2420971.
Order
On order of the Court, the application for leave to appeal the June 4, 2013 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE in part the judgment of the Court of Appeals and we REMAND this case to the Court of Appeals for reconsideration in light of People v. Hardy, 494 Mich. 430, 438, 835 N.W.2d 340 (2013), and People v. Osantowski, 481 Mich. 103, 111, 748 N.W.2d 799 (2008). Determining whether a trial court properly scored sentencing variables is a two-step process. First, the trial court's factual determinations are reviewed for clear error and must be supportedby a preponderance of the evidence. Hardy, 494 Mich. at 438, 835 N.W.2d 340. The clear error standard asks whether the appellate court is left with a definite and firm conviction that a mistake has been made. See Douglas v. Allstate Ins. Co., 492 Mich. 241, 256–257, 821 N.W.2d 472 (2012). Second, the appellate court considers de novo “[w]hether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute ....” Hardy, 494 Mich. at 438, 835 N.W.2d 340. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.