People v. Jackson

                                                                       Michigan Supreme Court
                                                                             Lansing, Michigan
                                                      Chief Justice:       Justices:



Opinion                                               Marilyn Kelly        Michael F. Cavanagh
                                                                           Maura D. Corrigan
                                                                           Robert P. Young, Jr.
                                                                           Stephen J. Markman
                                                                           Diane M. Hathaway
                                                                           Alton Thomas Davis




                                                            FILED SEPTEMBER 7, 2010

                            STATE OF MICHIGAN

                                    SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

 v                                                           No. 138988

 LEONARD LEPPEL JACKSON,

              Defendant-Appellant.


 BEFORE THE ENTIRE BENCH (except DAVIS, J.)

 HATHAWAY, J.

       We heard oral argument on whether to grant defendant’s application for leave to

 appeal. At issue is whether defendant is entitled to resentencing for an armed-robbery

 conviction when the Court of Appeals vacated his concurrent convictions for felonious

 assault that had been used as a factor in calculating his sentence for armed robbery.

 Court of Appeals remands for resentencing are governed by MCL 769.34, which requires

 that cases be remanded when the sentence is based on inaccurate information. We

 conclude that defendant is entitled to resentencing because defendant’s sentence is now
based on inaccurate information. We further conclude that because defendant requested a

remand for resentencing as part of his appeal to vacate the felonious-assault convictions,

he complied with the requirement of MCL 769.34(10), which mandates that a request for

remand be made in a proper motion filed in the Court of Appeals.

      Accordingly, the Court of Appeals erred by failing to remand for resentencing. In

lieu of granting leave to appeal, we reverse the portion of the Court of Appeals’ decision

that concluded that the Court could not remand for resentencing. We therefore vacate

defendant’s sentence and remand for resentencing.

                           I. FACTS AND PROCEEDINGS

      On the evening of January 12, 2007, Sherry Taylor was leaving a store with her

two young children. As she was helping her children into her car, she noticed a man,

who was later identified as defendant, running toward her. Taylor claimed that defendant

approached her, pointed a gun at her children, and threatened to shoot them unless Taylor

gave him all her money. Taylor gave defendant $120 and some other items, and then

defendant ran away. He was apprehended several months later when Taylor happened to

recognize him in public and called the police. The gun that Taylor claimed to have seen

was never recovered.




                                            2
       Defendant was charged with armed robbery,1 two counts of felonious assault,2

felon in possession of a firearm,3 and possession of a firearm during the commission of a

felony.4 At a bench trial, defendant was acquitted of the charges of felon in possession of

a firearm and possession of a firearm during the commission of a felony after the court

determined that the prosecution had failed to prove defendant actually had a gun when he

demanded Taylor’s money. Defendant was convicted of armed robbery. Additionally,

despite the lack of proof that defendant had a weapon, defendant was also convicted of

two counts of felonious assault.

       During the calculation of defendant’s recommended minimum sentence range for

armed robbery under the sentencing guidelines, defendant was assessed 20 points under

prior record variable 7 (PRV 7) as a result of the two felonious-assault convictions.5

Consequently, his minimum sentence range was 108 to 270 months. Had defendant not

been assessed 20 points under PRV 7, his minimum sentence range would have been 81




       1
           MCL 750.529.
       2
        MCL 750.82. “‘The elements of felonious assault are (1) an assault, (2) with a
dangerous weapon, and (3) with the intent to injure or place the victim in reasonable
apprehension of an immediate battery.’” People v Chambers, 

277 Mich App 1, 8

; 

742 NW2d 610

 (2007) (citation omitted; emphasis added).
       3
           MCL 750.224f.
       4
           MCL 750.227b.
       5
         See MCL 777.57(1)(a) (stating that 20 points should be assessed if “[t]he
offender has 2 or more subsequent or concurrent convictions”).



                                            3
to 202 months.6 The trial court stated its intention to sentence defendant at the lower end

of the guidelines range and sentenced defendant as a third-offense habitual offender7 to

concurrent prison terms of 108 to 240 months for armed robbery and 24 to 96 months for

each felonious-assault conviction.

       Defendant appealed in the Court of Appeals and argued that the trial court erred by

convicting him of two counts of felonious assault while simultaneously finding that he

did not have a gun during the commission of the armed robbery. Defendant argued that

felonious assault requires the prosecution prove that a dangerous weapon was used in the

commission of the crime as an element of the crime, thus making the convictions

inconsistent with the trial court’s factual findings. As part of his appeal, defendant also

requested that his case be remanded for resentencing on his armed-robbery conviction

because of this error.

       The Court of Appeals agreed that it was error to convict defendant of felonious

assault when defendant did not have a dangerous weapon at the time of the crime. The

Court opined that while an armed robbery can be committed without the use of a



       6
         Our opinion only addresses defendant’s guidelines range with respect to the PRV
7 assessed points, and not the two additional errors that were made in scoring offense
variable (OV) 1 and OV 2, as discussed by the Court of Appeals, because defendant did
not raise the two OV scoring errors in the appeal in this Court. However, as recognized
in the concurrence, defendant’s correct guidelines range with the two additional scoring
errors removed is 51 to 127 months. Nothing in this opinion precludes the trial court
from reviewing and correcting the OV scoring errors, as found by the Court of Appeals,
on remand for resentencing.
       7
           MCL 769.11.



                                            4
dangerous weapon, a felonious assault cannot.8 In light of this error, the Court vacated

defendant’s felonious-assault convictions.       However, the Court rejected defendant’s

request for resentencing on the armed-robbery conviction, concluding that it was required

by MCL 769.34(10) to affirm defendant’s sentence because the sentence remained

“within the appropriate guidelines range” and defendant had not raised the issue “‘at

sentencing, in a proper motion for resentencing, or in a proper motion to remand’ . . . .”9

       Defendant applied for leave to appeal in this Court, and we heard oral argument on

whether to grant the application or take other preemptory action. At issue is whether

defendant was entitled to resentencing under these circumstances.10




       8
         People v Jackson, unpublished opinion per curiam of the Court of Appeals,
issued March 26, 2009 (Docket No. 281380), pp 2-3, citing Chambers, 

277 Mich App at 9

.
       9
         Jackson, unpub op at 5, quoting MCL 769.34(10).
       10
            People v Jackson, 

485 Mich 968

 (2009). The order provided:

               We direct the clerk to schedule oral argument on whether to grant
       the application or take other peremptory action. MCR 7.302(H)(1). The
       parties shall submit supplemental briefs within 42 days of the date of this
       order addressing whether the defendant is entitled to resentencing, where
       the Court of Appeals vacated two of the defendant’s three convictions,
       resulting in a reduction of the guidelines sentence range, but where the
       defendant’s minimum sentence is within the corrected guidelines sentence
       range. MCL 769.34(10); People v Francisco, 

474 Mich 82

 [

711 NW2d 44

]
       (2006). The parties should avoid submitting a mere restatement of the
       arguments made in their application papers. [Id. at 968-969.]



                                             5
                             II. STANDARD OF REVIEW

      The issues in this case involve the proper interpretation and application of the

statutory sentencing guidelines, which are both legal issues that this Court reviews de

novo.11

                                     III. ANALYSIS

      At issue in this case is whether defendant is entitled to resentencing for his armed-

robbery conviction when the Court of Appeals vacated his concurrent convictions for

felonious assault that were used as a factor in calculating the sentence for armed robbery.

The Court of Appeals vacated defendant’s felonious-assault convictions; however, the

Court refused to remand the case for resentencing, concluding:

             Although we conclude that these variables [PRV 7, OV 1, and OV 2]
      were improperly scored, as discussed below, we must affirm defendant’s
      sentence because it “is within the appropriate guidelines sentence range”
      and defendant failed to raise this issue “at sentencing, in a proper motion
      for resentencing, or in a proper motion to remand” filed with this Court.[12]

      The Court of Appeals focused on two specific provisions within MCL 769.34(10):

whether the sentence was “within the appropriate guidelines” range and whether

defendant raised the issue “at sentencing, in a proper motion for resentencing, or in a




      11
       In re Investigation of March 1999 Riots in East Lansing, 

463 Mich 378

, 383;

617 NW2d 310

 (2000); People v Morson, 

471 Mich 248, 255

; 

685 NW2d 203

 (2004).
      12
           Jackson, unpub op at 4, quoting MCL 769.34(10).



                                            6
proper motion to remand . . . .” Thus, the proper interpretation of MCL 769.34(10)

governs the result in this case.13

       In interpreting statutes, we follow established rules of statutory construction.

Assuming that the Legislature has acted within its constitutional authority, the purpose of

statutory construction is to discern and give effect to the intent of the Legislature.14

Accordingly, the Court must interpret the language of a statute in a manner that is

consistent with the legislative intent.15 In determining the legislative intent, we must first

look to the actual language of the statute.16 As far as possible, effect should be given to

every phrase, clause, and word in the statute.17 Moreover, the statutory language must be

read and understood in its grammatical context.18           When considering the correct

interpretation, the statute must be read as a whole.19 Individual words and phrases, while

important, should be read in the context of the entire legislative scheme.20 In defining


       13
         We recently addressed the proper application of MCL 769.34(10) in People v
Francisco, 

474 Mich 82

; 

711 NW2d 44

 (2006); however, the case before us presents
additional issues not addressed in Francisco.
       14
        Potter v McLeary, 

484 Mich 397, 411

; 

774 NW2d 1

 (2009), citing Sun Valley
Foods Co v Ward, 

460 Mich 230, 236

; 

596 NW2d 119

 (1999).
       15
            Potter, 

484 Mich at 410-411

.
       16
            

Id. at 410

.
       17
            Sun Valley, 

460 Mich at 237

.
       18
            Herman v Berrien Co, 

481 Mich 352, 366

; 

750 NW2d 570

 (2008).
       19
            Sun Valley, 

460 Mich at 237

.
       20
            Herman, 

481 Mich at 366

.



                                              7
particular words within a statute, we must consider both the plain meaning of the critical

word or phrase and its placement and purpose in the statutory scheme.21

       MCL 769.34(10) specifically governs remands for resentencing. This subsection

provides:

              If a minimum sentence is within the appropriate guidelines sentence
       range, the court of appeals shall affirm that sentence and shall not remand
       for resentencing absent an error in scoring the sentencing guidelines or
       inaccurate information relied upon in determining the defendant's sentence.
       A party shall not raise on appeal an issue challenging the scoring of the
       sentencing guidelines or challenging the accuracy of information relied
       upon in determining a sentence that is within the appropriate guidelines
       sentence range unless the party has raised the issue at sentencing, in a
       proper motion for resentencing, or in a proper motion to remand filed in
       the court of appeals. [Emphasis added.]

                                                A

       We first review whether a remand for resentencing was barred because

defendant’s minimum sentence was within the appropriate guidelines range. The first

sentence of MCL 769.34(10) governs when the Court shall or shall not remand for

resentencing: “If a minimum sentence is within the appropriate guidelines sentence range,

the court of appeals shall affirm that sentence and shall not remand for resentencing

absent an error in scoring the sentencing guidelines or inaccurate information relied

upon in determining the defendant’s sentence.” (Emphasis added.) The clear meaning of

this sentence is that the Court shall not remand for resentencing unless there was either an

error in scoring or defendant’s sentence was based on inaccurate information.22

       21
            

Id.

       22
            See Francisco, 

474 Mich at 88-89

.


                                                8
Conversely, this means that the Court is required to remand whenever one of these two

circumstances is present.23 Thus, the Court may not ignore the two criteria for when a

case should be remanded merely because the sentence is within the appropriate guidelines

range. When the defendant’s sentence is based on an error in scoring or based on

inaccurate information, a remand for resentencing is required.24

       In this case, the trial court had assessed points for convictions that were vacated on

appeal. Before the felonious-assault convictions were vacated, defendant was assessed

20 points under PRV 7 for his armed-robbery conviction because the felonious assaults

were concurrent convictions. Consequently, his minimum sentence range for the armed

robbery was 108 to 270 months. Had defendant been correctly assessed zero points

instead of 20 under PRV 7, his minimum sentence range would have been 81 to 202

months. Thus, assessing defendant 20 points under PRV 7 resulted in a sentence based

on inaccurate information.      Because the clear and unambiguous language of MCL

769.34(10) requires a remand for resentencing when the sentence is based on inaccurate

information, the Court of Appeals erred by concluding that it was barred from remanding

the case for resentencing based on the plain language of the statute.

       Moreover, this is the same analysis and conclusion that we arrived at in People v

Francisco. In Francisco, this Court held that a defendant is entitled to resentencing when
       23
            See 

id. at 90-91

.
       24
          We emphasize that this does not mean that the trial court is required to change
the sentence on remand. See 

id. at 91

. However, a remand to the trial court is required in
these circumstances so that the issue of resentencing can be considered by the trial court
in light of the new information.



                                             9
the trial court erred in scoring an offense variable, and the error affected the statutory

sentencing guidelines range. The trial court had sentenced the defendant to a minimum

of 102 months imprisonment under the mistaken belief that the proper guidelines range

was 87 to 217 months, when the correct range was actually 78 to 195 months.25

Although the defendant’s minimum sentence was still within the guidelines range, we

held that a remand for resentencing was required26 because the statutory phrase at issue—

“absent an error in scoring the sentencing guidelines or inaccurate information relied

upon in determining the defendant’s sentence”—“makes clear that the Legislature

intended to have defendants sentenced according to accurately scored guidelines and in

reliance on accurate information . . . .”27   As a result, we held that when “appellate

correction of an erroneously calculated guidelines range” results in a sentence that

“stands differently in relationship to the correct guidelines range,” a defendant is “entitled

to be resentenced.”28 As we stated in Francisco, this interpretation of MCL 769.34(10) is

consistent with the clearly expressed legislative intent and prior case law:

              MCL 769.34(10) makes clear that the Legislature intended to have
       defendants sentenced according to accurately scored guidelines and in
       reliance on accurate information (although this Court might have presumed
       the same even absent such express language). Moreover, we have held that
       “a sentence is invalid if it is based on inaccurate information.” People v
       Miles, 

454 Mich 90, 96

; 

559 NW2d 299

 (1997). In this case, there was a

       25
            Francisco, 

474 Mich at 91

.
       26
            

Id. at 92

.
       27
            

Id. at 89

.
       28
            

Id. at 91-92

.



                                              10
      scoring error, the scoring error altered the appropriate guidelines range, and
      defendant preserved the issue at sentencing. It would be in derogation of
      the law, and fundamentally unfair, to deny a defendant in the instant
      circumstance the opportunity to be resentenced on the basis of accurate
      information. A defendant is entitled to be sentenced in accord with the law,
      and is entitled to be sentenced by a judge who is acting in conformity with
      such law.[29]

      In the present case defendant’s sentence was based on inaccurate information, and

he is entitled to resentencing.30 Accordingly, we conclude that that the Court of Appeals

erred by holding that it was barred from remanding for resentencing because the

minimum sentence was within the appropriate sentencing guidelines range.


      29
           

Id. at 89-91

.
      30
          We note that the trial court in this case stated that it intended to sentence
defendant at the lower end of the guidelines range and that defendant’s minimum
sentence for armed robbery is no longer at that lower end as a result of the scoring
adjustment. While such an expression of intent is not outcome determinative for
purposes of deciding whether resentencing should occur, it indeed illustrates one of the
several reasons why fairness dictates this result. As we stated in Francisco,

      [w]hile the difference between the mistaken and the correct guidelines
      ranges is relatively small, the fundamental problem nonetheless is
      illustrated. The actual sentence suggests an intention by the trial court to
      sentence defendant near the bottom of the appropriate guidelines range—
      specifically, fifteen months or 17 percent above the 87-month minimum.
      Had the trial court been acting on the basis of the correct guidelines range,
      however, we simply do not know whether it would have been prepared to
      sentence defendant to a term 24 months or 30 percent above the new 78-
      month minimum. Indeed, appellate correction of an erroneously calculated
      guidelines range will always present this dilemma, i.e., the defendant will
      have been given a sentence which stands differently in relationship to the
      correct guidelines range than may have been the trial court's intention.
      Thus, requiring resentencing in such circumstances not only respects the
      defendant’s right to be sentenced on the basis of the law, but it also respects
      the trial court’s interest in having defendant serve the sentence that it truly
      intends. [Id. at 91-92.]



                                            11
                                            B

       We next consider whether defendant was barred from requesting resentencing by

the second sentence of MCL 769.34(10), which states:

              A party shall not raise on appeal an issue challenging the scoring of
       the sentencing guidelines or challenging the accuracy of information relied
       upon in determining a sentence that is within the appropriate guidelines
       sentence range unless the party has raised the issue at sentencing, in a
       proper motion for resentencing, or in a proper motion to remand filed in
       the court of appeals. [Emphasis added.]

The prosecution argues that this language limits requests for resentencing to those made

by one of three specific procedural processes: either at sentencing, in a proper motion for

resentencing, or in a proper motion to remand filed in the Court of Appeals. The

prosecution further argues that because defendant made his request for a remand for

resentencing in his brief on appeal, rather than in a separate motion for remand in the

Court of Appeals, the Court was precluded from granting his request. The Court of

Appeals agreed with this argument. We, however, do not agree with such a narrow

interpretation of this statute because this interpretation disregards the plain language of

the statute and our court rules.

       The prosecution is correct that the statute limits the processes and timing of a

request by a defendant to request resentencing. According to the statute, there are two

ways for the defendant to make this request at the trial court level: either by making the

request at sentencing or in a proper motion for resentencing. In cases on appeal, the

request must be made in a proper motion to remand filed in the Court of Appeals. In this

case, we need not address whether defendant followed the procedures to request relief in



                                            12
the trial court for the scoring based on the felonious-assault convictions because either

procedure would have been futile until such time as the Court of Appeals affirmed or

reversed the felonious-assault convictions.      Nor would we expect a trial court to

anticipate that its rulings might be found incorrect or force it to entertain such a motion.

Accordingly, given the circumstances in this case, the only issue presented is whether

defendant made a proper motion to remand in the Court of Appeals.

       To determine whether defendant complied with this section of the statute, we must

first determine what constitutes a proper motion to remand in the Court of Appeals.

What constitutes a proper motion in any court is not within the purview of the Legislature

because defining the procedures for filing a motion presents a procedural issue.31 Nor

will we assume that the Legislature intended to impose any particular method by which

such a filing must be undertaken. Accordingly, it is entirely within this Court’s purview

to determine what constitutes a proper motion and what procedures and timing best suit

our appellate courts practices.
       31
            It is well established that the rules of procedure in judicial matters rest
exclusively with the judiciary and this Court. This rule-making authority can be traced
from our earlier constitutions to its current form, which states: “The supreme court shall
by general rules establish, modify, amend and simplify the practice and procedure in all
courts of this state. The distinctions between law and equity proceedings shall, as far as
practicable, be abolished. The office of master in chancery is prohibited.” Const 1963,
art 6, § 5.

       In Perin v Peuler (On Rehearing), 

373 Mich 531, 541

; 

130 NW2d 4

 (1964),
overruled in part on other grounds by McDougall v Schanz, 

461 Mich 15, 32

; 

597 NW2d 148

 (1999), this Court opined that the “function of enacting and amending judicial rules
of practice and procedure has been committed exclusively to this Court; a function with
which the legislature may not meddle or interfere save as the Court may acquiesce and
adopt for retention at judicial will.” (Citations omitted.)



                                            13
       Unfortunately, the Court of Appeals failed to explain why it determined that a

proper motion had not been filed. We can only presume that the Court determined that

the statute requires a separate motion be filed pursuant to MCR 7.211. However, we do

not agree because this rule does not provide grounds for a motion given the

circumstances presented in this case. MCR 7.211(C)(1) governs the general category of

motions to remand in the Court of Appeals and provides:

              (a) Within the time provided for filing the appellant's brief, the
       appellant may move to remand to the trial court. The motion must identify
       an issue sought to be reviewed on appeal and show:

             (i) that the issue is one that is of record and that must be initially
       decided by the trial court; or

             (ii) that development of a factual record is required for appellate
       consideration of the issue. [Emphasis added.]

       In order to file a proper motion to remand under MCR 7.211(C)(1), a defendant

must file the motion within the time provided for filing his brief on appeal, which could

have been done by defendant. However, the allowable grounds for maintaining such a

motion are limited. Under this rule, the motion must articulate that a remand is necessary

because the issue is either (i) one that is “of record and . . . must be initially decided by

the trial court” or (ii) one in which “development of a factual record is required for

appellate consideration of the issue.” MCR 7.211(C)(1)(a)(i) and (ii). Subsection (i)

clearly requires that remand be necessary because the underlying issue is one that the trial

court must resolve before appellate adjudication. Subsection (ii) clearly requires that

remand be necessary because further factual development is needed before the case is

ripe for appellate adjudication. In this case, filing a motion under subsection (i) would


                                             14
not have been proper because the trial court could not have initially decided this issue.

Filing a motion under subsection (ii) would also not have been proper because the issue

was not one that required further factual development before the case was ripe for

appellate review. To the contrary, in this case, the issue was not ripe for remand to the

trial court until the appellate court completed its review. Thus, a proper motion to

remand for resentencing could not have been filed under MCR 7.211(C)(1) because

neither of these two grounds enumerated in the court rule applied to this circumstance.32

We find that it would have been impossible for defendant to have filed a proper motion

to remand in the Court of Appeals if we narrowly interpret the phrase a proper motion in

MCL 769.34(10) to mean only a motion filed under 7.211(C)(1).

       We next examine what purpose is served by the requirement of a proper motion in

order to determine if an adequate mechanism exists in our court rules to satisfy this

statutory mandate. The purpose of a motion is to request a court to rule on an issue on a

timely basis when the issue is ripe for adjudication. Given that defendant made his

request as part of his brief on appeal, his request served this purpose. It was presented on

a timely basis and provided the Court of Appeals with all necessary information to make

a decision. The only possible defect in this process is that his request was not made in a


       32
           This case presents unique circumstances. Defendant is seeking a remand
because his sentence for armed robbery is now based on inaccurate information.
However, this sentence was not based on inaccurate information until the Court of
Appeals determined that the felonious-assault convictions were erroneous. The issue of a
remand for resentencing was not ripe for adjudication until the Court of Appeals rendered
its decision.



                                            15
separate pleading. However, we cannot assume that the Legislature necessarily intended

that a proper motion to remand be done in a separate filing.

       “Motion” is defined as a “written or oral application requesting a court to make a

specified ruling or order.”33 “Application” is defined as a “request or petition.”34 Under

this broad definition of a motion, a separate pleading was not required because defendant

made a written request for the court “to make a specified ruling or order.” Nothing

further was required given these circumstances. Requiring a defendant to file a separate

pleading would necessitate a party to request review of an issue that is not ripe for

review. We conclude that when the request to remand will not be ripe for review until

after the Court of Appeals has adjudicated the merits, the mandate of a proper motion in

MCL 769.34(10) is met when a defendant makes a request to remand for resentencing

with supporting grounds within his appellate brief.

       The Michigan Court Rules allow for this broad construction. MCR 1.105 permits

construction of the court rules “to secure the just, speedy, and economical determination

of every action and to avoid the consequences of error that does not affect the substantial

rights of the parties.” A just, speedy, and economical determination is served by not

requiring that futile motions be filed, which only present issues to the court that are not

yet ripe for review. Further, our construction of the statute avoids the consequences of

error that would result from imposing a dubious technical requirement that serves no


       33
            Black’s Law Dictionary (8th ed).
       34
            

Id.

                                               16
purpose other than elevating form over substance. Given that the prosecution had notice

and the ability to present its counter arguments, no substantial right of the prosecution

was impaired by imposing a broader construction of the statute.

       Moreover, “[i]t is difficult to imagine something more ‘inconsistent with

substantial justice’ than requiring a defendant to serve a sentence that is based upon

inaccurate information.”35 For these reasons, we decline to read MCL 769.34(10) as

requiring that a defendant do the impossible in order to receive the relief that substantial

justice requires.36 Clearly the circumstances before us mandate such a conclusion, and

we accordingly hold that defendant filed a proper motion to remand in the Court of

Appeals, as required by MCL 769.34(10).

       Finally, we decline to address defendant’s constitutional arguments, as we find it

unnecessary to do so under these circumstances. This Court has long held that courts

should not grapple with finding a constitutional question when the case can be decided on

other grounds. Booth Newspapers, Inc v Univ of Mich Bd of Regents, 

444 Mich 211, 234

;

507 NW2d 422

 (1993); see also Ashwander v Tennessee Valley Auth, 

297 US 288, 341, 345-356

; 

56 S Ct 466

; 

80 L Ed 688

 (1936) (Brandeis, J., concurring); United States v



       35
         Francisco, 

474 Mich at 89

 n 6. Further, MCR 7.216(A)(7) allows the Court of
Appeals to grant further or different relief as the case may require at any time on the
terms it deems just. Thus, the Court of Appeals has the discretion to remand for
resentencing when it vacates a conviction as justice demands.
       36
          See MCR 2.613(A) (stating that an error does not justify disturbing a judgment
“unless refusal to take this action appears to the court inconsistent with substantial
justice”); Francisco, 

474 Mich at 89

 n 6.



                                            17
Lovett, 

328 US 303, 320

; 

66 S Ct 1073

; 

90 L Ed 1252

 (1946) (Frankfurter, J.,

concurring). Since the case before us can be decided on other grounds, we will not opine

on the constitutional arguments presented.

                                   IV. CONCLUSION

       We heard oral argument on whether to grant defendant’s application for leave to

appeal. At issue is whether defendant is entitled to resentencing for an armed-robbery

conviction when the Court of Appeals vacated his concurrent convictions for felonious

assault that were used as a factor in calculating his sentence for armed robbery. Court of

Appeals remands for resentencing are governed by MCL 769.34(10), which requires that

cases be remanded when the sentence is based on inaccurate information. We therefore

conclude that defendant is entitled to resentencing because his sentence is now based on

inaccurate information. We further conclude that because defendant requested a remand

for resentencing as part of his appeal to vacate the felonious-assault convictions, he

complied with the requirement of MCL 769.34(10) that a request to remand be made in a

proper motion filed in the Court of Appeals.

       Accordingly, the Court of Appeals erred by failing to remand for resentencing, and

in lieu of granting leave to appeal, we reverse that portion of the judgment of the Court of

Appeals in which it concluded that it could not remand for resentencing. We therefore

vacate defendant’s sentence and remand defendant’s case for resentencing.


       KELLY, C.J., and CAVANAGH and MARKMAN, JJ., concurred with HATHAWAY, J.




                                             18
                             STATE OF MICHIGAN

                                    SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                            No. 138988

LEONARD LEPPEL JACKSON,

              Defendant-Appellant.


CORRIGAN, J. (concurring).

       I concur in the majority’s result, but would decide this case on different grounds. I

would hold that defendant is entitled to resentencing because the Court of Appeals

vacated for legal insufficiency his felonious assault convictions, which were used as a

factor in calculating his sentence.    I do not believe that MCL 769.34(10) governs

defendant’s entitlement to relief in this case when his request for resentencing is based on

the Court of Appeals’ ruling, rather than any error in scoring the sentencing guidelines or

inaccurate information relied on by the circuit court in determining his sentence.

       MCL 769.34(10) provides:

              If a minimum sentence is within the appropriate guidelines sentence
       range, the court of appeals shall affirm that sentence and shall not remand
       for resentencing absent an error in scoring the sentencing guidelines or
       inaccurate information relied upon in determining the defendant’s sentence.
       A party shall not raise on appeal an issue challenging the scoring of the
       sentencing guidelines or challenging the accuracy of information relied
       upon in determining a sentence that is within the appropriate guidelines
       sentence range unless the party has raised the issue at sentencing, in a
      proper motion for resentencing, or in a proper motion to remand filed in the
      court of appeals.

      As the majority properly notes, the circuit court in this case assessed 20 points

under prior record variable 7 (PRV 7)1 for the two felonious assault convictions that the

Court of Appeals later vacated.2     The resulting minimum sentence range under the

sentencing guidelines was 108 to 270 months. Noting specifically that it was imposing a

sentence at the lower end of the guidelines range, the circuit court sentenced defendant to

a prison term of 108 to 240 months for the armed robbery conviction. Without the two

subsequently vacated felonious assault convictions, PRV 7 would have been scored at

zero points, rather than 20 points. Defendant also challenged the scoring of offense

variable (OV) 1 (aggravated use of a weapon)3 and OV 2 (lethal potential of the weapon

possessed or used)4 in the Court of Appeals. The Court of Appeals held that OV 1 should

have been scored at 5 points instead of 15 points and that OV 2 should have been scored

at zero points instead of 5 points.5 These corrections result in a corrected guidelines

range of 51 to 127 months when adjusted for defendant’s third-offense habitual offender



      1
         MCL 777.57(1)(a) provides that 20 points should be assessed if “[t]he offender
has 2 or more subsequent or concurrent convictions[.]”
      2
        The prosecution did not appeal the Court of Appeals’ decision to vacate the two
felonious assault convictions.
      3
          MCL 777.31(1).
      4
          MCL 777.32(1).
      5
       The prosecution did not appeal the Court of Appeals’ decision concerning OV 1
and OV 2, nor did defendant address it in this Court.


                                            2
enhancement.6 Defendant’s minimum sentence of 108 months is within the corrected

guidelines range of 51 to 127 months.

      The majority concludes that MCL 769.34(10), as interpreted in People v

Francisco, 

474 Mich 82

; 

711 NW2d 44

 (2006),7 requires a remand for resentencing

because defendant’s sentence “is now based on inaccurate information.”

      While I agree that defendant is entitled to resentencing, I respectfully disagree

with the majority that MCL 769.34(10) governs under the circumstances of this appeal.

Because defendant’s minimum sentence of 108 months is within the corrected guidelines

range of 51 to 127 months, MCL 769.34(10), if applied here, would dictate that the Court

of Appeals “shall affirm” defendant’s sentence and “shall not remand for resentencing

absent an error in scoring the sentencing guidelines or inaccurate information relied upon

in determining the defendant's sentence.” For purposes of this appeal, there is no claim

of an “error in scoring the sentencing guidelines.”8 Thus, the relevant inquiry under

      6
       The Court of Appeals incorrectly stated that the corrected guidelines range is 51
to 127½ months.
      7
         The majority in Francisco concluded that the defendant was entitled to
resentencing under MCL 769.34(10) because although the defendant’s minimum
sentence was within the appropriate guidelines sentencing range, a scoring error altered
the appropriate guidelines range and the defendant had preserved the issue at sentencing.

       Francisco involved a claim of error in scoring the defendant’s guidelines
sentencing range, a sentencing challenge that clearly falls under MCL 769.34(10). For
the reasons explained in this opinion, I would hold that MCL 769.34(10) does not apply
here, where the Court of Appeals has vacated convictions used as a factor in defendant’s
sentencing. Accordingly, I do not believe that Francisco governs this case.
      8
         As noted, the scoring of OV 1 and OV 2 was at issue in the Court of Appeals but
has not been raised here.


                                            3
MCL 769.34(10) is whether the circuit court “relied upon” “inaccurate information . . . in

determining the defendant’s sentence.”

       When interpreting statutes, “our primary task . . . is to discern and give effect to

the intent of the Legislature.” Sun Valley Foods Co v Ward, 

460 Mich 230, 236

; 

596 NW2d 119

 (1999). In interpreting a statute, “we consider both the plain meaning of the

critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’”

Id. at 237

, quoting Bailey v United States, 

516 US 137, 145

; 

116 S Ct 501

; 

133 L Ed 2d 472

 (1995). “As far as possible, effect should be given to every phrase, clause, and word

in the statute.” Sun Valley, 

460 Mich at 237

. “The statutory language must be read and

understood in its grammatical context, unless it is clear that something different was

intended.” 

Id.

       I disagree with the majority’s interpretation of “inaccurate information relied upon

in determining the defendant’s sentence” as encompassing the circumstances of this case.

In my view, a plain reading of this language suggests that it refers to factual information,9

and this is consistent with our past understanding of the term.10 When the circuit court


       9
         Random House Webster’s College Dictionary (2005) defines “information,” in
relevant part, as follows: “1. knowledge communicated or received concerning a
particular fact or circumstance. 2. knowledge gained through study, communication,
research, etc.; data. 3. the act or fact of informing.” “Inaccurate” is defined as “not
accurate; incorrect, or untrue.” 

Id.

       10
            See People v Miles, 

454 Mich 90, 96-97

; 

559 NW2d 299

 (1997):

             A line of Michigan cases hold that sentences based on inaccurate
       information are invalid. People v Lauzon, 

84 Mich App 201

; 

269 NW2d 524

 (1978) (the trial court erred when it sentenced the defendant under the


                                             4
determined defendant’s sentence, the relevant information—the fact of defendant’s two

felonious assault convictions—was accurate.        The information concerning the two

convictions is a different question than the legal validity of those convictions. Because

there was no inaccuracy in the information the circuit court relied on in determining

defendant’s sentence, MCL 769.34(10) applied here dictated that that the Court of

Appeals “shall affirm” defendant’s sentence and “shall not remand for resentencing.”

       I would hold, however, that MCL 769.34(10) does not apply here, where

defendant seeks resentencing on the basis of the constitutional error in the felonious

assault convictions used as a factor in his sentencing.11        The placement of MCL

769.34(10) in the statutory scheme suggests that it addresses specific types of

nonconstitutional sentencing errors, not a constitutional error in an underlying conviction.


       mistaken belief that he had committed a burglary while out on bond);
       People v Corlin, 

95 Mich App 740

; 

291 NW2d 188

 (1980) (the presentence
       report erroneously stated that the defendant had pleaded guilty of
       possession, which carried a maximum penalty of two years, rather than
       delivery, which carried a maximum penalty of seven years); People v Hale
       (After Remand), 

106 Mich App 306

; 

308 NW2d 174

 (1981) (error was
       found because the defendant's cooperation with the police was not made
       known to the court at the time of sentencing); People v Hildabridle, 

45 Mich App 93

; 

206 NW2d 216

 (1973) (it was error for the court to sentence
       the defendant on the basis of inaccurate information regarding the value of
       the stolen property).
       11
         “[T]he Due Process Clause protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 

397 US 358, 364

; 

90 S Ct 1068

; 

25 L Ed 2d 368

(1970). Legal insufficiency is a failure by the prosecution to prove each element of the
charged crime beyond a reasonable doubt. See also People v Johnson, 

460 Mich 720, 722

; 

597 NW2d 73

 (1999) (“‘The sufficient evidence requirement is a part of every
criminal defendant’s due process rights.’”) (citation omitted).



                                             5
The provisions of MCL 769.34 address the application of the sentencing guidelines, when

a court may depart from the appropriate sentencing guidelines range, when intermediate

sanctions are to be imposed, and the like. Reading in context, I see no indication that the

Legislature intended MCL 769.34(10) to preclude resentencing when a court has vacated

for insufficiency of evidence convictions used as a factor in sentencing. I would hold that

defendant is entitled to resentencing on the basis of the reversal of his felonious assault

convictions and that MCL 769.34(10) does not apply. See People v Conley, 

270 Mich App 301

; 

715 NW2d 377

 (2006).12


      12
          In Conley, the circuit court improperly considered the defendant’s refusal to
admit his guilt when imposing the defendant’s sentence. The Court of Appeals observed
that

       [r]ead literally in isolation, [MCL 769.34(10)] might seem to preclude this
       Court from granting relief on the basis of the trial court’s error in
       considering Conley’s refusal to admit guilt because it is undisputed that
       Conley was sentenced within the sentencing guidelines range and this error
       does not involve the scoring of the guidelines or the consideration of
       inaccurate information.

              But the erroneous consideration of Conley’s refusal to admit guilt
       was a constitutional error because it violated his constitutional right against
       self-incrimination. It is axiomatic that a statutory provision, such as MCL
       769.34(10), cannot authorize action in violation of the federal or state
       constitutions. Accordingly, we conclude that MCL 769.34(10) cannot
       constitutionally be applied to preclude relief for sentencing errors of
       constitutional magnitude. We do not hold MCL 769.34(10) to be
       unconstitutional. Rather, we construe MCL 769.34(10) as simply being
       inapplicable to claims of constitutional error. [Conley, 

270 Mich App at 316

.]

See also United States v Tucker, 

404 US 443, 447-449

; 

92 S Ct 589

; 

30 L Ed 2d 592

(1972) (holding that when the sentencing court specifically considered convictions later
deemed unconstitutional under Gideon v Wainwright, 

372 US 335

; 

83 S Ct 792

; 

9 L Ed 6

       For these reasons, I concur in the result reached by the majority but would hold

that defendant is entitled to a remand for resentencing because convictions used as a

factor in his sentencing were later vacated for insufficiency of evidence. I respectfully

disagree with the majority because I do not believe that MCL 769.34(10) governs

defendant’s entitlement to resentencing.          It is the Court of Appeals’ subsequent

determination that there was insufficient evidence to support defendant’s felonious

assault convictions,13 rather than any error in scoring the guidelines or inaccurate

information relied on by the trial court, that entitles defendant to resentencing.


       YOUNG, J., concurred with CORRIGAN, J.


       DAVIS, J., did not participate in the decision of this case in order to avoid

unnecessary delay to the parties in a case considered by the Court before he assumed

office by following the practice of previous justices in transition and participating only in

those cases for which his vote would be result-determinative. His nonparticipation in this

decision does not affect his eligibility to participate in deciding a motion for rehearing.




2d 799 [1963], in imposing the defendant’s sentence, remand for resentencing was
necessary in order to prevent “[e]rosion of the Gideon principle”).
       13
         As the prosecution never filed an appeal, the propriety of the Court of Appeals’
ruling regarding the vacation of defendant’s felonious assault convictions is not before
the Court.



                                              7