Sentencing; Motion to Correct Invalid Sentence; Scoring of OV 19; MCL 777.49; “Interference with the administration of justice”; MCL 777.49(b) & (c); People v. Hershey; People v. Sours; People v. Ratcliff; People v. Barbee; People v. Ericksen; People v. Steele; Threat of force; People v. McDonald; People v. Endres; Resentencing; People v. Francisco

The court held that defendant was entitled to resentencing based on the incorrect scoring of OV 19. He pled guilty to two counts of second-degree home invasion and one count of first-degree home invasion. The trial court sentenced him to 120 months to 15 years for each of the second-degree home invasion convictions and 130 months to 20 years for the first-degree home invasion conviction. The court previously denied his delayed application for leave to appeal, but the Supreme Court remanded. On remand, the court remanded to the trial court for a determination of indigency and, if established, the appointment of an attorney. On remand, defense counsel filed a Motion to Correct Invalid Sentence that was denied. On appeal, the court agreed with defendant that 15 points were incorrectly assessed for OV 19 and that only 10 points should have been assessed. Defendant acknowledged that the trial court could have assessed 10 points “for interfering or attempting to interfere with the administration of justice.” However, although he “failed to obey an order to show his hands while hiding under a pile of” clothes, this was “a continued attempt to avoid detection and not a threat of force against law enforcement.” Defendant “disobeyed a command, and while that was frustrating to his apprehension, it was not a threat of force.” Thus, it was error to score OV 19 at 15 points, and he was entitled to resentencing because the correction of the score from 15 points to 10 points changed his “OV level to 45 points, sentencing grid to D-IV, and sentencing guidelines range to 72 to 120 months.” The court affirmed his convictions, but remanded for resentencing.