PEOPLE OF MI V BOYCE D GRAVES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 12, 2002
Plaintiff-Appellee,
v
No. 229655
Wayne Circuit Court
LC No. 00-002956
BOYCE D. GRAVES,
Defendant-Appellant.
Before: Bandstra, P.J., and Murphy and Murray, JJ.
PER CURIAM.
Defendant appeals as of right from his sentence of two to ten years in prison imposed on
his conviction of assault with intent to do great bodily harm less than murder, MCL 750.84. We
vacate the sentence and remand this matter for resentencing. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
After a bench trial, the trial court convicted defendant of assault with intent to do great
bodily harm less than murder, and possession of a firearm during the commission of a felony,
MCL 750.227b. The legislative sentencing guidelines recommended a minimum term range of
ten to twenty-three months for the assault conviction. The trial court imposed the mandatory
two-year term for the conviction of felony-firearm, and sentenced defendant to twenty-four
months to ten years in prison for the assault conviction. The trial court did not acknowledge that
the twenty-four-month term was a departure from the sentencing guidelines, and gave no reason
for imposing that term.
The legislative sentencing guidelines apply to offenses committed on or after January 1,
1999. MCL 769.34(1). In most instances, a trial court is required to impose a minimum
sentence within the calculated guidelines range. MCL 769.34(2)(a) and (b). A trial court may
depart from the guidelines if substantial and compelling reasons exist to do so. MCL 769.34(3).
To constitute a substantial and compelling reason for departing from the guidelines, the reason
must be objective and verifiable, and must irresistibly hold the attention of the court. People v
Babcock, 244 Mich App 64, 75; 624 NW2d 479 (2000). Further, the reason must justify the
particular departure at issue. People v Hegwood, 465 Mich 432, 437 n 10; 636 NW2d 127
(2001).
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We vacate defendant’s sentence of twenty-four months to ten years for the assault
conviction, and remand for resentencing on that conviction. The twenty-four-month term
constitutes a departure from the guidelines. The trial court did not acknowledge the departure,
stated no reasons for departing from the guidelines, and in fact stated no reasons for imposing
that particular term. The sentencing information report signed by the trial court indicates that the
sentence did not constitute a departure from the guidelines. We cannot determine whether the
trial court intended to sentence defendant within the guidelines and inadvertently failed to do so,
or whether the trial court intended to exceed the guidelines but failed to articulate its reasons for
doing so. The trial court’s failure to state substantial and compelling reasons for departing from
the guidelines mandates that the matter be remanded for resentencing. MCL 769.34(11).
Defendant’s sentence for assault with intent to do great bodily harm less than murder is
vacated, and this matter is remanded for resentencing. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ William B. Murphy
/s/ Christopher M. Murray
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