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No. 130988
| The People of the State of Michigan, |
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Donald A. Kuebler |
Plaintiff-Appellee, |
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(Appeal from Ct of Appeals) |
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(Genesee - Neithercut, G.) |
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| Bernard George Harper, Jr., |
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Michael L. Mittlestat |
| Defendant-Appellant. |
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| __________________________________________ |
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Plaintiff-Appellee's Brief on Appeal>>
Defendant-Appellant's Brief on Appeal>>
Defendant-Appellant's Reply Brief>>
Defendant-Appellant's Supplemental Brief>>
Attorney General and Prosecuting Attorneys Association of Michigan's Amici Curiae Brief>>
Criminal Defense Attorneys of Michigan's Amicus Curiae Brief>>
Background
Bernard George Harper, Jr. was arrested for selling coats that had been stolen from his employer, the Old News Boys of Flint, an organization that distributes donated clothing to the needy. He was charged with embezzlement, larceny in a building and being a fourth habitual offender. He pled guilty to larceny in a building in exchange for the dismissal of the embezzlement charge and the habitual offender supplement. At sentencing, the trial court determined Harper’s prior record variable score (PRV) and his offense variable (OV) score, in order to find the range within which his minimum sentence should fall. The sentencing guidelines indicated that a proper minimum sentence for Harper was in the range of zero to 17 months. This range calls for the imposition of an “intermediate sanction,” which means that the sentencing judge cannot sentence the defendant to a prison term without departing from the guidelines. In this case, Harper was sentenced to two to four years in prison. The sentencing judge explained that he decided to depart from the guidelines because this was Harper’s sixth felony, he had a lengthy criminal history (including three parole revocations), he had out-of-state problems, and his crime in this case involved theft from a charity. Harper filed a motion for resentencing, which was denied without a hearing. The Court of Appeals denied Harper’s application for leave to appeal. Harper appeals.
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