Police officers saw defendant, a felon, pull a gun out of
his pocket and throw it into some bushes. At trial on weapons charges,
defendant testified that what he threw was a beer bottle, and a defense witness
testified that the gun belonged to him, not defendant, and that he had hidden
it in the bushes, where it was found, before defendant arrived. A jury
convicted defendant of being a felon in possession of a firearm, carrying a
concealed weapon (CCW), and possession of a firearm during commission of a felony,
third offense. The trial judge sentenced defendant as a habitual-fourth
offender to serve concurrent prison terms of 46 months to 75 years for
felon-in-possession and CCW, both consecutive to the mandatory 10-year sentence
for felony-firearm, third-offense. The judge assigned 15 points to OV 19
(interference with administration of justice) based on her belief that
defendant committed perjury when he testified on his own behalf at trial, and
that defendant had prevailed upon the defense witness to fabricate his
testimony. The judge did not articulate any specific facts to support those
beliefs. The judge also provoked an exchange with defendant at sentencing in
which the judge, among other things, repeatedly called the defendant a clown.
The Court of Appeals affirmed in an unpublished opinion. The Supreme Court has
directed oral argument on defendant’s application for leave to appeal to
address: (1) whether the defendant is entitled to a new trial based on
the trial judge’s comments to the jury in lieu of the standard “deadlocked
jury” instruction, M Crim JI 3.12; (2) whether Offense Variable 19 (OV
19), MCL 777.49, was improperly assigned 10 points for interference with the
administration of justice, see People v Hardy, 494 Mich 430, 438 (2013),
and People v Adams, 430 Mich 679, 689 (1988); (3) if OV 19 was
misscored, whether the defendant is entitled to resentencing before a different
judge based on the judge’s verbal exchange with the defendant at sentencing;
and (4) whether he is entitled to resentencing irrespective of the scoring of
Offense Variable 19, MCL 777.49. See, e.g., People v Pennington, 323
Mich App 452 (2018).