Resentencing if counsel ineffective for failing to challenge offense variables.

In People v Wilding, __ Mich __ (#147675, May 29, 2015 the Michigan Supreme Court remanded to the trial court for an evidentiary hearing, pursuant to People v Ginther, 390 Mich 436 (1973), as to whether the defendant’s trial counsel was ineffective for failing to object to the scoring of OVs 8 and 10.   (The Court of Appeals had held that offense variable 8 (MCL 777.38(1)(a)) and offense variable 10 (MCL 777.40(1)(a)) were scored correctly, and that trial counsel was not ineffective for failing to object to the scoring of those variables.) 

In People v Harris, Unpub Per Curiam Opinion (#320233, 5/19/2015) the Court of Appeals  affirmed defendant’s convictions, but vacated his sentences and remanded for resentencing.  Defendant Harris argued that the trial court erred in scoring offense variables (OVs) 1, 4, 10, and 14, and that his counsel was ineffective for failing to challenge OVs 1, 4, and 10. The Court of Appeals held that while defendant was not entitled to relief with regard to his challenges to the scoring of these variables, his counsel was ineffective for failing to challenge the trial court’s scoring of OV 1.  If counsel had raised the objection, the trial court may well have assigned no points to OV 1 on the basis of Jones’s trial testimony and, thus, a different result was reasonably likely.