Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  January 27, 2012                                                                                     Robert P. Young, Jr.,
                                                                                                                 Chief Justice

  143780                                                                                               Michael F. Cavanagh
                                                                                                             Marilyn Kelly
                                                                                                       Stephen J. Markman
                                                                                                       Diane M. Hathaway
                                                                                                           Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                                         Brian K. Zahra,
            Plaintiff-Appellant,                                                                                      Justices

  v                                                                 SC: 143780
                                                                    COA: 298299
                                                                    Wayne CC: 09-011819-FH
  ANTHONY BROOKS,
           Defendant-Appellee.

  _________________________________________/

          On order of the Court, the application for leave to appeal the August 16, 2011
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we VACATE, as dicta, the portion of the judgment of the
  Court of Appeals that addressed the trial court’s decision to upwardly depart from the
  sentencing guidelines. Because the Court of Appeals granted defendant a new trial,
  defendant’s challenge to his sentence was rendered moot. The Court of Appeals’
  discussion of this issue also wrongly left the impression that a departure sentence of life
  may only be imposed on a habitual offender when the sentencing offense is murder or a
  Class A felony. See MCL 769.12(1). We express no opinion, however, whether the
  extent of the trial court’s sentencing departure was justified under People v Smith, 482
  Mich 292 (2008). In all other respects, leave to appeal is DENIED because we are not
  persuaded that the remaining question presented should be reviewed by this Court.

        MARILYN KELLY, J., would deny leave to appeal.




                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           January 27, 2012                    _________________________________________
           t0124                                                               Clerk
