Order                                                                                       Michigan Supreme Court
                                                                                                  Lansing, Michigan

  July 22, 2011                                                                                       Robert P. Young, Jr.,
                                                                                                                Chief Justice

  142843                                                                                              Michael F. Cavanagh
                                                                                                            Marilyn Kelly
                                                                                                      Stephen J. Markman
                                                                                                      Diane M. Hathaway
                                                                                                          Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                                        Brian K. Zahra,
            Plaintiff-Appellee,                                                                                      Justices


  v                                                                SC: 142843
                                                                   COA: 302290
                                                                   Lenawee CC: 09-014386-FH
  DONALD GERALD JOHNSTON,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the February 28, 2011
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        MARILYN KELLY, J. (dissenting).

         I dissent from the order denying defendant’s application for leave to appeal
  because I believe that offense variable (OV) 10 was improperly scored. As I stated in my
  concurring statement in People v Brandt, 489 Mich 875, 876 (2011), OV 10 contemplates
  a living human victim; an institutional victim cannot be a vulnerable victim as
  contemplated by the definition of “vulnerability” in MCL 777.40(3)(c). Accordingly,
  zero points should have been assessed for OV 10. Since the resulting change in
  defendant’s total OV score would produce a lower recommended minimum sentence
  range under the sentencing guidelines, I would vacate defendant’s sentence and remand
  the case for resentencing with instructions to the trial judge to assess zero points for
  OV 10. See People v Francisco, 474 Mich 82 (2006).

        CAVANAGH, J., joins the statement of MARILYN KELLY, J.




                          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.
                          July 22, 2011                       _________________________________________
           p0719                                                              Clerk
