Order                                                                                          Michigan Supreme Court
                                                                                                     Lansing, Michigan

  September 30, 2011                                                                                     Robert P. Young, Jr.,
                                                                                                                   Chief Justice

  143177                                                                                                 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: 143177
                                                                      COA: 297155
                                                                      Macomb CC: 2009-001960-FH
  LEONARD RICHARD OLEAR,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the April 21, 2011
  judgment 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. (concurring).

          I concur with the order denying leave to appeal. The Court of Appeals correctly
  vacated defendant’s probation sentence and remanded for resentencing. However, in
  light of the Court of Appeals’ disposition, the majority’s comments regarding the trial
  court’s bases for imposing a downward departure sentence are dicta. Moreover, they are
  inaccurate. As Judge MURRAY’S partial dissenting opinion observed, some of the factors
  that the majority finds inappropriate are appropriate considerations for the trial court.1

          I agree with Judge MURRAY that the majority attempted to “place handcuffs on the
  trial court’s decision on remand . . . .”2 The more prudent action would have been to
  refrain from addressing the issue.



  1
      People v Daniel, 462 Mich 1, 7 (2000); People v Fields, 448 Mich 58, 77 (1995).
  2
   People v Olear, unpublished opinion per curiam of the Court of Appeals, issued April
  21, 2011 (Docket No. 297155) (MURRAY, J., concurring in part, dissenting in part).



                             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.
                             September 30, 2011                  _________________________________________
           y0927                                                                 Clerk
