Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  February 5, 2020                                                                                  Bridget M. McCormack,
                                                                                                                   Chief Justice

  160213                                                                                                  David F. Viviano,
                                                                                                          Chief Justice Pro Tem

                                                                                                        Stephen J. Markman
                                                                                                             Brian K. Zahra
  PEOPLE OF THE STATE OF MICHIGAN,                                                                     Richard H. Bernstein
            Plaintiff-Appellee,                                                                        Elizabeth T. Clement
                                                                                                       Megan K. Cavanagh,
                                                                                                                        Justices
  v                                                                 SC: 160213
                                                                    COA: 348612
                                                                    Muskegon CC: 17-006190-FH;
  PHILIP CHARLES SWIFT,                                             17-006389-FC; 17-006390-FH
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the July 15, 2019 order
  of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of
  granting leave to appeal, we VACATE defendant’s sentence and REMAND this case to
  the Muskegon Circuit Court. Offense Variable 4 appears to have been scored based
  solely on the prosecutor’s assertion. However, an attorney’s statements are not evidence,
  People v Ison, 132 Mich App 61, 68 (1984), and offense variables must be scored based
  on a preponderance of the evidence, People v Hardy, 494 Mich 430, 438 (2013).
  Because a 10-point reduction for Offense Variable 4 would result in a lower sentencing
  range, defendant is entitled to resentencing. People v Francisco, 474 Mich 82 (2006).

        We do not retain jurisdiction.




                           I, Larry S. Royster, 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.
                           February 5, 2020
           a0129
                                                                               Clerk
