Appeal filed after error is found in the sentencing manual

The Presque Isle County prosecutor?s office has filed an appeal in the 2005 conviction of cocaine dealer Terry Ganske, after prosecutor Don McLennan found what he believes is an error in the ?Michigan Sentencing Guidelines? manual. The probation officer, attorneys for both sides and the judge had all ?scored? Ganske pursuant to the manual published by West Publishing. The manual is the scoring guide for all defendants in every felony case. At sentencing, McLennan argued that conspiracy to deliver cocaine was a drug offense, which should be a more serious category and should be scored as such.

Ganske already has served almost a year of his seven to 30-year prison term. He was found guilty of four charges, including conspiracy to possess 450 to 999 grams of cocaine; conspiracy to possess with intent to deliver 450 to 999 grams of cocaine; delivery of 50 to 449 grams of cocaine; and delivery of marijuana. His girlfriend, Sheila Markey, also received prison time for her offenses, although they were not identical.

“IT IS UNEXPECTED that an error would be found in the manual,? said McLennan. ?But it happened here, and I’m glad for everyone’s sake that we caught it. The significance of this case will be not just for Mr. Ganske, but will extend to drug offenders all over the state of Michigan who are convicted under the conspiracy statute.” According to the manual, Ganske should have been scored under “public safety” offense variables rather than under “controlled substance” offense variables. ?This scoring turned out to be very beneficial to Mr. Ganske because he would have received 50 points for the offense variable based on quantity of drugs involved if he had been scored under the ?controlled substance? offense variables,? said McLennan. ?It would have meant a minimum of several years more in prison. The People objected to the scoring, but the lower sentence was imposed based upon the scoring under the manual.?

During last Friday?s prosecutor?s report, McLennan told members of the Presque Isle County Board of Commissioners that the filing fee with the Court of Appeals was $375.

ON APPEAL, McLennan said the People have pointed out that the manual overlooks the specific req

uirement of Michigan Statute 777.21, which requires that when an, “offender is being sentenced for a violation described in section 18 of this chapter (i.e. conspiracy), determine the offense class, offense variable level, and prior record variable level based on the underlying offense.” ?Clearly, then, because the underlying offense was delivery of cocaine, the scoring should have been based on the controlled substances offense variable,? said McLennan. ?The manual is flat wrong when it comes to that issue. I have talked with other attorneys from all around the state there really is no question about it.

McLennan believes the error came from the publisher, and will result in a printed correction being pasted over the erroneous section. It is not the first time an error has been found in the manual. A grid for the offense of second-degree murder recently had to be corrected.

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