People v. Krist
People v. Krist
Opinion of the Court
Defendant was originally convicted by a jury of two counts of armed robbery, MCL 750.529; MSA 28.797. He was sentenced by St. Clair County Circuit Judge Halford I. Streeter to concurrent prison terms of from 14 to 40 years on each count. Those sentences subsequently were reduced to concurrent terms of from 10 to 40 years by Judge Streeter upon a motion for resentencing.
Thereafter, on April 21, 1980, Judge Streeter resentenced defendant on the unarmed robbery conviction to from 10 to 15 years imprisonment, to be served concurrently with defendant’s armed robbery conviction. Defendant appeals as of right from the order of sentence.
Defendant claims that he is entitled to be resen-tenced again because the trial judge failed to exercise his discretion regarding a claimed inaccuracy in defendant’s updated presentence report. We hold that he is not so entitled.
The dissent would apparently opt for a per se rule that a sentencing judge’s failure to respond to claimed inaccuracies in a presentence report will make invalid an otherwise permissible sentence in all cases. We do not view the cases cited in support of this claim as imposing an inflexible resentenc-ing requirement. We believe that the authorities are distinguishable.
In People v Major, 106 Mich App 226; 307 NW2d 451 (1981), defendant plead guilty to one count of drawing a check without having an account, MCL 750.131(a); MSA 28.326(1), and one count of attempting to obtain over $100 by means of false pretenses, MCL 750.92, 750.218; MSA 28.287, 28.415. Thereafter, defendant received a sentence of from 40 months to 5 years imprisonment on the attempted false pretenses charge and from 16 months to 2 years on the no-account check charge. The dispute relevant to this case arose when, prior to sentencing, defense counsel noted the reference
The Major Court remanded the defendant’s case for resentencing, based upon the view that a sentencing court must "at least acknowledge the allegations of defendant” to properly exercise the discretion attending a sentencing decision. Yet, we do not believe that a sentencing judge’s failure to respond to any and all claimed inaccuracies constitutes error per se requiring reversal.
At sentencing, defense counsel acknowledged that she had reviewed the updated presentence report with defendant, and no claim is made that complete allocution was not permitted. Counsel saw fit to raise only one objection to the contents of the presentence report:
"There is one matter which appears to be inaccurate, an inaccurate statement, which Mr. Krist would like to have clarified for the record, your Honor. Mr. Berro in his report expresses some concern regarding a recent institutional behavior report stating that Mr. Krist had threatened a staff member at Jackson.
"Mr. Krist would like the record to reflect that although he was charged with threatening behavior, that charge was dismissed by the institution and his sentence was one of five days’ detention for insolence only.”
The prosecution did not object to the correction of the record, and, although the trial judge did not
We believe that defendant’s second contention on appeal, that his sentence was based in part on the lower court’s consideration of a constitutionally infirm, prior conviction, does not require re-sentencing. People v Jankowski, 408 Mich 79; 289 NW2d 674 (1980).
Affirmed.
A mere finding that error was committed does not require our further conclusion that the error required reversal. In People v Wright (On Remand), 99 Mich App 801, 810-811; 298 NW2d 857 (1980), our inquiry for determining whether specified error also constitutes grounds for reversal was summarized:
"The standard for harmless error involves a dual inquiry: (1) was the error so offensive to the maintenance of a sound judicial system as to require reversal, and (2), if not, was the error harmless beyond a reasonable doubt?”
For similar reasons, we also distinguish the contrary holdings in People v Perez, 94 Mich App 759; 289 NW2d 857 (1980), and People v McIntosh, 62 Mich App 422, 440-448; 234 NW2d 157 (1975), rev’d on other grounds 400 Mich 1; 252 NW2d 779 (1977). In Perez, information in the presentence report and in a letter from the Bay County prosecutor’s office to the effect that the defendant had been a major heroin dealer in the Saginaw area for some time likely would have affected any sentence imposed upon the defendant’s guilty plea to delivery of heroin. Similarly, in McIntosh, the claimed inaccuracies, if not cured or discounted, would have portrayed the defendant as a multiple offender, drug addict, and psychologically deficient person.
Dissenting Opinion
(dissenting). I must respectfully dissent. GCR 1963, 785.12 provides that both the prosecution and the defense must be given an opportunity to explain or controvert any factual representations that appear in the presentence report. When, as in the instant case, a party chooses to exercise this right, the trial court must
Because the trial court in the instant case failed to respond in any manner to defendant’s claim, it failed to recognize and exercise its discretion. On the basis of the present record, this Court cannot determine whether the trial court considered the information claimed to be inaccurate when passing sentence. Contrary to the majority’s position, it is not reasonable to conclude from a silent record that the trial court exercised its discretion and accepted defendant’s version of the outcome of his prison disciplinary problems.
I am not persuaded by the majority’s attempt to distinguish the prior decisions of this Court, appar
The majority also assumes that the claimed inaccuracy had no bearing on the sentence ultimately imposed. I do not find this conclusion so easy to reach. In the face of a silent record, I am unable to say beyond a reasonable doubt that the trial court did not consider the information claimed to be inaccurate, or, that if it did consider the information, that this did not affect the sentence. Although I do not suggest that the relative seriousness of the alleged inaccuracy should excuse the trial court’s failure to exercise its discretion, it is important to note that information concerning a defendant’s prison conduct is vitally important to the exercise of the trial court’s sentencing discretion. People v Triplett, 407 Mich 510, 516; 287 NW2d 165 (1980). In this regard, the distinction between "threatening behavior” and "insolence” was important to the trial court’s evaluation of defendant’s prison behavior.
When the trial court does nothing in the face of a claimed inaccuracy in a prehearing report, it has
I would remand for resentencing.
The Supreme Court remanded Horace Williams to the trial court for a Robinson hearing, People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), and, if necessary, for resentencing. This order was expressly based on the Court of Appeals dissent in Horace Williams, which had stated in part that resentencing was required because of the trial court’s failure to respond to all of the claimed inaccuracies in the presentence report. People v Horace Williams, 402 Mich 950j (1978) .
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