People v. Strickland
People v. Strickland
Opinion of the Court
Defendant pled guilty to charges of larceny from a person, MCL 750.357; MSA 28.589, and being an habitual offender, third offense, MCL 769.11; MSA 28.1083. Defendant was sentenced as an habitual offender to 7 Vi to 15 years in prison. Defendant appeals from his sentence as of right. We affirm.
Defendant argues that resentencing is required because the trial court failed to respond to his objections at sentencing concerning the scoring of the Sentencing Information Report (sir). We disagree.
Defendant was sentenced as an habitual offender. The circuit judge did refer to the guidelines when sentencing defendant, but we find this
Affirmed.
Dissenting Opinion
(dissenting). I respectfully dissent.
Defendant objected at sentencing to the scoring of three of the offense variables. The trial court never responded to defendant’s objections, not even to summarily reject them. Where a defendant raises an effective challenge to the scoring of the sir, the burden shifts to the prosecution to prove by a preponderance of the evidence that the facts are as the prosecution asserts in support of the scoring. People v McCracken, 172 Mich App 94, 105; 431 NW2d 840 (1988). However, where the record of the trial or the plea proceeding contains evidence supporting or opposing a proposed decision and the scoring of a variable, it is within the discretion of the sentencing judge to determine whether to entertain further proofs. Id.
As for the majority’s conclusion that any error in the scoring of the sir is harmless since defendant was convicted as a habitual offender, I would normally agree. In general, I agree with the majority’s reasoning since the guidelines are inapplicable to habitual offender cases. However, I do not believe that the error is harmless in this case. The sentencing transcript indicates that the sentencing judge did take the guidelines into account in sentencing defendant. Although the trial court was not required to consider the guidelines, once it chose to do so it was obligated to consider an accurately scored sir. Simply put, defendant has the right to have the sentencing judge consider accurate information. Accordingly, I would remand for resentencing.
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