People v. Sharp
People v. Sharp
Opinion of the Court
Defendant pleaded guilty of assault with intent to do great bodily harm less than murder (gbh), MCL 750.84; MSA 28.279, and assault while armed with a dangerous weapon (felonious assault), MCL 750.82; MSA 28.277. In exchange for his pleas, two counts of assault with intent to commit murder were dismissed, MCL 750.83; MSA 28.278. His convictions were based on his involvement in a fight in downtown East Lansing between two groups of young men, during which defendant, seventeen years of age, stabbed two men several times.
On March 14, 1990, defendant was sentenced to concurrent terms of 6 to 10 years for the gbh conviction, 2 Vi to 4 years for the felonious assault
Defendant’s first claim is that the sentencing judge failed to respond to defendant’s challenges to the accuracy of various statements contained in the presentence investigation report (psr) indicating that the victims were attacked for no reason whatsoever. Defendant first raised the issue at the postsentencing hearing on his motion for a withdrawal of the pleas,
We note, and defendant does not dispute, that at sentencing neither defendant nor defense counsel indicated any objection to the accuracy of the psr information, which included the now-disputed statements of two victims and a member of defendant’s group at the time the crime occurred, as well as a victim impact statement from the parents of one of the victims.
In imposing sentence, the judge simply noted that even if the victims had conducted themselves in the manner described by defendant, there was no evidence that defendant was attacked with a weapon or put in fear such that he had a legal excuse for the stabbings.
We find that defendant failed to preserve this issue and therefore decline to review it. In the plain language of the presentence investigation report statute, MCL 771.14(5); MSA 28.1144(5), "/ajt the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report.” (Emphasis added.) MCR 6.425(D)(2)(b) contains essentially the same language.
Here, defendant did not raise the issue until after sentencing. He cites People v Walker, 428 Mich 261; 407 NW2d 367 (1987), as authority allowing postsentencing preservation of issues of psr accuracy. Although Walker allows challenges to be preserved through posttrial proceedings, that case pertains to challenges to scoring of the sentencing guidelines. We decline to extend the rules underlying challenges to scoring decisions to challenges to the accuracy of psr information in light of the statutory language quoted above. See also People v Maxson, 163 Mich App 467, 472, n 1; 415 NW2d 247 (1987).
To follow defendant’s preferred course would in
Defendant also contends that the sentences imposed are disproportionate and that he is entitled to resentencing under People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990), which was released after defendant was sentenced and had filed his claim of appeal. However, the sentence imposed for the gbh conviction, i.e., the greater conviction for which guidelines were scored, was within the guidelines range of thirty-six to eighty months, albeit toward the high end of that range.
We review this case under the Milbourn principle of proportionality rather than the pre-Milbourn "shocks the conscience” standard set forth in People v Coles, 417 Mich 523, 550; 339 NW2d 400 (1983). Defendant’s appeal was pending, although he had not yet filed a brief, át the time Milbourn was released. Milbourn, 669-670.
Under Milbourn, "even a sentence within the guidelines could be an abuse of discretion in unusual circumstances.” (Emphasis added.) Id., 661; People v Broden, 428 Mich 343, 354, n 18; 408 NW2d 789 (1987). Black’s Law Dictionary defines "unusual” as "[uncommon, not usual, rare.” We note the absence of unusual circumstances advanced by defendant on appeal or on the record of proceedings below and therefore hold that defendant’s sentence, falling within the sentencing guidelines range, satisfies the principle of proportionality.
If a defendant or his attorney believes that unusual circumstances exist so that a sentence within the guidelines range would not be proportionate, then those circumstances should be presented to the sentencing judge in open court before
Finally, we note that the sentence imposed for defendant’s felonious assault conviction is shorter than the longest minimum sentence allowed under the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
Affirmed.
The motion for withdrawal of the guilty pleas was abandoned at the hearing without being argued by counsel or ruled on by the judge. Defendant does not raise on appeal any issue with regard to withdrawal of his guilty pleas.
Although defendant did not attach the psr to his brief as claimed, the contents of the disputed statements are set forth in his brief.
Because the felonious assault conviction carried the lesser possible penalty, the guidelines were scored only for the greater conviction of GBH.
Concurring in Part
(concurring in part and dissenting in part). I concur in part and dissent in part.
Although defendant’s sentence should be affirmed, I would remand to strike any suggestion in the presentence report that defendant’s attack was not provoked. Moreover, I disagree with the new waiver rules created by the majority regarding challenges to inaccurate presentence reports and to disproportionate sentences.
At the guilty plea proceeding, after defendant pled guilty, defense counsel informed the court that the victims in the case may have taunted
The probation department then prepared a presentence investigation report (psir) to be used by the judge in fashioning a sentence. The report contained comments by the victims suggesting that defendant and his friends started the fight for no apparent reason. In a letter attached to the report, one victim contended that the attack was not provoked. The report also contained a section relating defendant’s version of the offense. Defendant asserted that the victims initiated the confrontation by shouting obscenities at him and at his friends. Defendant further asserted that he entered the fight only to save his two fifteen- or sixteen-year-old friends from the older, intoxicated college students.
At sentencing, defense counsel indicated that he and defendant had checked the presentence report for accuracy. Aside from several inconsequential changes, both defense counsel and defendant initially told the judge that they had no further factual challenges or corrections. However, during allocution, defense counsel urged the judge to consider as a mitigating factor that the victims had taunted defendant. The prosecutor retorted that the victims denied any provocation.
Although the trial judge recognized that a factual dispute existed regarding provocation, he opted not to resolve it. Rather, he concluded that, even if there were verbal provocation, it did not mitigate the severity of the crime. The judge noted that the victims never attacked defendant with a deadly weapon or put him in fear, and therefore, he had no excuse to stab them.
*508 It’s true that the amount of provocation is at issue, but I have not heard anyone claim that Mr. Sharp was being attacked with a deadly weapon or was put into fear, and there is simply no excuse whatsoever to stab these young men.
Defendant contends that the trial court should have either granted his motion for resentencing or ordered an evidentiary hearing to resolve the conflicting stories over his alleged verbal provocation. MCR 6.425(D)(3) provides:
If any information in the presentence report is challenged, the court must make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account in sentencing. If the court finds merit in the challenge or determines that it will not take the challenged information into account in sentencing, it must direct the probation officer to
(a) correct or delete the challenged information in the report, whichever is appropriate, and
(b) provide defendant’s lawyer with an opportunity to review the corrected report before it is sent to the Department of Corrections.
In this case, the sentencing judge determined that it made no difference whether the victims verbally provoked defendant. Accordingly, there was no need for him to make a finding of fact, order an evidentiary hearing or grant defendant’s motion for resentencing. However, since the court did not take the disputed information into account in sentencing, any reference to an unprovoked attack should have been deleted from the presentence report. MCR 6.425(D)(3); People v Swartz, 171 Mich App 364, 379-381; 429 NW2d 905 (1988).
The majority holds that a defendant cannot challenge the accuracy of a presentence report at
First, our Supreme Court unanimously held in People v Walker
Second, this Court has indicated on several occasions that challenges to the accuracy of information in the psir may be raised either at sentencing or at a motion for resentencing. For example, in People v Puckett
Third, it is well settled that the use of inaccurate information at sentencing may violate defendant’s right to due process. US Const, Am XIV; Const 1963, art 1, § 17; People v Hoyt, 185 Mich
The majority relies on MCL 771.14(5); MSA 28.1144(5) as its reason not to "extend” the Walker rule to challenges to the accuracy of presentence reports. However, the statute merely provides that a party "may challenge, on the record, the accuracy or relevancy of any information contained in the presentence information report” at sentencing. See also MCR 6.425(D)(2)(b). It does not state that defendant is precluded from challenging information in the psir for the first time at a motion for resentencing; it does not state that a challenge "must” be raised at sentencing. In contrast, MCR 2.516(C) requires a specific objection to the court’s jury instruction before the jury retires for deliberations in order to preserve alleged instructional error for appeal.
The majority also is concerned that guilty plea cases will be "tried” at postsentencing hearings. However, where defendant has already pled guilty, no facts remain to be determined other than those contained in the presentence report. Moreover, where, as here, the trial court determines that the challenged information has no bearing on the sentence, an evidentiary hearing is not required. MCR 6.425(D)(3); Swartz, 379-381.
The application of the majority’s new waiver rule to this case is particularly troubling. Here,
Lastly, I disagree with the majority’s dicta that would preclude a criminal defendant from raising mitigating factors to show a disproportionate sentence after allocution. The psir or trial record may reveal mitigating circumstances that trial counsel did. not verbalize during allocution. Often trial counsel will not raise every possible mitigating factor at sentencing, knowing the trial judge’s familiarity with the case. In this and other situations, defendant should not be barred from raising mitigating factors for the first time in a motion for resentencing before the trial court; and we should not be precluded from considering them on appeal.
The sentences should be affirmed but the case remanded for correction of the presentence report.
428 Mich 261, 266; 407 NW2d 367 (1987).
178 Mich App 224, 226-227; 443 NW2d 470 (1989).
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