People v. Tew , 151 Mich. App. 556 ( 1986 )

151 Mich. App. 556 (1986) 390 N.W.2d 738

PEOPLE
v.
TEW

Docket No. 85594.

Michigan Court of Appeals.

Decided May 6, 1986.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Margaret Horenstein, Assistant Prosecuting Attorney, for the people.

Thomas Jamnik, for defendant.

Before: BEASLEY, P.J., and GRIBBS and M.H. CHERRY,^[*] JJ.

PER CURIAM.

Defendant pled guilty to two counts of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), one count of third-degree criminal sexual conduct, MCL 750.520d; MSA 28.788(4), and one count of unarmed robbery, MCL 750.530; MSA 28.798. Defendant was sentenced to fifteen to one hundred years imprisonment on each of the criminal sexual conduct counts, and ten to fifteen years imprisonment on the unarmed robbery count. After sentencing, defendant moved to withdraw his plea. The motion was denied by the trial court. Defendant appeals from this denial. We affirm the denial of defendant's motion to withdraw his plea, but remand for a hearing on whether the trial court considered allegedly inaccurate information in the presentence report in sentencing defendant.

Defendant contends that his motion to withdraw his guilty pleas should have been granted because he misunderstood the sentence recommendation of a ten- to fifteen-year minimum sentence as being a ten-year minimum to a fifteen-year maximum recommendation and because factual inaccuracies existed in the presentence report.

Defendant's first claim, that he misunderstood the sentence recommendation, is not supported by the record. Defendant's counsel plainly stated the recommendation on the record three different times. Moreover, the recommendation was written out on the plea form. Upon defendant's raising of this issue before the trial court, defense counsel stated on the record that he had explained the recommendation as a ten- to fifteen-year minimum, not a ten- to fifteen-year sentence, whenever he spoke with defendant. On this record we find that the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. People v Henderson, 144 Mich App 801, 803; 377 NW2d 319 (1985).

With respect to defendant's second argument, we first point out that a challenge to the accuracy of a presentence report challenges the sentencing process, not the conviction. Thus, withdrawal of a guilty plea is not an appropriate remedy even if inaccurate information was actually considered and used by the trial court in sentencing. The remedy in such a case would be a resentencing of the defendant.

Where the accuracy of information in a presentence report is challenged, the trial court may make a determination as to the accuracy of the information, or, as a matter of expediency, disregard the challenged information in sentencing the defendant. People v Taylor, 146 Mich App 203, 205; 380 NW2d 47 (1985). In the instant case, the defendant alerted the trial court to an alleged inaccuracy in his presentence report. The court acknowledged the alleged inaccuracy prior to sentencing defendant, but did not clearly indicate whether or not it relied on the challenged information.

This Court has developed three approaches in dealing with such situations. The first is to view the acknowledgment of the alleged inaccuracy as a sufficient response. People v Gray, 125 Mich App 482, 487; 336 NW2d 491 (1983). The second is to remand for a hearing at which the trial court determines whether the challenged information affected its sentencing decision. People v Brown, 104 Mich App 803, 821; 306 NW2d 358 (1981) (opinion of Judge GILLIS), rev'd on other grounds 412 Mich 913; 317 NW2d 189 (1982). The third is to remand for resentencing. People v Edenburn, 133 Mich App 255, 258; 349 NW2d 151 (1983).

We agree with the second approach and remand for a hearing within twenty days at which the trial court shall determine whether the challenged information affected the court's imposition of sentence. If so, defendant's sentence is vacated and defendant shall be resentenced. If not, then defendant's sentence stands.

Affirmed in part and remanded in part.

BEASLEY, P.J. (dissenting).

I respectfully dissent.

I believe defendant's alleged basis for withdrawal of his guilty plea is entirely frivolous. In addition, defendant complains of the presentence report as follows:

Mr. Tew: Okay, I also find that the presentence report isn't exactly factual and part is missing.

Mr. Court: How isn't it factual?

Mr. Tew: On the part of Mr. Golden's — what Mr. Golden had to say. I've only seen the man two times and I never discussed anything.

The Court: Well, how isn't it factual, what is not true?

Mr. Tew: Okay, there's statements in there saying that I had blamed this on somebody else set me up doing it and then I never recall saying anything like that.

The Court: You don't recall saying anything like that, is that what you're saying?

Mr. Tew: No, I never said anything like that.

The trial court acknowledged defendant's claim. Under the circumstances of this case, the response was sufficient.

I would affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.