People v. Strickland , 181 Mich. App. 344 ( 1989 )

181 Mich. App. 344 (1989) 448 N.W.2d 848

PEOPLE
v.
STRICKLAND

Docket No. 110759.

Michigan Court of Appeals.

Decided December 4, 1989.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Christopher S. Boyd, Prosecuting Attorney, and Janet M. Boes, Assistant Prosecuting Attorney, for the people.

Thomas J. Bleau, for defendant on appeal.

Before: MICHAEL J. KELLY, P.J., and SAWYER and CAVANAGH, JJ.

MICHAEL J. KELLY, P.J.

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 1/2 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 reference to be irrelevant. The guidelines do not apply to habitual offender sentencing. Michigan Sentencing Guidelines Manual, 2d ed (1988), p 1; People v Thornsbury, 148 Mich. App. 92, 98; 384 NW2d 88 (1985). In an habitual offender sentencing, the trial court must fill out a SIR on the underlying offense. This is done to aid in the development of guidelines for habitual offender sentencings, rather than to guide the sentencing court in determining the habitual offender's sentence. Sentencing Guidelines Manual, supra, p 1. Since scoring the SIR was merely an administrative function which should not have had any effect on defendant's habitual offender sentence, the circuit court's failure to address defendant's challenges to the SIR scoring is harmless error. Resentencing is not required.

Affirmed.

CAVANAGH, J., concurred.

SAWYER, J. (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.

In any event, it is necessary for the trial court to exercise its discretion in determining whether additional proofs are necessary and, with or without additional proofs, resolve the defendant's objection to the scoring. See People v Walker, 428 Mich. 261, 268; 407 NW2d 367 (1987). In the case at bar, the trial court failed to exercise any discretion as it failed to respond to defendant's objections to the scoring of the SIR, thus making no determination whether additional proofs were necessary or whether defendant's objections to the proposed scoring were valid.

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.