People v. Krist , 107 Mich. App. 701 ( 1981 )

107 Mich. App. 701 (1981) 309 N.W.2d 708

PEOPLE
v.
KRIST.

Docket No. 52549.

Michigan Court of Appeals.

Decided July 8, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert H. Cleland, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

Peter Jon Van Hoek, Assistant State Appellate Defender, for defendant on appeal.

Before: R.M. MAHER, P.J., and R.B. BURNS and M.J. KELLY, JJ.

M.J. KELLY, J.

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. On appeal, on November 6, 1979, this Court in People v Krist, 93 Mich. App. 425, 433; 287 NW2d 251 (1979), lv den 407 Mich. 963 (1980), upheld one of the armed robbery convictions and reduced the other to unarmed robbery, MCL 750.530; MSA 28.798, and remanded the case 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 resentenced 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 resentencing 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 in the presentence report to a prior felony allegedly committed in Florida. It was claimed by defendant that the case had actually resulted in an entry upon the record of nolle prosequi. The sentencing court failed to respond to this allegation and a second claim that the report contained inaccurate police reports. The prior felony would be particularly damaging since, without it, the defendant's present convictions would have been his first felonies.

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.^[1] The instant case, unlike Major, does not present a situation in which the claimed inaccuracy, if not resolved, would have a bearing on the defendant's ultimate sentence. In light of the miniscule potential error which could be incurred by the claimed inaccuracy herein, we would hold that the error, if any, was merely harmless. See also People v Perez, 103 Mich. App. 636, 638-639; 303 NW2d 49 (1981), remanding for resentencing the defendant's plea-based conviction, where the disputed report recounted facts constituting the principle offense which differed from those alleged by the prosecutor or defendant. The Perez panel based its remand in part upon its view that "the manner and circumstances under which an offense is committed well may influence the degree of the sentence imposed". Id., 638. We do not view the purported inaccuracy in this case to be determinative of the sentence as in Perez.^[2] See also People v Horace Williams, 77 Mich. App. 402, 405-406; 258 NW2d 737 (1977), remanded 402 Mich. 950j (1978).

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 expressly so state, there is no reasonable conclusion to be drawn other than that he accepted the correction proffered by counsel. The fact that defendant received the maximum sentence allowable is completely supported by the record and the circumstances mandating the reduction of both maximum and minimum sentences pursuant to the prior appellate decisions. To hold otherwise would require that any trivial clarification or correction made on a presentence report would mandate elaborate verbal descriptions of obvious mental processes even though the record indicates unanimous implied consent to the correction. This elevates form over substance and creates an unnecessary burden to an already overformalized record-making procedure. To express the proposition is enough to expose its absurdity. Finally, even if error occurred when the sentencing court failed to respond to the proposed correction, the matter could not have affected the eventual sentence.

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 resentencing. People v Jankowski, 408 Mich. 79; 289 NW2d 674 (1980).

Affirmed.

R.B. BURNS, J., concurred.

R.M. MAHER, P.J. (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 respond in some manner. The mode of response is left to the exercise of the trial court's discretion. That response may be as simple as an announcement that the disputed facts will not be considered when passing sentence or as complicated as an evidentiary hearing. This Court consistently has held that when the trial court fails to respond it has failed to recognize and exercise its discretion and resentencing is required. People v Major, 106 Mich. App. 226; 307 NW2d 451 (1981), People v Baker, 103 Mich. App. 704; 304 NW2d 262 (1981), People v Perez, 103 Mich. App. 636; 303 NW2d 49 (1981), People v Perez, 94 Mich. App. 759; 289 NW2d 857 (1980), People v Horace Williams, 77 Mich. App. 402, 405-406, 409-410; 258 NW2d 737 (1977),^[1]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).

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, apparently on the basis that the claimed inaccuracies in those cases were more severe than in the instant case. This Court is ill-suited for such review. The majority does not suggest on what basis this Court should hold one claim of inaccuracy serious and another merely incidental. Furthermore, I have no doubt that what will appear to be a serious inaccuracy to one judge may appear trifling to the next. Add to this the fact that it doesn't really matter in the end whether this Court feels the inaccuracy is serious or not since it is the trial court which determines the sentence, and the result can be seen to set an unwise precedent. No matter how serious the claimed inaccuracy might be said to be, once the claim has been made the trial court's discretion is engaged.

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 failed to recognize and exercise its discretion, and the case should be remanded for resentencing and for a proper exercise of discretion. The problem with the majority's approach is that it requires this Court to attempt the manifestly impossible — to infer from a silent record the proper exercise of the trial court's sentencing discretion. We cannot place ourselves inside the head of the trial judge, and we should not attempt to do so.

I would remand for resentencing.

NOTES

[1] 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?"

[2] 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.

[1] 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).