People v. Landis , 197 Mich. App. 217 ( 1992 )

197 Mich. App. 217 (1992) 494 N.W.2d 865

PEOPLE
v.
LANDIS

Docket Nos. 146283, 149294.

Michigan Court of Appeals.

Decided December 7, 1992, at 9:20 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael R. Smith, Prosecuting Attorney, and Carole F. Barnett, Assistant Attorney General, for the people.

State Appellate Defender (by Anne Yantus), for the defendant on appeal.

Before: MICHAEL J. KELLY, P.J., and SHEPHERD and FITZGERALD, JJ.

MICHAEL J. KELLY, P.J.

In Docket No. 146283, pursuant to a plea agreement, defendant Eric S. Landis pleaded guilty of three counts of forgery, MCL 750.248; MSA 28.445. Defendant was sentenced to four to fourteen years' imprisonment. In Docket No. 149294, pursuant to a plea agreement, defendant pleaded guilty of two counts of forgery, MCL 750.248; MSA 28.445. He was sentenced to five to fourteen years' imprisonment, to be served consecutively to the four-to-fourteen year sentence he received in Docket No. 146283. Defendant appeals as of right. These matters have been consolidated for appellate review.

Defendant first argues that the consecutive nature of the sentences renders them violative of the principle of proportionality set forth in People v Milbourn, 435 Mich. 630; 461 NW2d 1 (1990). A panel of this Court previously rejected this argument. People v Warner, 190 Mich. App. 734, 735-736; 476 NW2d 660 (1991). The Warner Court held that in a case such as this, each sentence must be viewed individually to determine whether it violates the principle of proportionality. Although we disagree with the holding in Warner and its application to the facts of this case, we are required by Administrative Order Nos. 1990-6 and 1991-11, 436 Mich. lxxxiv and 439 Mich. cxliv, to follow Warner. Because each of defendant's sentences is within the sentencing guidelines range, they are presumptively neither excessively severe nor unfairly disparate. People v Broden, 428 Mich. 343, 354-355; 408 NW2d 789 (1987). Under the holding in Warner, neither sentence violates the principle of proportionality. Milbourn, supra.

Defendant next argues that he is entitled to resentencing in Docket No. 146283 because the trial court failed to resolve a claimed inaccuracy in the presentence report. We agree with defendant that the trial court failed to resolve his challenge of the presentence report's conclusion that defendant was not remorseful. Therefore, we remand this matter to the trial court for further proceedings. People v Thompson, 189 Mich. App. 85, 88; 472 NW2d 11 (1991). On remand, "the court need only clarify whether the disputed matter played a role in its sentencing decision. If the court determines that it did, defendant shall be resentenced and the court shall resolve this challenge pursuant to MCR 6.425(D)(3). If it is determined that the disputed matter played no part in the sentencing decision, defendant's sentence is affirmed and the trial court need only strike the disputed matter from the presentence report." Thompson, supra at 88.

The sentence in Docket No. 149294 is affirmed; Docket No. 146283 is remanded for proceedings consistent with this opinion.