People v. Fleming
| Decision Date | 19 June 1985 |
| Docket Number | 78345,Docket Nos. 78006 |
| Citation | 369 N.W.2d 499,142 Mich.App. 119 |
| Parties | The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Franklin Delano FLEMING, Defendant-Appellant. The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Lee CALVIN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Richard H. Browne, Asst. Pros. Atty., for the People.
Newblatt & Dechter by Flora J. Newblatt, Clarkston, for defendant Fleming.
O'Neill, Shannon & Mills by Patricia F. Donaldson, Birmingham, for defendant Calvin.
Before ALLEN, P.J., and J.H. GILLIS and GIOVAN, * JJ.
On March 14, 1984, both defendants Calvin and Fleming pled guilty to four counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and two counts of second-degree criminal sexual conduct (CSC), M.C.L. Sec. 750.520c; M.S.A. Sec. 28.788(3). The defendants' pleas were based on an agreement to dismiss four counts of kidnapping and other charges of first degree criminal sexual conduct. An additional charge of assault with intent to do great bodily harm less than murder lodged against defendant Fleming was also dismissed. On March 21, 1984, defendants were sentenced to terms of from 72 to 180 months (6 to 15 years) on the CSC convictions and from 17 to 40 years on the armed robbery convictions. Each appeals as of right. The appeals were consolidated by order of this Court.
Defendants raise five common issues concerning their sentences and the procedure by which they were imposed. Defendant Calvin additionally argues that he was denied the effective assistance of counsel by his attorney's failure to object to the sentencing procedure. We first address those issues common to both defendants.
At the time these sentences were imposed, the trial court was required to state its reasons for imposing sentence on the record and, in the event of a departure from the recommended minimum range contained in the Sentencing Guidelines Manual, was required to state its reasons for departure on the record and on the Sentencing Information Report. People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983); Supreme Court Administrative Order No. 1984-1, 418 Mich. lxxx. The transcript of the sentencing proceeding reveals that the trial court made a brief reference to each of the defendant's prior records before imposing sentence. No other explanation or reason for the sentences was given. However, the court files indicate that on March 22, 1984, the day after imposition of sentence, copies of the sentencing information reports prepared for both offenses, along with a statement of reasons for deviating from the guidelines for the offense of armed robbery, were mailed to each defense attorney. There is no indication that the defendants were individually informed by the court of the reasons for departure.
While the minimum sentences imposed for the criminal sexual conduct convictions appear to be within the recommended guideline range, the 17-year minimums for the armed robbery convictions do not. Utilization of the guideline factors results in a minimum sentence range of from five to eight years, much less than the minimum term actually imposed.
Defendants first claim that the trial court's failure to specify on the record its reasons for departure from the guidelines requires reversal. This issue is based, in part, upon defendants' claims that the trial court considered inaccurate information in imposing sentence and that, by failing to state the reasons on the record, they were deprived of the opportunity to rectify the error.
The Sentencing Guidelines Manual, Departure Policy, Ch 27, p 3 provides in part: "Departure reasons must be placed on the record and on the Sentencing Information Report (SIR)." (Emphasis added.) Administrative Order 1984-1 also states that "[t]he judge may depart from the recommended minimum range for the reasons, and in the manner, prescribed by the guidelines". (Emphasis added.) We find it clear that the judge must state on the record reasons justifying the departure from the guideline range. To this extent, we disagree with the panel in People v. Good, 141 Mich.App. 351, 367 N.W.2d 863 (1985), that it is sufficient for the sentencing judge to state the reasons for departure on the SIR and to file a copy of the SIR with the court record. Such action, which places the reasons in the court file record, fails to satisfy the requirement that the reasons be on the record.
We find support for this conclusion in People v. Coles, supra, 417 Mich. pp. 549-550, 339 N.W.2d 440, where the Court, quoting from United States v. Brown, 479 F.2d 1170 (CA2, 1973), first set forth the requirement for articulation of reasons in support of the sentence imposed. Two of the reasons mentioned by the Brown Court are especially relevant to the present situation:
We can see no reason why those justifications should not apply to the requirement set forth in the guidelines concerning the judge's statement of reasons for departure from the guidelines. Under Coles the trial judge is required to indicate the criteria considered in imposing sentence and the reasons which support the court's decision regarding the nature and length of punishment. Coles, supra, p. 550, 339 N.W.2d 440. To some extent, it is probable that those reasons will be of a more general character than the reasons which justify a departure from the recommended minimum sentence range under the guidelines. Although departures are expected and encouraged, the justifications for the departure should be specific. Sentencing Guidelines Manual, Departure Policy, ch. 27.
One of the purposes of both the guidelines and the Coles articulation requirement is to facilitate appellate review of sentences. In order to achieve this goal, both statements should be made at the time of sentencing. Then, if there are any factual inaccuracies, an immediate response can be made. While a single statement of reasons in support of a particular sentence may satisfy both Coles and the guidelines, that situation is not presented in this case. Here, the defendants' claim of error is not simply one of a technical omission but includes the claim that the judge based his departure from the guidelines on erroneous and inaccurate information. Because the judge's statement supporting the departure from the guidelines was not made at sentencing, but was mailed some time later, neither defendants nor their counsel had an opportunity to point out or to explain the errors.
We find two of defendants' claimed inaccuracies warrant discussion. Defendants argue that the judge assumed their guilt of the charged offense of first-degree criminal sexual conduct and based his erroneous assumption on the fact that defendants "admitted penetration". While the investigator's description of the offense set forth in the presentence report does indicate that the victims claimed penetration by the defendants, those statements cannot be used as admissions of the defendants. A defendant is entitled to be sentenced on the basis of accurate information. People v. Malkowski, 385 Mich. 244, 188 N.W.2d 559 (1971). To that end, when the defendant makes a claim at sentencing that the information provided to the judge, usually through the means of the presentence report, is inaccurate, the judge has the duty to respond to that claim. See, People v. Edenburn, 133 Mich.App. 255, 349 N.W.2d 151 (1983), and cases cited therein.
In the present case, because the trial court did not articulate its reasons for departing from the guidelines on the record, the defendants were prevented from clarifying, explaining, or denying the inaccurate statement. We do not hold that the defendants have the right to argue that the reasons, if accurate, are not sufficient to...
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