People v. Hernandez

• Decision Date: 13 July 1993
• Docket Number: No. 5,O,Docket No. 92923,5
• Citation: 443 Mich. 1,503 N.W.2d 629
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mario HERNANDEZ, Defendant-Appellee. Calenderctober Term 1992.
• Court: Michigan Supreme Court

Page 629

503 N.W.2d 629

443 Mich. 1

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Mario HERNANDEZ, Defendant-Appellee.

Docket No. 92923.

Calender No. 5, October Term 1992.

Supreme Court of Michigan.

Argued Oct. 13, 1992.

Decided July 13, 1993.

William A. Forsyth, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Gregory T. Boer, Asst. Pros. Atty., Grand Rapids, for plaintiff-appellant.

State Appellate Defender Office by: Debra Gutierrez-McGuire, Asst. Defender, Detroit, for defendant-appellee.

Joan Ellerbusch Morgan, Dawn Van Hoek, Detroit, for amicus curiae.

OPINION

MICHAEL F. CAVANAGH, Chief Justice.

We decide today whether the Court of Appeals was compelled to remand this case to the trial court to allow the defendant to file a motion for resentencing. The defendant first alleged a sentencing guidelines scoring error before the Court of Appeals by filing a motion to remand pursuant to MCR 7.211(C)(1)(a). ¹ We hold that the Court of Appeals is not compelled to grant every motion to remand. The remand procedure is available only when the issue meets the requirements set forth in MCR 7.211(C). If there is evidence supporting the judge's initial scoring of a sentencing guidelines variable, the motion to remand may be denied. Because there is sufficient evidence in this case, we reverse the Court of Appeals decision to grant defendant's motion to remand.

I

On February 27, 1991, defendant pleaded guilty of assault with intent to commit murder. ² The incident leading to the charge occurred on June 30, 1990. The defendant was at a party, during which several guests became involved in a dispute with the neighbors. The victim lived near the house where the party took place, but did not return home until later in the evening. When the victim returned home, the individuals at the party began hollering racial slurs. The same individuals then began throwing rocks and beer bottles at the victim's window. The victim grabbed a stick, went out to the sidewalk, and began yelling at the individuals. Defendant then attacked the victim with a baseball bat, knocking him to the ground. Defendant continued to hit the victim with the bat. One witness testified that the defendant continued to hit the victim until the bat broke. At that time, a witness pulled defendant off the victim.

On March 25, 1991, nine days before sentencing, Kent Circuit Court Judge Dennis Kolenda sent defendant's attorney a presentence report and a letter informing the attorney:

"Any additions or corrections which you would like to make, including any challenges to the Sentencing Guidelines' scoring, should be submitted in writing by the close of business on Friday, March 29, 1991."

Judge Kolenda also provided an opportunity to meet with the parties to discuss the case before the sentence proceeding. ³

Defendant was sentenced on April 3, 1991, pursuant to a plea agreement, to six to twenty years, a sentence within the sentencing guidelines range for assault with intent to do great bodily harm less than murder. Defendant received a prior record score of twenty-five and an offense score of sixty-five, which placed him in the C-IV sector of the grid. The corresponding guideline recommended a minimum sentence of three years to six years, eight months.

At sentencing, defense counsel agreed that the presentence report was "basically a fair and accurate report." Judge Kolenda then explained,

"Mr. Hernandez, I have come to the unfortunate conclusion, and I mean genuinely I think it's unfortunate that for reasons that I don't understand and you probably don't understand, that you are a dangerous person at the moment and from whom I've got to protect society. You were involved in a very serious--and I think vicious is the right word--stabbing of a juvenile, and in this particular case involved a repeated senseless beating....

"The Prosecutor has recommended that you be sentenced under guidelines for an offense less serious than you committed and less serious than you plead guilty to. The only way I can reject that recommendation is to set aside everything and have a trial, which I don't think would be in the interest of the parties involved."

Defendant did not raise any objections before or during the sentencing proceeding.

Following sentencing, defendant received notice of his right to timely appeal and to request appointment of an appellate attorney within forty-two days. Defendant submitted his request for appointment of an attorney on April 10, 1991. Judge Kolenda entered a claim of appeal and order appointing an attorney on May 17, 1991. The Kent Circuit Court received the case transcript on July 25, 1991. The notice of filing a transcript on appeal was received on September 17, 1991.

The State Appellate Defender Office represented defendant during the appeal process. On September 25, 1991, defendant filed a motion in the Court of Appeals to remand the case to the circuit court to allow him to file a motion for resentencing. Defendant alleged error in the presentence scoring of fifty points for offense variable 2, which addresses "Physical Attack and/or Injury." ⁴ Defendant argued that the score of fifty points for "excessive brutality" is incorrect and that the proper score is twenty-five points because the victim only suffered bodily injury. If defendant received twenty-five points, his sentence range would have been two to five years under the C-III section of the grid.

The Court of Appeals remanded the case "only because we are compelled to do so pursuant to [People v.] Walker, [428 Mich. 261; 407 N.W.2d 367 (1987) ]." Unpublished order of the Court of Appeals, decided November 21, 1991 (Docket No. 140896). This Court granted the prosecutor's motion for leave to appeal, limited to the issue whether this Court should reconsider its decision in Walker.

II

In Walker, this Court explained that a defendant must challenge the sentencing guidelines scoring in the trial court before raising the issue on appeal. The methods by which the issue may be raised in the trial court are

"bring[ing] it to the attention of the trial court at sentencing, by a properly filed motion within the time period for filing a motion for a new trial, or by a timely filed motion for remand in the Court of Appeals. MCR 7.211(C)(1)." Id. at 262, 407 N.W.2d 367.

This case involves MCR 7.211(C)(1), which was promulgated before the Walker decision.

A

The need to develop a formal remand procedure began to crystallize when this Court decided People v. Moore, 391 Mich. 426, 440, 216 N.W.2d 770 (1974), People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973), and People v. Robinson, 390 Mich. 629, 634, 213 N.W.2d 106 (1973).

In Moore, the defendant filed a postsentence challenge, claiming that the judge considered an invalid conviction in determining his sentence. The defendant failed to object at sentencing and did not file a motion in the trial court before pursuing the claim on appeal. Thus, the record was incomplete, which made appellate review impracticable. The prosecutor, however, supplied the necessary information to establish whether the prior convictions were valid. We determined that one conviction was invalid, and we remanded the case for resentencing because the record showed that the trial judge had considered the invalid conviction. Id., 391 Mich. at 440, 216 N.W.2d 770.

Despite the outcome in Moore, we specifically ordered that, in future cases, "post-sentencing Tucker ⁵ claims should be initially decided by the sentencing judge or his successor. [The judge] is in the best position to explore and decide the factual issues and, if necessary, the defendant can then be resentenced." Moore at 440, 216 N.W.2d 770. Moving first in the trial court is important because without a record showing the judge's decision, appellate courts have no basis for reviewing the challenge. See People v. Mattison, 26 Mich.App. 453, 459-461, 182 N.W.2d 604 (1970). When a defendant's claim "depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial...." Ginther, 390 Mich. at 443, 212 N.W.2d 922, quoting People v. Jelks, 33 Mich.App. 425, 431, 190 N.W.2d 291 (1971). Without a complete record, the appellate court must engage in fact finding, as occurred in Moore, which is not the court's role.

Robinson established the period for filing postjudgment motions. This Court stated that "after this opinion is published, a defendant desiring reversal or a new trial because of a failure to produce an unindorsed or an indorsed witness shall, before filing his brief on appeal, move the trial court for a new trial." Id., 390 Mich. at 634, 213 N.W.2d 106 (emphasis added). Allowing the defendant to file the postjudgment motion within the period for filing the appellate brief raised problems, however.

Originally, a trial court did not retain jurisdiction after sending the transcripts to the Court of Appeals, which generally occurred before expiration of the period during which the appellant could file his brief. ⁶ The trial court's authority to grant a motion for a new trial terminated upon sending the transcripts to the Court of Appeals. Thus, a corresponding jurisdictional rule was necessary.

Another problem evolved because defendants were required to file postjudgment motions in the trial court within "60 days after the entry of ... the judgment or order appealed from...." GCR 1963, 803.1(b)(1). ⁷ Indigent defendants had to request and await appointment of appellate counsel before filing a postjudgment motion. Often, the "60-day period after sentencing for filing [a postjudgment motion in the trial court] had expired before appellate counsel was appointed." Ginther, 390 Mich. at 444, 212 N.W.2d 922. Thus, the indigent defendant was barred from filing the postjudgment motion because it was deemed waived. ⁸ In Ginther, we remanded the case and agreed with the...