People v. Main

• Decision Date: 25 August 2022
• Docket Number: 355944
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TIFFANY DENISE MAIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
TIFFANY DENISE MAIN, Defendant-Appellant.

No. 355944

Court of Appeals of Michigan

August 25, 2022

UNPUBLISHED

Berrien Circuit Court LC No. 2019-001637-FH

Before: RICK, P.J., and BOONSTRA and O'BRIEN, JJ.

PER CURIAM

Defendant appeals by leave granted^[1] the trial court's order denying her motion to withdraw her plea of guilty to a probation violation. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

In 2019, defendant pleaded guilty to third-degree fleeing and eluding, MCL 257.602a, operating a drug vehicle, MCL 333.7405, and unlawful use of a motor vehicle, MCL 750.414. The trial court imposed sentences of time served for each of her convictions, along with 24 months of probation. In 2020, defendant pleaded guilty to violating the terms of her probation, and the trial court revoked probation and imposed concurrent prison sentences of 23 to 60 months for the fleeing-and-eluding conviction and 16 to 24 months for the drug-vehicle conviction. Defendant filed a motion to withdraw her guilty plea or for resentencing, which the trial court denied. In 2021, defendant filed a delayed application for leave to appeal, which this Court denied.^[2]However, the Supreme Court subsequently remanded the case to this Court "for consideration as on leave granted." People v Main, 508 Mich. 981; 966 N.W.2d 154 (2021).

1

II. PLEA WITHDRAWAL

Defendant argues that she should be permitted to withdraw her plea of guilty to a probation violation because the judge who presided over her probation revocation and sentencing hearing was not the judge who had imposed her original probation sentence. We disagree. Defendant raised this issue in her motion to withdraw her plea. Therefore, the issue is preserved. We review for an abuse of discretion a trial court's decision regarding a motion to withdraw a plea. People v Martinez, 307 Mich.App. 641, 646; 861 N.W.2d 905 (2014). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." Id.

It is undisputed that the judge who initially placed defendant on probation was not the judge who presided over her probation revocation and sentencing hearing. Circuit Judge Sterling R. Schrock accepted defendant's guilty pleas to third-degree fleeing and eluding, operating a drug vehicle, and unlawful use of a motor vehicle, and sentenced her for those convictions. Judge Schrock then presided over several subsequent hearings as a function of defendant's participation in the Swift and Sure Sanctions Probation Program. However, Circuit Judge Charles T. LaSata accepted defendant's guilty plea on the charge of violating her probation and imposed the attendant sentences.

"[A] judge who sentences a defendant to probation retains jurisdiction over the case in all subsequent proceedings, including revocation of probation." People v Manser, 172 Mich.App. 485, 487; 432 N.W.2d 348 (1988). However, when the original judge is "absent or unable to act," a different judge who is "otherwise empowered to rule in the matter" may act in place of the original judge. MCR 2.613(B). In this case, Judge LaSata stated that he was presiding over the probation revocation and sentencing because he had "inherited Judge Schrock's docket" and succeeded him as "the Swift and Sure judge." The record does not indicate whether Judge Schrock was actually "absent or unable to act." We note that many cases have held that MCL 771.4 and MCR 2.613(B) mandate that, unless absent or otherwise unavailable, the judge who sentenced a defendant to probation must conduct any subsequent probation violation hearing. See People v Rose, 117 Mich.App. 530, 536; 324 N.W.2d 25 (1982); People v Clemons, 116 Mich.App. 601, 605; 323 N.W.2d 300 (1981); People v Williamson, 113 Mich.App. 23, 25-26; 317 N.W.2d 271 (1982); People v McDonald, 97 Mich.App. 425, 432; 296 N.W.2d 53 (1980); People v Biondo, 76 Mich.App. 155, 160; 256 N.W.2d 60 (1977). The policy underlying the requirement that the original judge retain jurisdiction over the entirety of probation proceedings is "to insure that revocation will be considered by the judge who is most acquainted with the matter." Clemons, 116 Mich.App. at 604. See also McDonald, 97 Mich.App. at 432. If Judge Schrock was not, in fact, "absent or unable to act," then Judge LaSata's presiding over the probation revocation and sentencing may indeed have been error.^[3]

2

However, "reversal is not automatically required where another judge conducts the revocation hearing." People v McIntosh, 124 Mich.App. 705, 709; 335 N.W.2d 129 (1983).^[4] In McIntosh, this Court affirmed the defendant's probation revocation and sentence as administered by a successor judge-even while recognizing that the better practice is for the original judge to determine whether the defendant's probation should be revoked-because the defendant neither objected in the trial court nor showed on appeal that he was prejudiced. Id. at 710. This Court stated, "We will not permit defendant to wait until after the judge has found a probation violation and then object because the matter had proceeded before the wrong judge." Id. at 709; compare Manser, 172 Mich.App. at 487 (reversing and remanding for proceedings before the original judge when the defendant had timely objected to proceeding before a different judge).

In this case, defendant did not object to Judge LaSata's replacing Judge Schrock at her combined probation revocation and sentencing hearing. Judge LaSata, relying on McIntosh and on defendant's failure to object, then denied defendant's motion to withdraw her plea. Judge LaSata correctly decided the matter in accordance with McIntosh because a defendant will not be found to have been prejudiced by another judge's presiding over probation revocation and sentencing when the defendant did not timely object. McIntosh, 124 Mich.App. at 709-710.

Further, defendant has failed to demonstrate prejudice. She offers no reason to doubt Judge LaSata's assurances from the bench that he was familiar with the facts underlying defendant's probation. Judge LaSata relied on information provided by a probation officer about the history of this case and the events underlying defendant's probation terms. In denying defendant's motion to withdraw her plea, Judge LaSata stated that he was "advised in the premises there were multiple violations in this instance." As is discussed later in this opinion, defendant has not demonstrated any lack of information bearing on Judge LaSata's sentencing decision.

For these reasons, the trial court did not abuse its discretion by denying defendant's motion to withdraw her plea. Martinez, 307 Mich.App. at 646.

III. INACCURATE INFORMATION AT SENTENCING

Defendant also argues that the trial court erred by relying on inaccurate information when sentencing her. We disagree. This Court reviews for clear error the trial court's factual

3

determinations at sentencing. See People v Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013). Generally, "[w]e review a trial court's response to a claim of inaccuracy in the PSIR for an abuse of discretion." People v Lucey, 287 Mich.App. 267, 275; 787 N.W.2d 133 (2010). We also review for an abuse of discretion a trial court's decision on a motion for resentencing. People v Puckett, 178 Mich.App. 224, 227; 443 N.W.2d 470 (1989).

"A defendant is entitled to be sentenced by a trial court on the basis of accurate information." People v Francisco, 474 Mich. 82, 88; 711 N.W.2d 44 (2006). "[A] sentence is invalid if it is based on inaccurate information." People v Miles, 454 Mich. 90, 96; 559 N.W.2d 299 (1997). See also People v Sharp, 192 Mich.App. 501, 509-510; 481 N.W.2d 773 (1992) ("the use of inaccurate information at sentencing may violate defendant's right to due process").

Defendant argues that a probation officer falsely stated at sentencing that defendant had left a substance-abuse treatment program, Kalamazoo Probation Enhancement Program (KPEP), without permission because she was not allowed to smoke at the facility....