People v. Major

• Decision Date: 06 May 1981
• Docket Number: Docket No. 48414
• Citation: 106 Mich.App. 226,307 N.W.2d 451
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Eugene MAJOR, Defendant-Appellant. 106 Mich.App. 226, 307 N.W.2d 451
• Court: Court of Appeal of Michigan — District of US

Page 451

307 N.W.2d 451

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Eugene MAJOR, Defendant-Appellant.

Docket No. 48414.

106 Mich.App. 226, 307 N.W.2d 451

Court of Appeals of Michigan.

May 6, 1981.

Released for Publication July 13, 1981.

[106 MICHAPP 228] James R. Neuhard, State Appellate Defender, Derrick A. Carter, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Chief Appellate Atty., Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and KELLY and CYNAR, JJ.

PER CURIAM.

On May 31, 1979, defendant pled guilty to one count of issuing a no-account check, M.C.L. § 750.131a; M.S.A. § 28.326(1), and one count of attempted false pretenses over $100, M.C.L. §§ 750.92, 750.218; M.S.A. §§ 28.287, 28.415. On July 23, 1979, defendant was sentenced to 40 months to five years imprisonment on the attempted false pretenses charge and to 16 months to two years on the no-account check charge. It is from these sentences that defendant now appeals.

Defendant first argues that he is entitled to resentencing because the trial judge failed to respond to defendant's contention that his presentence report contained inaccurate information. We agree.

The record reveals that both defendant and his counsel argued that the presentence report was incorrect because it included as a prior felony conviction in defendant's record a case that had, in fact, been nolle prossed. Defendant also pointed out to the court that the presentence report contained erroneous and misleading police reports. The trial judge failed to respond to these alleged inaccuracies. Therefore, it is unclear whether the [106 MICHAPP 229] court relied on inaccurate information in pronouncing sentence.

This Court has consistently held that a sentencing court has a duty to respond to a defendant's allegation of inaccuracy in the information provided to the judge at sentencing and that the judge's failure to do so is error mandating resentencing. People v. McIntosh, 62 Mich.App. 422, 234 N.W.2d 157 (1975), modified 400 Mich. 1 (1977), People v. Horace Williams, 77 Mich.App. 402, 405-406, 409-410, 258 N.W.2d 737 (1977), modified 402 Mich. 950 (1978), People v. Westerfield, 71 Mich.App. 618, 626, 248 N.W.2d 641 (1976).

People v. McIntosh, supra, interpreted GCR 1963, 785.12 to mean that the trial court must exercise its discretion in determining whether allegations of error are correct, and may consider statements of the defendant:

"GCR 1963, 785.12, leaves to the trial judge not only discretion to consider and weigh the contents of the presentence report, objective and subjective, but also discretion as to the means of implementing the due process duty of ascertaining, when the objection is raised, that the defendant is not prejudiced in sentencing by false information. United States v. Sanders, 438 F.2d 344 (CA 5, 1971). While not compelled to hold an evidentiary hearing, in the exercise of his discretion, he may do so. He may accept unsworn statements of the defendant. He may ascertain that the disputed matter is not relevant to his decision or is of little weight, or could be safely disregarded without regard to its accuracy in light of other facts. There are many ways, in the exercise of his discretion, that he may meet the problem." People v. McIntosh, supra, 448, 234 N.W.2d 157.

In McIntosh, as in the instant case, the sentencing court simply failed to respond to defendant's allegation that his presentence report contained [106 MICHAPP 230] inaccurate information. In remanding the case for resentencing, the McIntosh Court stated:

"Here, unfortunately, the trial judge simply did not respond to the defense claim in any way and thus abdicated his discretion. The failure to exercise discretion, when called upon to do so, is error. People v. Lessard, 22 Mich.App. 342, 177 N.W.2d 208 (1970), United States v. Espinoza, 481 F.2d 553 (CA 5, 1973). We remand for resentence accordingly." Id. (Emphasis added.)

See also People v. Perez, 94 Mich.App. 759, 760-761, 289 N.W.2d 857 (1980), People v. Williams, supra, 409, 258 N.W.2d 737.

Under the aforecited authority, the trial judge erred in failing at least to acknowledge the allegations of defendant. Defendant's failure to file supporting affidavits did not relieve the court of its duty to exercise its discretion. As noted in McIntosh, supra, at 448, 234 N.W.2d 157, the judge may rely upon unsworn statements in making his determination. Accordingly, the trial court's failure to exercise its discretion requires that this case be remanded for resentencing.

As his second issue on appeal, defendant argues that he should have received credit for time served in the Oakland County jail on an unrelated charge from the date such incarceration began or from the date that St. Clair County requested that a hold be placed on him.

The check offenses to which defendant pled guilty and which are the basis for this appeal occurred in St. Clair County on April 5, 1978, and May 24, 1978. On January 19, 1979, defendant was arrested on unrelated check offenses in Oakland County and was held in jail there. Defendant pled guilty to the Oakland County offense April 6, 1979. [106 MICHAPP 231] On that same date, defendant was transferred to the St. Clair County jail where he was held until he was sentenced for the instant offenses of July 23, 1979. The sentencing judge granted defendant credit for time served from the date that St. Clair County placed a hold on him in the Oakland County jail, April 5, 1979. On July 3, 1979, the judge, for a reason not discernible from the record, amended the credit time back to March 15, 1979.

The proper date for determining credit for time served under M.C.L. § 769.11b; M.S.A. § 28.1083(2) is the date on which the hold was placed. See People v. Face, 88 Mich.App. 435, 440-441, 276 N.W.2d 916 (1979). In effect, this Court, in Face, held that an accused is considered to be in custody as soon as the arresting authorities have him incarcerated, either directly or indirectly. Although Face dealt with indirect detention prior to arrest, this principle should be extended to include indirect detentions occurring after the accused has...