People v. Moore, Docket No. 78-4651

• Citation: 284 N.W.2d 483,91 Mich.App. 319
• Decision Date: 10 July 1979
• Docket Number: Docket No. 78-4651
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence MOORE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 483

284 N.W.2d 483

91 Mich.App. 319

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence MOORE, Defendant-Appellant.

Docket No. 78-4651.

Court of Appeals of Michigan.

July 10, 1979.

Released for Publication Oct. 10, 1979.

Jack J. Kraizman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and KAUFMAN and RILEY, JJ.

KAUFMAN, Judge.

We accept the facts as presented by Chief Judge Danhof in his dissent and generally agree with his presentation of the law. Additionally, for the reasons stated in the dissent, we specifically note our disagreement with People v. Allen, 79 Mich.App. 100, 261 N.W.2d 225 (1977). However, under the instant facts, we feel compelled to remand the case for resentencing and direct the trial judge to secure an updated presentence report prior to resentencing. See my dissent in People v. Triplett, 91 Mich.App. 82, 283 N.W.2d 658 (1979).

When the Supreme Court remanded this case for resentencing because defendant was not assisted by counsel at the original sentencing, they meant just that. At the resentencing, defendant was entitled to an updated presentence report and an opportunity for allocution. Those steps were necessary to insure that the trial judge was fully and accurately acquainted with defendant's background. See M.C.L. § 771.14; M.S.A. § 28.1144, People v. Brown, 393 Mich. 174, 224 N.W.2d 38 (1974), People v. Lee, 391 Mich. 618, 634-635, 218 N.W.2d 655 (1974), People v. McFarlin, 389 Mich. 557, 574, 208 N.W.2d 504 (1973).

Defense counsel and defendant presented some evidence of defendant's prison conduct to the resentencing court, but it is not at all clear that the court considered this information in resentencing defendant to the same prison terms he had received more than 10 years before. In light of the court's statement that defendant was being sentenced Nunc pro tunc, it is possible that the judge ignored defendant's prison conduct altogether. An updated presentence report would have assured due consideration of defendant's prison conduct.

Remanded for resentencing.

DANHOF, Chief Judge (dissenting).

The sole question on appeal is whether, upon remand for resentencing, the trial judge erred in failing to consider, as a mitigating circumstance, defendant's prison behavior between the time when defendant's sentence was originally imposed and the date of the resentencing hearing. While I conclude that the judge had a duty to consider this aspect of defendant's background in resentencing him, I believe that the judge did so adequately and, therefore, register my dissent from the majority decision to remand for resentencing.

On June 29, 1967, defendant was convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, following a bench trial. On July 13, 1967, Detroit Recorder's Court Judge Joseph A. Gillis sentenced defendant, who was not assisted by counsel, to two concurrent terms of life imprisonment. This Court affirmed defendant's conviction on September 24, 1968, and also denied his later petition to set aside his sentence in an order issued February 9, 1977. The Michigan Supreme Court thereafter reviewed defendant's In pro. per. complaint for superintending control, treating it as an application for leave to appeal this Court's order of February 9, 1977. On November 23, 1977, the Supreme Court (402 Mich. 805 (1972)), remanded for resentencing on the grounds that defendant had not been assisted by counsel at his prior sentencing hearing nor had he waived his right to counsel. People v. Dye, 6 Mich.App. 217, 148 N.W.2d 501 (1967).

On January 13, 1978, defendant, assisted by counsel, appeared for resentencing before Judge Gillis. The judge inquired of defense counsel whether he had read the presentence report, to which counsel responded affirmatively and asserted that he believed the report to be factually correct. Counsel then added that defendant had already been incarcerated in Jackson State Prison for more than ten years as a result of his earlier, now invalidated sentence, and that counsel wished to briefly review, for the judge's benefit, some of the reports counsel had received from prison supervisory personnel regarding defendant's progress toward rehabilitation. According to the reports, defendant had positively adjusted to the institutional setting, had acquired several vocational skills, had gotten married in 1977, had displayed a good attitude toward his work, and had generally made marked progress toward social rehabilitation. Counsel asked the judge to consider this evidence in imposing a lower sentence on defendant. Defendant also added that he had matured over the ten years of his imprisonment and that he felt he could now become a good citizen. The judge responded as follows:

"THE COURT: I'm quite sure an attorney was present before. The Corrections Commission has authority to release him this afternoon if they wish, and they know they have. They have lived with Mr. Moore for the past ten years, and apparently they have not exercised the discretion which the legislature and the Court gave them.

"The sentence of the Court on Count I will be life, on Count II life, and this will be nunc pro tunc as of July 13, 1967, the original sentence date. He will be given credit for 94 days served."

Defendant on appeal argues that the court committed reversible error by ignoring defendant's progress toward rehabilitation as a circumstance mitigating the need for reimposition of defendant's original sentence and that, rather than leaving full responsibility for determining defendant's date of prison release to the Department of Corrections, the judge had a duty to consider defendant's individual circumstances as of the date of resentencing.

I recognize and indorse the modern penal concept that sentences should be individualized to fit the particular circumstances of the case and of the offender, thereby striking a balance between society's need for protection, along with deterrence of criminal behavior, and its interest in rehabilitating the individual defendant. People v. McFarlin, 389 Mich. 557, 574-575, 208 N.W.2d 504 (1973). In order to properly carry out their sentencing function, trial judges must be fully and accurately acquainted with the backgrounds of the offenders. M.C.L. § 771.14; M.S.A. § 28.1144, People v. Brown, 393 Mich. 174, 224 N.W.2d 38 (1974), People v. Lee, 391 Mich. 618, 634-635, 218 N.W.2d 655 (1974).

In resentencing defendant, the judge in the instant case apparently relied on the presentence report prepared prior to defendant's original sentencing hearing ten years before. But notwithstanding the judge's failure to request an updated report, he did permit defense counsel and defendant to present additional information regarding defendant's prison behavior during the intervening years. I find no indication that the judge was incorrectly or inadequately apprised of defendant's background, or that he drew false inferences from the information afforded him. ¹

Beyond insuring the accuracy of the presentence information relied on by the judge and his compliance with statutory limitations, our appellate review of the judge's use of sentencing discretion is very limited. M.C.L. § 769.1; M.S.A. § 28.1072, People v. Burton, 396 Mich. 238, 243, 240 N.W.2d 239 (1976). This Court is not free to substitute its judgment as to what constitutes a proper sentence for a particular defendant. People v. Almond, 67 Mich.App. 713, 719, 242 N.W.2d 498 (1976), People v. Ross, 73 Mich.App. 287, 292, 251 N.W.2d 268 (1977). Contrary to defendant's contention, I do not interpret the judge's above-quoted remarks as necessarily implying a refusal to even consider defendant's prison behavior as a factor in resentencing. The judge did allow defense counsel to update defendant's presentence report. Having listened to the comments, the judge had discretion to assign great, little or no weight to defendant's allegedly good prison behavior in resentencing him. I am not willing to, and...