People v. Norman, Docket No. 82574

• Decision Date: 04 April 1986
• Docket Number: Docket No. 82574
• Citation: 384 N.W.2d 147,148 Mich.App. 273
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Freddy Lee NORMAN, Defendant-Appellant. 148 Mich.App. 273, 384 N.W.2d 147
• Court: Court of Appeal of Michigan — District of US

Page 147

384 N.W.2d 147

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Freddy Lee NORMAN, Defendant-Appellant.

Docket No. 82574.

148 Mich.App. 273, 384 N.W.2d 147

Court of Appeals of Michigan.

Submitted June 11, 1985.

Decided Jan. 7, 1986.

Released for Publication April 4, 1986.

[148 MICHAPP 274] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph S. Filip, Pros. Atty., and Brian E. Thiede, Chief Appellate Atty., for people.

State Appellate Defender by P.E. Bennett, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and HOOD and MIES ^*, JJ.

PER CURIAM.

Defendant pled guilty to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The trial judge sentenced defendant to the mandatory two years imprisonment on the felony-firearm count and from 10 to 25 years imprisonment on the armed robbery count. Defendant now appeals as of right.

On appeal, defendant raises two sentencing issues. First, he argues that he is entitled to be resentenced because the presentence investigation report contained inaccurate information. At the time of sentencing, defendant made a specific objection to a statement in the presentence report which indicated that defendant had threatened the victim while they were in jail together. The judge agreed not to consider the information in sentencing, but denied defendant's request to strike the information from the presentence report.

Since the disputed information was not considered in sentencing, defendant is not entitled to resentencing. People v. Doss, 122 Mich.App. 571, 577, 332 N.W.2d 541 (1983), lv. den. 417 Mich. 1100.16 (1983). However, the court's action, which properly protected defendant's right to be sentenced based on accurate information, did not [148 MICHAPP 275] prevent potentially false information from being relayed to the Department of Corrections.

M.C.L. Sec. 771.14(5); M.S.A. Sec. 28.1144(5), which is directed at this problem, states:

"At the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report. The court may order an adjournment to permit the parties to prepare a challenge or a response to a challenge. If the court finds that the challenged information is inaccurate or irrelevant, that finding shall be made a part of the record and the presentence investigation report shall be amended and the inaccurate or irrelevant information shall be stricken accordingly before the report is transmitted to the department of corrections."

The prosecutor argues that the statute is primarily directed at the probation officer and, thus, does not require the sentencing judge to correct or amend a presentence report. We believe that M.C.L. Sec. 771.14(5); M.S.A. Sec. 28.1144(5) contains a clear legislative expression that the sentencing judge shall correct a presentence investigation report. Critical decisions are made by the Department of Corrections regarding a defendant's status based on the information contained in the presentence investigation report. Thus, the presentence investigation report should accurately reflect any determination the sentencing judge has made concerning the accuracy or relevancy of the information contained in the report. It would be impractical to place this duty on anyone but the sentencing judge.

In the present case, the judge decided to disregard the objected-to information. Therefore, in accordance with People v. Taylor, 146 Mich.App. 203, 380 N.W.2d 47 (1985), the appropriate remedy is as follows:

[148 MICHAPP 276] "When a court, for purposes of expediency, efficiency or otherwise, disregards information challenged as inaccurate, the court in effect determines that the information is irrelevant to sentencing. The defendant is therefore entitled to have that information stricken. Accordingly, we remand for the challenged parts of defendant's presentence investigation report to be stricken." Taylor, supra, pp. 205-206, 380 N.W.2d 47.

Consequently, this case is remanded to the trial court for correction of the presentence report and transmittal of a corrected copy to the Department of Corrections.

Defendant also argues that his minimum sentence was improperly calculated under the sentencing...