People v. Perez, Docket No. 43394
| Decision Date | 09 January 1980 |
| Docket Number | Docket No. 43394 |
| Citation | 94 Mich.App. 759,289 N.W.2d 857 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fernando PEREZ, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Jerome E. Burns, Saginaw, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George B. Mullison, Pros. Atty., for plaintiff-appellee.
Before MAHER, P. J., and MacKENZIE and JOHN H. PIERCEY, * JJ.
On October 11, 1978, defendant, Fernando Perez, was convicted, on his plea of guilty, of delivery of heroin, contrary to M.C.L. § 335.341; M.S.A. § 18.1070(41). He was sentenced, on December 26, 1978, to an imprisonment term of three to 20 years, and appeals as of right.
At the sentencing proceeding, defendant's attorney pointed out that a letter sent by the Bay County Prosecutor's office and made part of the courts file stated that defendant had been a major heroin dealer for some time in the city of Saginaw. Defense counsel also stated that the Department of Corrections indicated in the presentence report that defendant had been dealing in heroin for some time in the city of Sagninaw. The allegations were denied by the defendant and challenged by his attorney. The judge, however, never stated what weight he ascribed to the letter from the Bay County Prosecutor's office or to the statements of the Department of Corrections in determining defendant's sentence.
Defendant contends that the trial court abused its discretion in considering the unfounded allegations in sentencing the defendant. Our perusal of the sentencing transcript, however, fails to reveal whether the sentencing judge considered the accusations. In People v. McIntosh, 62 Mich.App. 422, 234 N.W.2d 157 (1975), this Court found error where the trial judge relinquished his discretion by failing to respond in any way to the defendant's contention that the presentence report contained inaccurate or improper information. The Court held that, although the judge was not required to hold an evidentiary hearing, he could utilize other methods to deal with the situation, such as ascertaining that the disputed material is not relevant to his decision. See also People v. Williams, 77 Mich.App. 402, 258 N.W.2d 737 (1977).
In the instant case, the trial judge did not exercise his discretion to deal with defendant's contention that the allegations contained in the letter of the Bay County Prosecutor's office and the...
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