People v. Strunk

• Decision Date: 23 November 1988
• Docket Number: Docket No. 104609
• Citation: 431 N.W.2d 223,172 Mich.App. 208
• Court: Court of Appeal of Michigan — District of US
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Arthur STRUNK, Defendant-Appellant.

Page 223

431 N.W.2d 223

172 Mich.App. 208

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Arthur STRUNK, Defendant-Appellant.

Docket No. 104609.

Court of Appeals of Michigan.

Submitted June 7, 1988.

Decided Aug. 30, 1988.

Released for Publication Nov. 23, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Carl J. Marlinga, Pros. Atty., Robert John Berlin, Chief Appellate Lawyer, and James J. Langtry, Asst. Pros. Atty., for the people.

Richard A. Meier, Mt. Clemens, for defendant-appellant on appeal.

Before KELLY, P.J., and GRIBBS and SIMON, ^* JJ.

PER CURIAM.

Defendant pled guilty to possession of cocaine less than fifty grams with intent to deliver, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). Before accepting the plea, the trial court informed defendant that it would stay within the guidelines' recommended minimum sentencing range of thirty to forty-two months. Defendant was then sentenced to from forty-two months to twenty years imprisonment, and his subsequent motion for resentencing was denied. Defendant appeals as of right, raising procedural issues in support of his claim that he is entitled to resentencing. We affirm.

Defendant claims that the procedure by which the probation officer, rather than the trial court, actually scored the sentencing information report (SIR) violated Administrative Order No. 1984-1, 418 Mich. 1xxx, ¹ and the Administrative Procedures Act (APA), M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. Having failed to bring this issue to the attention of the trial court, this issue is not properly preserved for appeal. People v. Kisielewicz, 156 Mich.App. 724, 402 N.W.2d 497 (1986).

In any event, the sentencing guidelines are merely a tool utilized by the sentencing judge in the difficult task of imposing sentence. People v. Terry James, 142 Mich.App. 19, 21, 368 N.W.2d 892 (1985). The guidelines do not create substantive rights, People v. Porter, 169 Mich.App. 190, 425 N.W.2d 514 (1988), although a defendant is entitled to raise challenges to the accuracy of the SIR. People v. Walker, 428 Mich. 261, 266, 407 N.W.2d 367 (1987). Sentencing remains a discretionary task, and the appropriate approach is to individualize the sentence to the offender. People v. Adams, 430 Mich. 679, 425 N.W.2d 437 (1988). The manner by which the trial court here reviewed the SIR, allowed for objections to its accuracy and completed the SIR by recording the sentence imposed was sufficient compliance with Administrative Order No. 1984-1. Further, the probation officer's scoring of the SIR did not violate the APA since the probation officer has a specific duty to make a sentencing recommendation. M.C.L. Sec. 771.14(2)(d); M.S.A. Sec. 28.1144(2)(d); 1979 AC, R 791.9910(1)(g). It would not be useful to the trial court to consider a sentencing recommendation without information on how the probation officer arrived at the recommended sentence, and it would not be reasonable for the probation officer to make a sentencing recommendation without considering the guidelines. The probation officer's scoring of the SIR is, thus, inherent in his duty to make a specific recommended disposition.

The trial court, in addition to considering the guidelines, articulated that it was individualizing the sentence to the offense and the defendant, that it had gathered and considered information on defendant's background, and that it had considered the criteria for sentencing, i.e., defendant's potential for rehabilitation and the protection of society. The issues raised by defendant do not demonstrate an abuse of discretion and, having considered the entire record, we can find no abuse. Thus, defendant is not entitled to resentencing.

Defendant also claims that he is entitled to resentencing because he was not present at the hearing on his motion for resentencing and did not have an opportunity to allocute at that hearing. Although the scoring of the SIR was modified at the hearing, it did not change the guidelines' recommended range and, contrary to defendant's claim on appeal, defendant was not resentenced. Instead, the trial court noted that the range was exactly the same as that required for the sentence imposed, then denied the motion for resentencing.

In order to justify resentencing, there must be a showing that the...