People v. Tew

• Decision Date: 15 August 1986
• Docket Number: Docket No. 85594
• Citation: 151 Mich.App. 556,390 N.W.2d 738
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Walter TEW, Defendant-Appellant. 151 Mich.App. 556, 390 N.W.2d 738
• Court: Court of Appeal of Michigan — District of US

Page 738

390 N.W.2d 738

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis Walter TEW, Defendant-Appellant.

Docket No. 85594.

151 Mich.App. 556, 390 N.W.2d 738

Court of Appeals of Michigan.

Submitted Feb. 5, 1986.

Decided May 6, 1986.

Released for Publication Aug. 15, 1986.

[151 MICHAPP 557] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Margaret Horenstein, Asst. Pros. Atty., for the People.

Thomas Jamnik, Bloomfield Hills, for defendant-appellant.

[151 MICHAPP 558] Before BEASLEY, P.J., and GRIBBS and M.H. CHERRY, ^* JJ.

PER CURIAM.

Defendant pled guilty to two counts of first-degree criminal sexual conduct, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), one count of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d; M.S.A. Sec. 28.788(4), and one count of unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. Defendant was sentenced to 15 to 100 years imprisonment on each of the criminal sexual conduct counts, and 10 to 15 years imprisonment on the unarmed robbery count. After sentencing, defendant moved to withdraw his plea. The motion was denied by the trial court. Defendant appeals from this denial. We affirm the denial of defendant's motion to withdraw his plea, but remand for a hearing on whether the trial court considered allegedly inaccurate information in the presentence report in sentencing defendant.

Defendant contends that his motion to withdraw his guilty pleas should have been granted because he misunderstood the sentence recommendation of a 10- to 15-year minimum sentence as being a 10-year minimum to a 15-year maximum recommendation and because factual inaccuracies existed in the presentence report.

Defendant's first claim, that he misunderstood the sentence recommendation, is not supported by the record. Defendant's counsel plainly stated the recommendation on the record three different times. Moreover, the recommendation was written out on the plea form. Upon defendant's raising of this issue before the trial court, defense counsel stated on the record that he had explained the recommendation as a 10- to 15-year minimum, not a 10- to 15-year sentence, whenever he spoke with [151 MICHAPP 559] defendant. On this record we find that the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. People v. Henderson, 144 Mich.App. 801, 803, 377 N.W.2d 319 (1985).

With respect to defendant's second argument, we first point out that a challenge to the accuracy of a presentence report challenges the sentencing process, not the conviction. Thus, withdrawal of a guilty plea is not an appropriate remedy if inaccurate information was actually considered and used by the trial court in sentencing. The remedy in such a case would be a resentencing of the defendant.

Where the accuracy of information in a presentence report is challenged, the trial court may make a determination as to the accuracy of the information, or, as a matter of expediency, disregard the challenged information in sentencing the defendant. People v. Taylor, 146 Mich.App. 203, 205, 380 N.W.2d 47 (1985). In the instant case, the defendant alerted the trial court to an alleged inaccuracy in his presentence report. The court acknowledged the alleged inaccuracy prior to sentencing defendant, but did not clearly indicate whether or not it relied on the challenged information.

This Court has developed three approaches in dealing with such situations. The first is to view the acknowledgment of the alleged inaccuracy as a sufficient response. People v. Gray, 125 Mich.App. 482, 487, 336 N.W.2d 491 (1983). The second is to remand for a hearing at which the trial court determines whether the challenged information affected its sentencing decision. People v. Brown, 104 Mich.App. 803, 821, 306 N.W.2d 358 (1981) (opinion of Judge Gillis), rev'd. on other grounds 412 Mich. 913, 317 N.W.2d 189 (1982). The third is [151 MICHAPP 560] to remand for resentencing. People v. Edenburn, 133 Mich.App. 255, 258, 349 N.W.2d 151 (1983).

We agree with the second approach and remand for a hearing within 20 days at which the trial court shall determine whether the challenged information affected the court's imposition of sentence....