People v. Walker
| Decision Date | 22 June 1987 |
| Docket Number | Docket No. 79649 |
| Citation | 428 Mich. 261,407 N.W.2d 367 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Brian WALKER, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Pros. Atty., and Brian S. Berger, Asst. Pros. Atty., St. Joseph, for the People.
State Appellate Defender by James Krogsrud, Detroit, for defendant-appellant.
The issue in this case is whether a defendant may raise in the Court of Appeals a challenge to the manner in which the sentencing guidelines have been scored, without first bringing the issue to the attention of the sentencing judge. We hold that to preserve the issue a defendant must bring it to the attention of the trial court at sentencing by a properly filed motion within the time period for filing a motion for a new trial or by a timely filed motion for remand in the Court of Appeals. MCR 7.211(C)(1).
In February of 1984, the defendant broke into a Benton Harbor appliance store. Originally charged with breaking and entering an unoccupied structure, 1 the defendant pled guilty later that month of the lesser offense of entry without breaking with intent to commit larceny. 2
The defendant was sentenced in May of 1984. At sentencing, he was represented by a new attorney, who had been appointed earlier that day. The defendant and his new attorney each stated his satisfaction with the manner in which the sentencing guidelines had been scored. 3 The probation officer recommended a minimum sentence of thirty months in prison, and defense counsel asked for a minimum sentence of twenty-four months in prison. The sentencing judge decided, after hearing these recommendations, to impose a minimum sentence of twenty-seven months in prison. 4 The maximum term was sixty months as set by the statute.
The defendant filed no postsentencing motions in the trial court. On appeal, he was given newly appointed counsel (his third attorney), but, after filing a claim of appeal in the Court of Appeals, that attorney filed nothing further for a full year. The Court of Appeals fined the third attorney and directed that the trial court appoint substitute appellate counsel. The fourth attorney then filed on the defendant's behalf a brief in the Court of Appeals in which it was argued that the defendant had been denied due process at sentencing. The defendant's claim was that the trial court had incorrectly scored Prior Record Variable 4, concerning prior low severity similar felony convictions. 5 The defendant accurately stated that the presentence report listed two prior felony convictions (attempted larceny in a building 6 and attempted entering without breaking 7), though only one of the offenses (the attempted entering without breaking) was "similar" as defined in PRV 4. Thus the trial court should have scored one point, rather than two points for PRV 4. This change would have moved the defendant from cell I-E (twelve to thirty months) to cell I-D (six to twenty-four months).
In his responsive brief in the Court of Appeals, the prosecutor argued only that the claim had been waived when the defendant and his attorney professed satisfaction at sentencing with the manner in which the guidelines have been scored. 8
The Court of Appeals agreed with the prosecutor, finding that the claim had been waived. The Court of Appeals thus did not reach the merits of the scoring question. 9 People v. Walker, 155 Mich.App. 247, 399 N.W.2d 489 (1986). In full, the opinion of the Court of Appeals appears in the margin. 10
The defendant has filed in this Court a request for review pursuant to MCR 7.303.
The Court of Appeals relied upon People v. Jones, 147 Mich.App. 292, 294-295, 382 N.W.2d 772 (1985), 11 and People v. Kennie, 147 Mich.App. 222, 225-226, 383 N.W.2d 169 (1985), to support its statement that the defendant "did not object to the scoring during the sentencing proceedings and, therefore, has waived this claim on appeal." 155 Mich.App. at 248, 399 N.W.2d 489. In Jones, the Court of Appeals said "that when the SIR 12 is available to the defendant and defense counsel prior to sentencing, defendant must challenge the accuracy of that report prior to imposition of the sentence or, at least, prior to appeal." 147 Mich.App. at 294, 382 N.W.2d 772. In Kennie, the Court of Appeals said "that defendants must specifically object at sentencing to alleged SIR scoring inaccuracies." 147 Mich.App. at 226, 383 N.W.2d 169. Earlier in Kennie, the Court of Appeals had observed that appellate counsel "failed to move to vacate defendant's sentence in the trial court prior to filing this appeal" and that appellate counsel had not "moved for a remand to the trial court after defendant's claim of appeal was filed." 13 147 Mich.App. at 225, 383 N.W.2d 169.
We agree with the approach taken by the Court of Appeals in these cases. A defendant who wishes to challenge the scoring of the sentencing guidelines must offer this challenge to the sentencing judge before raising the issue on appeal. To preserve the issue, defendant must bring it to the attention of the trial court at sentencing, by a properly filed motion within the time period for filing a motion for new trial, 14 or by a timely filed motion to remand in the Court of Appeals. 15 MCR 7.211(C)(1).
Although the defendant in this case failed to properly raise a challenge to the manner in which the guidelines were scored, we will discuss this problem for the benefit of the bench and bar. If a defendant properly raises a challenge to the manner in which the guidelines are scored, the trial court shall resolve that challenge in the same fashion that it resolves any other dispute concerning the accuracy of information to be considered at sentencing.
As reflected by the commentaries published by Professors LaFave and Israel 16 and by the American Bar Association, 17 there has been little authoritative guidance available concerning the allocation and nature of the burdens of proof at such hearings. 18 We are persuaded, though, that Standard 18-6.4(c) of the American Bar Association Standards for Criminal Justice (2d ed) should be adopted for use in Michigan. It provides:
"In reaching its findings on all controverted issues [of fact which are relevant to the sentencing decision], the sentencing court should employ the preponderance of the evidence standard and may treat the contents of a verified presentence report as presumptively accurate, provided, however, that material factual allegations made in the presentence report and effectively challenged by the defendant should not be deemed to satisfy the government's burden of persuasion unless reasonable verification of such information can be shown to have been made [by the person who prepared the presentence report] or adequate factual corroboration otherwise exists in the sentencing or trial record." 19
Thus, a defendant who seeks to challenge a proposed scoring decision bears the burden of going forward with an "effective challenge." Whether that requirement is satisfied with a flat denial of an adverse factual assertion, or whether an affirmative factual showing is required, will depend upon the nature of the disputed matter. Some negatives are obviously difficult or impossible to demonstrate by affirmative proof.
Once a defendant has "effectively challenged" an adverse factual assertion, the prosecution must prove by a preponderance of the evidence that the facts are as the prosecution asserts. This rule is consistent with prior holdings of this Court 20 and the Court of Appeals. 21
Where the record of the trial or of the plea proceeding 22 contains evidence supporting or opposing a proposed decision concerning the scoring of a variable, the sentencing judge shall exercise discretion in deciding whether to entertain further proofs.
We have considered, but decline to address, defendant's other allegation of error.
The defendant's request for review under MCR 7.303 is treated as an application for leave to appeal and, in lieu of granting that application, we affirm the decision of the Court of Appeals. MCR 7.302(F)(1).
3 The defendant's first attorney had written the trial court eleven days earlier to point out an error in the scoring of the prior record variables. The correction was noted by the sentencing judge.
4 As calculated by the trial court, the guidelines placed the defendant in cell I-E of the sixty-month grid for offenses in the burglary crime group. The recommended range of minimum sentence in cell I-E is twelve to thirty months.
7 M.C.L. Secs. 750.92, ...
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