*1 454 Mich PEOPLE v MILES Argued 13, (Calendar 12). Docket No. 100683. November No. Decided March 1997. Dwayne pleaded guilty Court, E. Miles in the Detroit Recorder’s Wendy Baxter, J., robbery possession M. of armed of a firearm during felony. plea, the commission At the time of the he was advised, alia, he inter that would serve a term the fel- ony-firearm Thereafter, following receipt conviction. a aof letter Department employee indicating from a of Corrections that the felony-firearm previous defendant had a conviction and fur- after investigation, judgment, ther the trial an court entered amended five-year providing felony-firearm sentence for the conviction party resentencing hearing. without notice either and without C.J., Appeals, (White, J., The Court of and Wahls, dis- Doctoroff, senting), unpublished opinion per (Docket affirmed in an curiam 164256). appeals. No. The defendant by opinion joined by Justice Chief Justice Mallett, Weaver, Supreme and Justices Brickley Court held-. Riley, resentencing hearing The court’s failure to afford the defendant a learning it when amended his of after presentence report in error was harmless error. The defendant accuracy prior felony-firearm conviction, admits the of his and the sentencing by provision court was bound enhancement 750.227b(l); However, 28.424(2)(1). because the armed rob-
bery sentence was also based on inaccurate information presentence report, the defendant has a to be resentenced at resentencing hearing for the armed conviction. sentencing length A1. court need not consider the of a consecu- setting or tive concurrent sentence when an indetermi- nate sentence. Where defendant receives consecutive sentences punishment allowed, and neither sentence exceeds the maximum aggregate disproportionate will sentences not be under People Milboum, Each sentence is treated separately principle proportionality. under Milboum’s authority Although typically 2. court over a pronounced, ends when a valid sentence is the court correct where, case, an invalid sentence after as in this it is in the information. The information inaccurate based on report it failed to disclose the was inaccurate because 6.429(A), prior conviction. Under MCR subject the trial invalid and to modification both sentences are court. *2 unique are because the inaccu- circumstances of this case 3. The by inaccuracy
racy disputed and not the defendant the was mandatory sentencing under which the trial a scheme involved facts, Despite these the trial court erred no discretion. court had sponte felony-firearm sentence sua and when it modified the prison implicitly to same term for resentenced the defendant the resentencing hearing. a armed without part, part, and remanded. in reversed in Affirmed part, part dissenting concurring in in and Justice Cavanagh, resentencing for the fel- entitled to stated that the defendant also ony-firearm conviction. charging faced a two- that the defendant The documents stated felony-firearm imprisonment year As he conviction. term of for his two-year again pleaded guilty, he he was informed that faced plea, was later sen- this he convicted and term. On the basis of opportunity two-year or the to term. Without notice tenced to the five-year by counsel, represented to a term he was resentenced be imprisonment by trial court entered sua an order that the sponte, A not enter his to counsel. court in violation of judgment period the order of increases an amended allowing giving the notice and defendant’s incarceration without appear counsel, opportunity address the court, explanation decision. hear of its and the court’s Boyle, dissenting, judge trial could have stated the Justice underlying reopened for offense and hold resen- the sentence the felony-firearm hearing obliged tencing not so. but was do by judge invalid, the sentence was and its correction determinate judge no had discretion to was ministerial act because 750.227b(l); impose sentence other than that mandated MCL 28.424(2) (1992), App 597; Davis, 493 NW2d overruled. part this Kelly in decision of case. took no
Justice
L.
Attorney General, Thomas
Kelley,
Frank J.
O’Hair,
D.
Prosecut-
General,
Casey, Solicitor
John
Chief, Research,
Baughman,
A.
Attorney, Timothy
ing
State Defender Peter Jon Van for the defendant. J. Defendant was convicted of armed rob- Weaver,
bery possession during of a firearm the commis- felony. presentence report sion of a Because the prior felony- failed show that defendant had a firearm conviction,
imposed awas consecutive sentence. When inaccuracy the trial court learned of the in the presentence report sponte court, sua and without affording resentencing hearing, defendant a enhanced statutorily years sentence to five as Appeals mandated. The Court of affirmed the increased sentence. part part judgment
We reverse and affirm in *3 Appeals. resentencing of the Court of We remand for only regard to the armed conviction and felony-firearm hold the modification of the to be harmless error because defendant admits the prior felony-firearm conviction.
i gun, gro- a Armed with defendant robbed a Detroit cery April charged store in 1992.He was with armed robbery1 possession during and with of a firearm the felony.2 presentence report commission of that The prison stated that he faced consecutive felony-firearm charge. term for the 1 MCL 750.529; 750.227b(l); MSA 28.797. 28.424(2)(1). Opinion of the Court as pleaded guilty February 1993, defendant
In terms of plea, the negotiated This was charged. During record. the placed were on the bargain the that court told defendant he plea the trial proceeding, years prison felony-firearm. two in would serve sentencing, the for the March preparation In report that listed court received a trial conviction for defendant. prior no portion report. of this the party challenged Neither to a term then sentenced defendant The trial court years prison robbery.3 for armed to fifteen of six first Believing that it was defendant’s two-year manda- conviction, imposed the the court tory term. consecutive the later, employee Department an
Six weeks stating court sent a letter to trial Corrections felony- been convicted of previously had defendant felony- as a employee that, stated second firearm. The a five- offender, serving should be firearm defendant year two-year term. term rather than a Department of Correc-
The trial court informed
prior
locate a record of a
fel-
that it could not
tions
department
response,
In
ony-firearm conviction.
name of
provided
number,
date,
docket
judge.
meantime,
timely requested
had
April 1993,
counsel. In
appointment
appellate
counsel.4
appointing
entered
order
the court
computed
years,
initially
sentencing guidelines
to six
were
at two
accepted
plea,
if he
he
trial
advised defendant
and the
court
*4
guidelines
guidelines range.
within
When the
he sentenced
would
years.
twenty
actually calculated, however,
range
was four to
were
timely
6.425(F)(3),
claim of
order constituted
MCR
this
Under
appeal.
Opinion of the Court judgment The court trial then entered an amended providing of sentence, that defendant would serve a five-year imprisonment felony-firearm.5 term of judgment The amended was entered notice without to party resentencing hearing. either and without a appeal, argued On defendant that he should be Appeals resentenced,6 affirmed.7 but the Court of This granted application Court defendant’s for leave to appeal.8
n question presented The is whether the trial court authority modify had the to defendant’s years, sponte sentence from two five sua and with- resentencing hearing, out a it when learned after sen- tencing previously had defendant been convicted felony-firearm. challenge
Defendant does not the existence of the prior felony-firearm argues Instead, conviction. he resentencing that he is entitled to because the trial required court should have been to reconsider the length his consecutive indeterminate sentence when it enhanced defendant’s sentence years. prosecutor correctly to five The characterizes appeal attempt question as an to raise the a trial whether length court should consider the effect setting when a con- secutive indeterminate sentence. 5 Again, fifteen-year this sentence would be served before the six- robbery.
sentence for armed
attempt
plea
did
not
his
withdraw
and did not chal
lenge
accuracy
prior felony-firearm
conviction.
7 Unpublished opinion per curiam,
July 12,
(Docket
issued
No.
164256).
Opinion Court by Although addressed this issue has been Appeals, has addressed this this Court not Court of question People Appeals
directly.
in
v
of
The Court
App
(1991),
660
734; 476 NW2d
190 Mich
Warner,
receives consecutive
a defendant
held that where
the maxi
exceeds
and neither sentence
sentences
aggregate
punishment allowed,
mum
disproportionate
People v
under
will not be
sentences
(1990).9
1
In
435
461 NW2d
Milbourn,
630;
Mich
separately under
Warner treats each sentence
effect,
proportionality.10
principle of
Under
Milboum’s
445
1996-4,
Nos. 1994-4 and
Administrative Order
controlling.
We
xcii,
Mich xci and 451 Mich Warner
reasoning persuasive
a
and hold that
find Warner’s
length
sentencing
a
need
consider the
of
court
not
when
or
sentence
consecutive
concurrent
11
setting an indeterminate sentence.
People
holding,
Davis, Mich
we overrule
v
196
so
App
(1992), to
that it
People
197
III
authority
Although the
the court over
defend-
typically
ant
ends when a valid sentence
is pro-
nounced,
the court
correct
invalid sentence
after sentencing.
Jenkins,
In re
364;
438 Mich
People
NW2d 279
(1991);
Barfield,
700;
NW2d 724 (1981);
Fox,
Thus, it necessary is underly- to address whether the ing sentences were invalid.
A
A
invalid when
beyond statutory
it is
limits,
upon
when it is
constitutionally
based
imper
grounds,
missible
improper assumptions of
guilt,
misconception of law, or
it
when
conforms to local
sentencing policy rather
than individualized facts.
People v Whalen, 412 Mich
312
166, 169-170;
NW2d
638
This Court has
repeatedly
also
held
sentence is invalid if it is
on
based
inaccurate infor
mation. People
Triplett,
v
407 Mich
515; 287
NW2d 165 (1980); Whalen, supra
170;
People v
Eason,
In this
the information in
presentence
report was inaccurate because it failed to disclose
prior felony-firearm
conviction. A
of
line
Michigan cases hold that sentences based on inaccu-
rate information
People
are invalid.
v Lauzon, 84
App
Mich
201;
Opinion of Court defendant under the mis- it erred when sentenced burglary while that he had committed taken belief App 740; People Corlin, bond); out on report errone- (1980) (the NW2d 188 pleaded guilty had the defendant ously stated that penalty of two which carried maximum possession, which carried a maximum delivery, than years, rather (After v Hale years); People seven penalty of App 306; (1981) 308 NW2d 106 Mich Remand), cooperation the defendant’s was found because (error made known to the court at police was not with the 45 Mich People Hildabridle, sentencing); the time of for the was error App 93; (1973) (it 206 NW2d of inac- the defendant on the basis court to sentence of the stolen the value regarding curate information property). review a statutory requirement that the court under- before a sentence
presentence report
imposing
accuracy
sentencing.
importance
scores
reports
MSA 28.1144. Presentence
771.14;
MCL
character, and circum-
antecedents,
into the
“inquire
771.14(1);
person,”
stances
People v
integral
sentencing,
and are
28.1144(1),
174;
(1974) (reasoning
states,
‘[i]nvalid
procedure
or
defect
in the sentence
to be resentenced or to have
entitles a defendant
comment
Although the staff
changed.”
sentence
Because of the in sentenc- ing original felony-firearm we find that the subject by was invalid and to modification the trial 6.429(A). court under MCR Because the armed rob- bery sentence was based on the same inaccurate information, we also hold it invalid under MCR 6.429(A). question However, the remains whether in this case it was error for the trial court to increase implicitly sentence and reaffirm the defendant’s armed conviction sponte affording oppor- sua and without defendant an tunity challenge the new information aat resen- tencing hearing.
B 6.429(A) specify procedural MCR does not safe- guards that must be afforded a defendant when an invalid sentence is modified.13Certain sentence modi- 12 People Corlin, supra, initially the court sentenced the defendant possession carrying term, for of a controlled substance a twelve-month delivery but then realized that the conviction was of of a controlled sub carrying seven-year stance a three- to term. provided Certain modifications of valid sentences be made “as example, may modify law.” For a trial court a sentence under MCL 769.11b; 28.1083(2), Michigan’s statute, MSA sentence credit and under 801.257; 28.1747(7), authorizing trial courts to reduce a sen by one-quarter good tence conduct. *8 People 99 op Opinion the Court in nature sentences are ministerial of invalid
fications however, resentencing hearing;14 not a require and do process protec- require the due modifications other resentencing hearing. of a tions majority presume that of cases example, For of of a sentence found invalid because the correction sentencing information relied on at inaccuracies See, hearing. e.g., People resentencing will occur at a Hale, Lauzon, People Hildabridle, v v People v is consis- Corlin, supra. v Such a conclusion stage fact that is critical tent which a Sixth the defendant has proceedings Peo- represented to be counsel. Amendment 594; 548 NW2d ple Pubrat, 589, 451 595 are unique, given this case circumstances inaccuracy involved a the fact had no under which the trial court sentencing scheme felony-firearm statute discretion. The states: possession person or her A who carries has in his or attempts she commit a firearm when he or commits or 223, 227, felony, except 227a a violation section section felony, imprisoned 2 guilty of a and shall be for or section, per- years. Upon conviction under this a second imprisoned years. Upon for or subse- son shall be 5 third person quent subsection, this shall be conviction under years. imprisoned 750.227b(l); 10 [MCL 28.424(2)(1).] proof beyond a doubt requires
This statute reasonable during carried a firearm the commis- felony nothing attempted sion or commission of the provision the enhancement more. Similar to 14 Maxson, App 467; (1987) See, e.g., People NW2d act). (holding fixing of a maximum sentence is a ministerial Mich
Opinion of the Court act, controlled substances whether a defendant was a felony- first-, second-, or third-time offender under the only firearm act affects *9 duration defend- ant’s sentence. process protections
Due
afforded defendants sub-
ject
provisions
to such sentence enhancement
are
than
less
those afforded
defendants
the substan-
sepa-
tive
the
offense, because
is not a
enhancement
proved beyond
rate element that must be
a reason-
People
supra
Applying
able doubt.
at
Eason,
233.
People
Appeals People
Court
Eason, the
v Wil-
App
(1996),
liams, 215
234, 236;
Despite inaccuracy the fact the in this case provision involved a enhancement with unique process due we considerations, hesitate to purely declare the sentence modification at issue min- robbery isterial because defendant’s armed and fel- ony-firearm sentences were on based inaccurate presentence report. information in the Therefore, we hold that the trial court erred when it modified felony-firearm implicitly sentence prison resentenced defendant the same term for robbery sponte resentencing armed sua without hearing.
IV unique In conclusion, we consider the effect case, circumstance of this that defendant admits the accuracy felony-firearm prior conviction, with by Cavanagh, Opinion
respect and the sentence to both robbery sentence. armed
Regarding sentence, because felony- prior accuracy of the admits sentencing court and because conviction firearm provision enhancement was bound unnecessary 28.424(2)(1), 750.227b(l); it is felony-firearm sen- defendant for resentence challenges to the fel- All on remand. tence conviction ony-firearm failure moot, and the court’s are hearing resentencing when it afford defendant error. was harmless the sentence amended robbery sentence was the armed However, because information in the inaccurate based on report, to be resen- does have the defendant respect resentencing hearing to the tenced at remand, the trial court On conviction. armed *10 prior regarding may the new information consider may felony-firearm raise or The court as it chooses. robbery leave sentence, or it lower the armed repeat, unchanged. the court is And we the sentence length consecutive of the not bound to consider felony-firearm mandatory under Mil- principle proportionality because each sen- bourn’s separate determination. is a tence Appeals judgment in is affirmed of the Court of part. part reversed in and JJ., C.J., and Brickley con- Riley, and Mallett, J. Weaver, curred with dissenting part (concurring in J. Cavanagh, opinion’s
part).
remand for
I
with the lead
concur
resentencing
How-
armed
conviction.
on the
holding that the modification
from its
I dissent
ever,
The defendant’s sentence for the changed years years, conviction was from two to five prior although officially conviction had not been part established or made a of the record in this case. disagree Even if it had been established, I with the opinion’s lead assertion that the defendant’s sentence necessarily would have to be amended to be five years. prosecution If the has the discretion whether charge felony-firearm initially, the defendant with plea bargain it should also be able to enter into a requiring only years the defendant to serve two instead of five. I would not want to limit the discre- prosecutor plea-bargain tion of the in a situation. emphasize charged I that defendant was with fel- ony-firearm. The information indicated that the sen- years. tence was a two Further, as he pleaded guilty, judge informed him that he faced a plea, term.1 On the basis of he was, in mandatory two-year fact, sentenced to the term. prosecution ability Because the had the to discover prior the record, but did not so, do it plea, prosecutor connection agreed with the the assistant to the charges. During plea dismissal proceeding, of some unrelated the trial court advised the defendant: Now, agreed you your attorney have if
you plead guilty charged felony as to armed firearm years which carries a two and has to be served consec- utive; you words, in other can’t serve the time for both crimes simultaneously. felony years You have to do firearm two first you begin any getting robbery. before credit for the armed 103 People by Opinion Cavanagh, J. two-year sentence bargain be held its should felony-firearm conviction. for the
I
at
of
stage
proceedings,
is a
Sentencing
critical
right
Sixth
has a
Amendment
which the defendant
Mich
People Eason,
v
435
counsel.
represented
be
Smith,
People
8;
(1990);
n
458 NW2d
228, 234,
of
(1985)
(opinion
NW2d 384
427, 452;
95, 121;
Wakeford, 418 Mich
C.J.); People v
Williams,
Johnson,
68 (1983);
341 NW2d
In this the defendant’s sentence years from to five ony-firearm was increased two judicial order the term years. establishing Such which the “sentence,” is indeed a at imprisonment to counsel attaches. of the and the appears that the action trial court It prem- Appeals largely of the are affirmance Court the view it is certain that the ised on felony- five-year have received a sentence should assumption therefore, is it that, The unstated firearm. waste of time and resources would have been a a resentencing. conduct why approach reasons this
There are least two protec First, constitutional and other erroneous. properly are honored sentencing2 that attend a tions sentencing proceeding when the outcome of even person Thus, convicted foregone is a conclusion.3 chapter See, generally, IX of Criminal of the Code MCR 6.425 seq. seq.; 28.1072 et Procedure, MCL 769.1 et five-year emphasized above, is a fore think the sentence As I I do not plea part gone was in this conclusion case. However, five-year bargain, sen- even if the which should be enforced. *12 104 454 Mich 90 Opinion by Cavanagh, J. formally
first-degree murder be sentenced, must only option although the trial life court’s is a possibility parole. mandatory penal without Other including two-year ordinary ties, sentence for fel ony-firearm, formally pronounced likewise be must in presence of the defendant. may deny
Second, a court at a not counsel critical stage ground proceedings of the on the that the court upon challenge cannot think basis which to a rul- ing that the court intends to make. If this defendant opportunity given appear had been an with coun- might legal sel, he well able have been to formulate a challenge five-year potential to the sentence.5 Several though right issues here, are evident his to counsel at dependent ability is not on a court’s argument. foresee meritorious
n charging case, In this documents stated that the two-year imprisonment. defendant faced a term of As pleaded guilty, again he he was informed that he two-year plea, faced a term. On the basis of this he two-year was convicted and later sentenced to the opportunity repre- term. Without notice or the to be sented counsel, the defendant was resentenced to five-year imprisonment by term of an order that sponte. trial court entered sua Such an occurrence right violates the defendant’s to counsel.6A court required, tence were the defendant should be entitled to formal resentencing. 750.316; MSA 28.548. example, argue For he would have been able to that the sen part plea bargain. tence was unnecessary It is to determine whether it is also a denial his consti process tutional to due of law. Dissenting Opinion by Boyle, not enter amended order of judgment period increases of a defendant’s incarceration without giving notice and allowing defendant an opportunity appear with counsel, address court, and hear explanation the court’s of its sentenc- ing decision.
For reasons, these I would reverse the judgment *13 Appeals, the Court of in part reverse the judgment of the trial court, and remand this case to the trial court for further MCR proceedings. 7.302(F)(1). {dissenting).
Boyle,
i While I agree majority with the that “a sentencing court need not length consider of a consecutive or concurrent sentence when setting sentence,” ante indeterminate I dissent from majority’s decision that “the trial court erred when it modified implicitly resentenced defendant to the same
prison term for armed sponte sua and with- out a resentencing hearing.” Ante at 100.
While the trial court choose to treat the omis- sion as a material factor and resentence in that event, it is not error to fail to do so. The sentence for the underlying offense was valid because it was based on accurate information. The defendant does not claim a mistake in presentence report of which he was unaware, attorney that his was ineffective for advis- ing plead him to guilty, or prosecutor that was prior aware of the agreed conviction and forgo Mich 90 Opinion by Dissenting Boyle, J. Nor plea bargain.1 in the or sentence prior conviction pleaded guilty in which defendant is this a situation incorrectly on an and was sentenced of one offense See, plead guilty. e.g., which he did not offense to Corlin, NW2d People v App 740; (1980). to the regard court had no discretion
The trial
felony-firearm offense; thus,
separate
sentence for the
a ministerial act not
pro tunc,
correction nunc
was
its
People Maxson,
requiring
resentencing hearing.
Counsel for
App 467;
that a sentence was question move to withdraw The before us is not whether defendant could plea plea resentencing bargain on the basis that the violated a or that plea involuntary defendant did not understand the conse was because quences. argued argument, here. If in that He could have so successful resentencing, specific performance result would but either or not be plea. allowing has not made such claims. order withdrawal of He Dissenting Opinion by Boyle,
n
dispute
presume
that the “cases
I do not
correction of
sentence found invalid because of
sentencing
inaccuracies in information relied on at
resentencing hearing.”
will occur at a
Ante at 99.
process right
has a due
not to
Defendant
be sen-
unsup-
tenced on the basis of a conclusion that is
ported
Burke,
736;
in fact. Townsend v
334 US
68 S Ct
majority,
1252;
Defendant does not error in conceding the armed sentence, fact its validity. prosecutor Just as the could not later seek to reopen knowledge a sentence where it had that the proceeded factually court had on the incorrect basis that the defendant had fewer convictions than he actually operates did, an omission that in the defend- ant’s favor, to which the defendant does not object, does not render an otherwise valid sentence invalid. Jenkins, 364, 370; In re 475 NW2d279
(1991), explained: we legal culture, judge bring
In the current the trial must knowledge, experi- bear at the moment of all the ence, ability available, because the decision made at judge’s ruling. will moment be that ultimate The sen- process carefully tencing designed to ensure conscien- *15 454 Mich
Dissenting Opinion by Boyle, J. making that moment. informed decision as of tious and adequate judge Every has effort is made to ensure that the upon to base the sentenc- accurate information which and only defendant, Sentencing the occurs ing decision. after attorney, prosecutor, the and the victims the defendant’s present opportunity their views to the all had the to have addition, presentence report court. MCR 6.425. prepared provide to the court with as much information as possible to fit the cir- so that the sentence can be tailored parties opportunity The have the to review cumstances. report accuracy challenge any and to sentencing. it contains in advance MCR information system encourages judge thought- 6.425. The current fully every factor before the defendant. consider [Emphasis added.] may
Judges wish to to reflect amend sentences adjustment underlying downward in the they they would have made had been aware of the may prior convictions, and do so. However to hold they do in final- so, that must undermines interest ity by discourages full and disclosure obligations to counsel so that counsel can fulfill both and the to the client court. Defendant his counsel opportunity argue had an the sentence that for the underlying offense should be tailored to the circum- People Triplett, 513-515; stances. NW2d 165 Under circumstances, these opportunity sentencing. came and went at the time of appears knowingly prof- From all that here, defendant presentence report ited an from inaccurate and now inaccuracy seeks relief from for which he must be responsible (because allege igno- deemed he does not facts). judge grant rance of the A trial relief required circumstances, such but is not to do so. judge required I would hold the trial was not reopen underlying the sentence for the offense Miles Dissenting Opinion by Boyle, resentencing hearing. hold a deter- and its invalid, minate sentence was correction *16 judge was a ministerial act because the had no judge impose discretion to a sentence other than that mandated I 750.227b(l); 28.424(2)(1). affirm the Appeals. would decision Court of J., part took no in the decision of this case. Kelly,