People v. StrunkPeople v. Strunk
- Reporters:
- ,
- Before:
- Kelly
Dеfendant pled guilty to possession of cocaine less than fifty grams with intent to dеliver,
Defendant claims that the procedure by which the probation officer, rather than the trial court, actually scored thе sentencing information report violated Administrative Order No. 1984-1, 418
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Mich lxxx,
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and the Administrative Procedures Act (apa),
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 NW2d 892 (1985). The guidelines do not create substantive rights,
People v Porter,
169 Mich App 190; 425 NW2d 514 (1988), although a defendant is entitled to raise challenges to the accuracy of the sir.
People v Walker,
428 Mich 261, 266; 407 NW2d 367 (1987). Sentеncing remains a discretionary task, and the appropriate apрroach is to individualize the sentence to the offender.
People v Adams,
430 Mich 679; 425 NW2d 437 (1988). The manner by which thе trial court here reviewed the sir, allowed for objections to its acсuracy 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 offiсer has a specific duty to make a sentencing recommendation.
The trial court, in addition to cоnsidering 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 rеsentencing because he was not present at the hearing on his motion fоr 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 guidelinеs’ recommended range and, contrary to defendant’s claim on apрeal, 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, thеre must be a showing that the sentence imposed was invalid. Wayne Co Prosecutor v Recorder’s Court Judge, 164 Mich App 740, 748; 417 NW2d 594 (1987). Defendant’s objeсtion to his not being present at the motion hearing does not demonstrate that the sentence was invalid. Since defendant was not resentenced, no right оf allocution arose. Further, a postsentencing hearing on the scoring of the sir is not a critical stage and, in any event, the record contains no indication of prejudice. See People v Alcorta, 147 Mich App 326; 383 NW2d 182 (1985), lv den 425 Mich 876 (1986), and People v Billington, 116 Mich App 220, 232; 323 NW2d 343 (1982).
*212 We conclude that the sentence оf from forty-two months to twenty years, as originally imposed and tailored to fit the special circumstances of the defendant, was not rendered invalid by the scoring change at the motion hearing. Compare to People v Porter, supra. Accordingly, defendant is not entitled to resentencing.
Affirmed.
Notes
Adminstrative Order No. 1984-1 applies to this case pursuant to the extension provided by Administrative Order No. 1985-2, 420 Mich Ixii.