PEOPLE
v.
HARRISON
Docket No. 61036.
Michigan Court of Appeals.
Decided September 2, 1982.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Salvatore Scibetta, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Chari Grove), for defendant on appeal.
Before: N.J. KAUFMAN, P.J., and V.J. BRENNAN and R.L. TAHVONEN,[*] JJ.
PER CURIAM.
As a result of a plea agreement, defendant Lamaas Harrison pled guilty, on June 8, 1979, to the offense of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. On June 26, 1979, the defendant was sentenced to a term of 10 to 15 *494 years in prison. He was resentenced on June 5, 1980, to a term of 4 to 15 years following an order of remand entered by this Court. Defendant now appeals as of right.
It is first claimed that an insufficient factual basis was adduced at the time of the plea to support its acceptance by the trial court. A review of the transcript satisfies us that the defendant's statements to the court at the time of the plea-taking would support a finding that he participated in the commission of the charged offense as an aider and abettor, MCL 767.39; MSA 28.979. From those facts admitted by the defendant, a jury could reasonably infer that this defendant aided another in the perpetration of the breaking and entering knowing that the perpetrator had the required specific intent to commit a larceny. That being so, a sufficient factual basis existed to support acceptance of the plea. Guilty Plea Cases, 395 Mich. 96; 235 NW2d 132 (1975); People v Wirth, 87 Mich. App. 41; 273 NW2d 104 (1978).
Defendant next argues that he is entitled to be sentenced again because the trial judge failed to expressly respond to defense claims of inaccuracies in the presentence report. Defense counsel alleged that the report was inaccurate in at least two respects: in stating that this defendant was the "foreman of the crime" and in indicating that the defendant "fenced" certain of the stolen items in Detroit. Defense counsel at resentencing stated to the Court:
"Well, the first thing I would like to bring out is that I feel that the there were certain statements in the original pre-sentence report which have been repeated in the up-dated pre-sentence report, which do give a mistaken impression about the defendant's involvement in this offense.
*495 "The statement I refer to is that the defendant was the foreman of the crime. Of course, this information was provided by the co-defendants in this case, and I would suggest that it is not reliable information, and that the defendant does maintain that he was not indeed the foreman of the offense, and that it was planned by the co-defendants without it was planned without the knowledge of the defendant.
"The defendant's Mr. Harrison's mistake was that he did go along with it once he realized that there was going that it was going to be a breaking and entering. But again, Mr. Harrison does submit that he was not indeed the foreman of the offense, and also that he did not actually fence the property which was taken which is contrary to the statements again given by the codefendant in the case."
Having heard these and other remarks from defense counsel and having received written letters regarding the defendant's progress while in the custody of the Department of Corrections, the trial court stated:
"I've read everything submitted to me it's quite a volume of material, and I've considered everything said here today. So we'll pause at this time in this case and go back on the record shortly again."
Approximately one-and-a-half hours later, the case was recalled and the court noted:
"Having considered everything that has been said, and everything that's been submitted, and considering everything else about the case, the following sentence is imposed."
The defendant was then sentenced to a term of 4 to 15 years in prison, with appropriate credit granted.
The issue is whether the trial court adequately *496 responded to the defendant's assertion that inaccurate information was included in the presentence report.
A defendant is entitled to be sentenced on the basis of accurate information, Townsend v Burke, 344 U.S. 736; 68 S. Ct. 1252; 92 L. Ed. 1690 (1948); People v Lee, 391 Mich. 618; 218 NW2d 655 (1974). To facilitate the procedural implementation of this due process right, GCR 1963, 785.12 requires that the prosecutor and defense counsel (or defendant if not represented) be afforded an opportunity to inspect the presentence report and to explain or controvert the factual representations it contains. If a claim is then made that all or part of the report is factually inaccurate, the sentencing judge has discretion in determining how best to proceed. As this Court noted in People v McIntosh, 62 Mich. App. 422, 448; 234 NW2d 157 (1975), rev'd on other grounds 400 Mich. 1; 252 NW2d 779 (1977), the trial court may conduct an evidentiary hearing with respect to the disputed matters, may accept as true the defendant's version of the questioned facts, or may determine that the disputed matter is not relevant to the sentencing decision or can be safely disregarded. In short, the judge's response to the claim of inaccuracy is within his or her sound discretion and that discretion is to be exercised with the view of imposing a sentence based upon accurate information.
However, even though what the judge does is discretionary, it is clear that the judge must do something. This Court has repeatedly held that the failure of the sentencing judge to respond to a defendant's claim of inaccuracy requires resentencing in all but the most limited of circumstances. People v McIntosh, supra; People v Major, 106 Mich. App. 226; 307 NW2d 451 (1981); People v *497 Baker #2, 103 Mich. App. 704; 304 NW2d 262 (1981); People v Perez, 103 Mich. App. 636; 303 NW2d 49 (1981); People v Perez, 94 Mich. App. 759; 289 NW2d 857 (1980). Those limited circumstances where resentencing is not mandated include cases where the error was harmless beyond a reasonable doubt because the inaccuracy would have no bearing on the ultimate sentence and those cases where the record clearly establishes that the judge accepted as true the defendant's version of the facts, even though the court did not expressly so state. See People v Krist, 107 Mich. App. 701; 309 NW2d 708 (1981).
Because the trial judge in this case did not expressly indicate his method of resolving the controversy created by the defendant's claim of inaccuracy, the prosecutor urges that
"the statements by the court, the delay in sentencing, and the reduction of the minimum sentence by in excess of two years, demonstrates that the court did exercise its discretion."
In effect, the prosecutor would have us infer that the trial judge accepted as true the defendant's assertion that he was not the ringleader and did not "fence" the goods. That inference should be drawn, says the prosecutor, from the statements of the trial court that it considered everything submitted and said, from the one-and-one-half hour delay in sentencing and from the reduction in the minimum sentence. Accepting as true for present purposes the assertion that a sentencing court's resolution of a factual dispute may, in certain cases, be inferred from the lower court record even in the absence of an express determination, we are constrained to find that this is not such a case and must therefore remand for resentencing.
*498 The statement by the trial judge that he considered everything submitted and said at sentencing does not support an inference that the factual dispute was resolved or the questioned assertions disregarded. The court considered both the questioned statements in the presentence report and defense counsel's assertions that they were false. That consideration does not in any way indicate whether the sentencing judge believed the presentence report or the defendant's version. Nor does it suggest in any fashion that the sentencing judge disregarded the factual assertions in the presentence report.
The delay in sentencing was apparently utilized by the trial court to further review written reports submitted to him by the Department of Corrections concerning the defendant's conduct while in prison. Again, this does not bear upon the dispute or its resolution.
The reduction in sentence was attributed by the trial judge to the fact that the defendant did "well while he was in the prison system" and to "everything else presented to the court and said to the court". Nothing in this statement suggests how the trial court exercised the discretion confided to it in responding to the claim of inaccuracy. We are left to speculate as to what weight, if any, the sentencing court gave to the allegedly erroneous information.
Finally, we cannot say that the disputed factual statements would have had little bearing on the defendant's ultimate sentence. Cf. People v Krist, supra, 704. Assertions that this defendant was the "foreman of the crime" and "fenced" the stolen goods could clearly have an effect on the sentence imposed.
Here, as in McIntosh, supra, and Major, supra, *499 we are constrained to conclude that the trial court simply failed to respond to the defendant's allegation that the presentence report contained inaccurate information relevant and material to the sentencing decision. There is nothing before us in the record which would allow us to infer, as this Court did in Krist, supra, that the matter was of no moment or that the trial court impliedly consented to the defendant's proposed correction of the inaccuracy. The defendant therefore must be resentenced.
Because the issue may arise again at resentencing, we note that the defendant or his attorney should be apprised of any sentencing recommendation received by the court unless the court states on the record the basis for exclusion under GCR 1963, 785.12. People v Matzat, 108 Mich. App. 327; 310 NW2d 231 (1981).
The defendant's conviction is affirmed. The case is remanded for resentencing before another judge. This Court does not retain jurisdiction.
V.J. BRENNAN, J. (dissenting).
I cannot concur in my colleagues' disposition of the sentencing issue here.
The record is clear that the trial judge, upon being advised of the alleged inaccuracies in the presentence report, did the following: (1) adjourned sentencing for over an hour; (2) returned and stated that he had "considered everything that has been said"; and then (3) quite significantly reduced defendant's sentence by over two years.
There is no question in my mind that the judge considered the claims of inaccuracies. He then came back and lowered the sentence, clearly indicating his response to the claim and the exercise of his discretion. There was no error here.
I would affirm without remand.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.