PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Dwayne Eugene MILES, Defendant-Appellant.
Docket No. 100683, Calendar No. 12.
Supreme Court of Michigan.
Argued November 13, 1996. Decided March 6, 1997.*300 Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief, Research, Training and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, Detroit, for People.
State Appellate Defender by Peter Jon Van Hoek, Detroit, for Defendant-Appellant.
Before the Entire Court.
Opinion
WEAVER, Justice.
Defendant was convicted of armed robbery and possession of a firearm during the commission of a felony. Because the presentence report failed to show that defendant had a prior felony-firearm conviction, the felony-firearm sentence imposed was a two-year consecutive sentence. When the trial court learned of the inaccuracy in the presentence report the court, sua sponte and without affording defendant a resentencing hearing, enhanced the felony-firearm sentence to five years as statutorily mandated. The Court of Appeals affirmed the increased sentence.
We reverse in part and affirm in part the judgment of the Court of Appeals. We remand for resentencing only with regard to the armed robbery conviction and hold the modification of the felony-firearm sentence to be harmless error because defendant admits the prior felony-firearm conviction.
I
Armed with a gun, defendant robbed a Detroit grocery store in April 1992. He was *301 charged with armed robbery[1] and with possession of a firearm during the commission of that felony.[2] The presentence report stated that he faced a two-year consecutive prison term for the felony-firearm charge.
In February 1993, defendant pleaded guilty as charged. This was a negotiated plea, and the terms of the bargain were placed on the record. During the plea proceeding, the trial court told defendant that he would serve two years in prison for felony-firearm.
In preparation for the March 1993 sentencing, the trial court received a presentence report that listed no prior felony-firearm conviction for defendant. Neither party challenged this portion of the report.
The trial court then sentenced defendant to a term of six to fifteen years in prison for armed robbery.[3] Believing that it was defendant's first felony-firearm conviction, the court imposed the two-year mandatory consecutive term.
Six weeks later, an employee of the Department of Corrections sent a letter to the trial court stating that defendant had previously been convicted of felony-firearm. The employee stated that, as a second felony-firearm offender, defendant should be serving a five-year term rather than a two-year term.
The trial court informed the Department of Corrections that it could not locate a record of a prior felony-firearm conviction. In response, the department provided a docket number, a date, and the name of the sentencing judge.
In the meantime, defendant had timely requested the appointment of appellate counsel. In April 1993, the court entered an order appointing counsel.[4]
The trial court then entered an amended judgment of sentence, providing that defendant would serve a five-year term of imprisonment for felony-firearm.[5] The amended judgment was entered without notice to either party and without a resentencing hearing.
On appeal, defendant argued that he should be resentenced,[6] but the Court of Appeals affirmed.[7] This Court granted defendant's application for leave to appeal.[8]
II
The question presented is whether the trial court had the authority to modify defendant's felony-firearm sentence from two to five years, sua sponte and without a resentencing hearing, when it learned after sentencing that defendant had previously been convicted of felony-firearm.
Defendant does not challenge the existence of the prior felony-firearm conviction. Instead, he argues that he is entitled to resentencing because the trial court should have been required to reconsider the length of his consecutive indeterminate sentence when it enhanced defendant's felony-firearm sentence to five years. The prosecutor correctly characterizes defendant's appeal as an attempt to raise the question whether a trial court should consider the effect of the length of a mandatory sentence when setting a consecutive indeterminate sentence.
Although this issue has been addressed by the Court of Appeals, this Court has not addressed this question directly. The Court of Appeals in People v. Warner, 190 Mich. App. 734, 476 N.W.2d 660 (1991), held that *302 where a defendant receives consecutive sentences and neither sentence exceeds the maximum punishment allowed, the aggregate of the sentences will not be disproportionate under People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990).[9] In effect, Warner treats each sentence separately under Milbourn's principle of proportionality.[10] Under Administrative Order Nos. 1990-6 and 1991-11, 436 Mich. lxxxiv and 439 Mich. cxliv, Warner is controlling. We find Warner's reasoning persuasive and hold that a sentencing court need not consider the length of a consecutive or concurrent mandatory sentence when setting an indeterminate sentence.[11]
In so holding, we overrule People v. Davis, 196 Mich.App. 597, 493 N.W.2d 467 (1992), to the extent that it held a sentencing court must consider the effect of the length of the sentence of a mandatory felony-firearm conviction when sentencing the underlying felony. Davis' attempt to distinguish Warner is not persuasive. Id. at 602, n. 2, 493 N.W.2d 467.
III
Although the authority of the court over a defendant typically ends when a valid sentence is pronounced, the court may correct an invalid sentence after sentencing. In re Jenkins, 438 Mich. 364, 475 N.W.2d 279 (1991); People v. Barfield, 411 Mich. 700, 311 N.W.2d 724 (1981); People v. Fox, 312 Mich. 577, 20 N.W.2d 732 (1945). This established rule is restated in M.C.R. § 6.429(A):
The court may correct an invalid sentence, but the court may not modify a valid sentence after it has been imposed except as provided by law.
Thus, it is necessary to address whether the underlying sentences were invalid.
A
A sentence is invalid when it is beyond statutory limits, when it is based upon constitutionally impermissible grounds, improper assumptions of guilt, a misconception of law, or when it conforms to local sentencing policy rather than individualized facts. People v. Whalen, 412 Mich. 166, 169-170, 312 N.W.2d 638 (1981). This Court has also repeatedly held that a sentence is invalid if it is based on inaccurate information. People v. Triplett, 407 Mich. 510, 515, 287 N.W.2d 165 (1980); Whalen, supra at 170, 312 N.W.2d 638; People v. Eason, 435 Mich. 228, 233, 458 N.W.2d 17 (1990).
In this case, the information in the presentence report was inaccurate because it failed to disclose defendant's prior felony-firearm conviction. A line of Michigan cases hold that sentences based on inaccurate information are invalid. People v. Lauzon, 84 Mich.App. 201, 269 N.W.2d 524 (1978) (the trial court erred when it sentenced the defendant under the mistaken belief that he had committed a burglary while out on bond); People v. Corlin, 95 Mich.App. 740, 291 N.W.2d 188 (1980) (the presentence report erroneously stated that the defendant had pleaded guilty of possession, which carried a maximum penalty of two years, rather than delivery, which carried a maximum penalty of seven years); People v. Hale (After Remand), 106 Mich.App. 306, 308 N.W.2d 174 (1981) (error was found because the defendant's cooperation with the police was not made known to the court at the time of sentencing); People v. Hildabridle, 45 Mich. App. 93, 206 N.W.2d 216 (1973) (it was error for the court to sentence the defendant on the basis of inaccurate information regarding the value of the stolen property).
*303 The statutory requirement that the court review a presentence report before imposing a sentence underscores the importance of accuracy in sentencing. M.C.L. § 771.14; M.S.A. § 28.1144. Presentence reports "inquire into the antecedents, character, and circumstances of the person," M.C.L. § 771.14(1); M.S.A. § 28.1144(1), and are integral to sentencing, People v. Brown, 393 Mich. 174, 224 N.W.2d 38 (1974) (reasoning that a defendant cannot waive his right to a presentence report). They are intended to insure that the punishment is tailored not only to the offense, but also to the offender. People v. Triplett, supra at 513-515, 287 N.W.2d 165.
The staff comment accompanying M.C.R. § 6.429(A) states, "`[i]nvalid sentence' refers to any error or defect in the sentence or sentencing procedure that entitles a defendant to be resentenced or to have the sentence changed." Although the staff comment seems to anticipate that a sentence will be invalid when the error operates against a defendant, sentences have been held invalid even when the error operated in a defendant's favor.[12] A sentence may be invalid no matter whom the error benefits because sentencing must not only be tailored to each defendant, but also satisfy "society's need for protection and its interest in maximizing the offender's rehabilitative potential." Triplett, supra at 513, 287 N.W.2d 165 (citations omitted).
Because of the importance of accuracy in sentencing we find that the original felony-firearm sentence was invalid and subject to modification by the trial court under M.C.R. § 6.429(A). Because the armed robbery sentence was based on the same inaccurate information, we also hold it invalid under M.C.R. § 6.429(A). However, the question remains whether in this case it was error for the trial court to increase defendant's felony-firearm sentence and implicitly reaffirm the defendant's armed robbery conviction sua sponte and without affording defendant an opportunity to challenge the new information at a resentencing hearing.
B
M.C.R. § 6.429(A) does not specify procedural safeguards that must be afforded a defendant when an invalid sentence is modified.[13] Certain sentence modifications of invalid sentences are ministerial in nature and do not require a resentencing hearing;[14] however, other modifications require the due process protections of a resentencing hearing.
For example, the majority of cases presume that the correction of a sentence found invalid because of inaccuracies in information relied on at sentencing will occur at a resentencing hearing. See, e.g. People v. Lauzon, People v. Hale, People v. Hildabridle, and People v. Corlin, supra. Such a conclusion is consistent with the fact that sentencing is a critical stage of the proceedings at which the defendant has a Sixth Amendment right to be represented by counsel. People v. Pubrat, 451 Mich. 589, 594, 548 N.W.2d 595 (1996).
The circumstances of this case are unique, given the fact that the inaccuracy involved a mandatory sentencing scheme under which the trial court had no discretion. The felony-firearm statute states:
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223, section 227, 227a or 230, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a *304 third or subsequent conviction under this subsection, the person shall be imprisoned for 10 years. [M.C.L. § 750.227b(1); M.S.A. § 28.424(2)(1).]
This statute requires proof beyond a reasonable doubt that a defendant carried a firearm during the commission or attempted commission of a felony and nothing more. Similar to the enhancement provision of the controlled substances act, whether a defendant was a first-, second-, or third-time offender under the felony-firearm act affects only the duration of the defendant's sentence.
Due process protections afforded defendants subject to such sentence enhancement provisions are less than those afforded defendants for the substantive offense, because the enhancement is not a separate element that must be proved beyond a reasonable doubt. People v. Eason, supra at 233, 458 N.W.2d 17. Applying People v. Eason, the Court of Appeals in People v. Williams, 215 Mich.App. 234, 236, 544 N.W.2d 480 (1996), held that for enhancement of a felony-firearm sentence "due process is satisfied as long as the sentence is based on accurate information and the defendant has a reasonable opportunity at sentencing to challenge that information." We agree.
Despite the fact that the inaccuracy in this case involved a mandatory enhancement provision with unique due process considerations, we hesitate to declare the sentence modification at issue purely ministerial because defendant's armed robbery and felony-firearm sentences were based on inaccurate information in the presentence report. Therefore, we hold that the trial court erred when it modified defendant's felony-firearm sentence and implicitly resentenced defendant to the same prison term for armed robbery sua sponte and without a resentencing hearing.
IV
In conclusion, we consider the effect of the unique circumstance of this case, that defendant admits the accuracy of the prior felony-firearm conviction, with respect to both the felony-firearm sentence and the armed robbery sentence.
Regarding the felony-firearm sentence, because defendant admits the accuracy of the prior felony-firearm conviction and because the sentencing court was bound by the enhancement provision of M.C.L. § 750.227b(1); M.S.A. § 28.424(2)(1), it is unnecessary to resentence the defendant for the felony-firearm sentence conviction on remand. All challenges to the felony-firearm sentence are moot, and the court's failure to afford defendant a resentencing hearing when it amended the sentence was harmless error.
However, because the armed robbery sentence was based on inaccurate information in the presentence report, the defendant does have a right to be resentenced at a resentencing hearing with respect to the armed robbery conviction. On remand, the trial court may consider the new information regarding the prior felony-firearm as it chooses. The court may raise or lower the armed robbery sentence, or it may leave the sentence unchanged. And we repeat, the court is not bound to consider the length of the consecutive mandatory sentence for felony-firearm under Milbourn's principle of proportionality because each sentence is a separate determination.
The judgment of the Court of Appeals is affirmed in part and reversed in part.
MALLETT, C.J., and BRICKLEY and RILEY, JJ., concurred with WEAVER, J.
MARILYN J. KELLY, J., not participating.
CAVANAGH, Justice (concurring in part and dissenting in part).
I concur with the lead opinion's remand for resentencing on the armed robbery conviction. However, I dissent from its holding that the modification of the felony-firearm sentence was harmless error because the defendant admits to the prior felony-firearm conviction. In contrast, I would hold that the defendant is also entitled to resentencing for the felony-firearm conviction.
The defendant's sentence for the felony-firearm conviction was changed from two *305 years to five years, although the prior conviction had not been officially established or made a part of the record in this case. Even if it had been established, I disagree with the lead opinion's assertion that the defendant's sentence would necessarily have to be amended to be five years. If the prosecution has the discretion whether to charge the defendant with felony-firearm initially, it should also be able to enter into a plea bargain requiring the defendant to serve only two years instead of five. I would not want to limit the discretion of the prosecutor in a plea-bargain situation.
I emphasize that defendant was charged with felony-firearm. The information indicated that the sentence was a mandatory two years. Further, as he pleaded guilty, the judge informed him that he faced a two-year term.[1] On the basis of the plea, he was, in fact, sentenced to the mandatory two-year term. Because the prosecution had the ability to discover the defendant's prior record, but did not do so, it should be held to its bargain of a two-year sentence for the felony-firearm conviction.
I
Sentencing is a critical stage of the proceedings, at which the defendant has a Sixth Amendment right to be represented by counsel. People v. Eason, 435 Mich. 228, 234, n. 8, 458 N.W.2d 17 (1990); People v. Smith, 423 Mich. 427, 452, 378 N.W.2d 384 (1985) (opinion of Williams, C.J.); People v. Wakeford, 418 Mich. 95, 121, 341 N.W.2d 68 (1983); People v. Johnson, 386 Mich. 305, 316-317, 192 N.W.2d 482 (1971).
In this instance, the defendant's sentence for felony-firearm was increased from two years to five years. Such a judicial order establishing the term of imprisonment is indeed a "sentence," at which the right to counsel attaches.
It appears that the action of the trial court and the affirmance of the Court of Appeals are largely premised on the view that it is certain that the defendant should have received a five-year sentence for felony-firearm. The unstated assumption is that, therefore, it would have been a waste of time and resources to conduct a resentencing.
There are at least two reasons why this approach is erroneous. First, the constitutional and other protections that attend a sentencing[2] are properly honored even when the outcome of the sentencing proceeding is a foregone conclusion.[3] Thus, a person convicted of first-degree murder[4] must be formally sentenced, although the trial court's only option is a life sentence without possibility of parole. Other mandatory penalties, including the ordinary two-year sentence for felony-firearm, likewise must be formally pronounced in the presence of the defendant.
Second, a court may not deny counsel at a critical stage of the proceedings on the ground that the court cannot think of a basis upon which to challenge a ruling that the court intends to make. If this defendant had been given an opportunity to appear with counsel, he might well have been able to formulate a legal challenge to the five-year sentence.[5] Several potential issues are evident here, though his right to counsel at *306 sentencing is not dependent on a court's ability to foresee a meritorious argument.
II
In this case, the charging documents stated that the defendant faced a two-year term of imprisonment. As he pleaded guilty, he was informed again that he faced a two-year term. On the basis of this plea, he was convicted and later sentenced to the two-year term. Without notice or the opportunity to be represented by counsel, the defendant was resentenced to a five-year term of imprisonment by an order that the trial court entered sua sponte. Such an occurrence violates the defendant's right to counsel.[6] A court may not enter an amended order of judgment that increases the period of a defendant's incarceration without giving notice and allowing the defendant an opportunity to appear with counsel, address the court, and hear the court's explanation of its sentencing decision.
III
For these reasons, I would reverse the judgment of the Court of Appeals, reverse in part the judgment of the trial court, and remand this case to the trial court for further proceedings. M.C.R. § 7.302(F)(1).
BOYLE, Justice (dissenting).
I
While I agree with the majority that "a sentencing court need not consider the length of a consecutive or concurrent mandatory sentence when setting an indeterminate sentence," Op. at 302, I dissent from the majority's decision that "the trial court erred when it modified defendant's felony-firearm sentence and implicitly resentenced defendant to the same prison term for armed robbery sua sponte and without a resentencing hearing." Op. at 301.
While the trial court may choose to treat the omission 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 the presentence report of which he was unaware, that his attorney was ineffective for advising him to plead guilty, or that the prosecutor was aware of the prior conviction and agreed to forgo the prior conviction in the plea or sentence bargain.[1] Nor is this a situation in which defendant pleaded guilty of one offense and was sentenced incorrectly on an offense to which he did not plead guilty. See, e.g., People v. Corlin, 95 Mich.App. 740, 291 N.W.2d 188 (1980).
The trial court had no discretion with regard to the sentence for the separate felony-firearm offense; thus, its correction nunc pro tunc, was a ministerial act not requiring a resentencing hearing. People v. Maxson, 163 Mich.App 467, 415 N.W.2d 247 (1987). Counsel for defendant acknowledged that he and the defendant had reviewed the presentence report "together," and that "[f]actually... there are no corrections or additions that need to be made to this report." The presentence report correctly reflected that the defendant pleaded guilty of the offense for which he was sentenced. While the trial court might have adjusted the sentence for the underlying offense downward had it known of the other felony-firearm conviction, the defendant foreclosed that option by his representation that the presentence report was accurate. The trial court may remit that forfeiture or decline do so.
II
I do not dispute that the "cases presume that the correction of a sentence found invalid *307 because of inaccuracies in information relied on at sentencing will occur at a resentencing hearing." Op. at 303. Defendant has a due process right not to be sentenced on the basis of a conclusion that is unsupported in fact. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). The majority, however, is unable to find any authority applying this principle to find that a resentence is required at the behest of a defendant where what was omitted was information that would have been detrimental to the defendant if known to the sentencing judge. The situation before us is one in which the sentence was valid and the information on which it was based was accurate, but incomplete.
Defendant does not point to any specific error in the armed robbery sentence, in fact conceding its validity. Just as the prosecutor could not later seek to reopen a sentence where it had knowledge that the court had proceeded on the factually incorrect basis that the defendant had fewer convictions than he actually did, an omission that operates in the defendant's favor, and to which the defendant does not object, does not render an otherwise valid sentence invalid.
In In re Dana Jenkins, 438 Mich. 364, 370, 475 N.W.2d 279 (1991), we explained:
In the current legal culture, the trial judge must bring to bear at the moment of sentencing all the knowledge, experience, and ability available, because the decision made at that moment will be the judge's ultimate ruling. The sentencing process is carefully designed to ensure conscientious and informed decision making as of that moment. Every effort is made to ensure that the judge has adequate and accurate information upon which to base the sentencing decision. Sentencing occurs only after the defendant, the defendant's attorney the prosecutor, and the victims have all had the opportunity to present their views to the court. M.C.R. § 6.425. In addition, the presentence report is prepared to provide the court with as much information as possible so that the sentence can be tailored to fit the circumstances. The parties have the opportunity to review the presentence report and to challenge the accuracy of any information it contains in advance of sentencing. M.C.R. § 6.425 The current system encourages the judge to thoughtfully consider every factor before sentencing the defendant.
Judges may wish to amend sentences to reflect the downward adjustment in the underlying sentence they would have made had they been aware of the prior convictions, and may do so. However to hold that they must do so, undermines the interest in finality and discourages full disclosure by the defendant to counsel so that counsel can fulfill obligations both to the client and the court. Defendant and his counsel had an opportunity to argue that the sentence for the underlying offense should be tailored to the circumstances. People v. Triplett, 407 Mich. 510, 513-515, 287 N.W.2d 165 (1980). Under these circumstances, that opportunity came and went at the time of sentencing. From all that appears here, defendant knowingly profited from an inaccurate presentence report and now seeks relief from an inaccuracy for which he must be deemed responsible (because he does not allege ignorance of the facts). A trial judge may grant relief in such circumstances, but is not required to do so.
I would hold that the trial judge was not required to reopen the sentence for the underlying offense and hold a resentencing hearing. The felony-firearm determinate sentence was invalied, and its correction by the judge was a ministerial act because the judge had no discretion to impose a sentence other than that mandated by M.C.L. § 750.227b(1); M.S.A. § 28.424(2)(1). I would affirm the decision of the Court of Appeals.
NOTES
[1] M.C.L. § 750.529; M.S.A. § 28.797.
[2] M.C.L. § 750.227b(1); M.S.A. § 28.424(2)(1).
[3] The sentencing guidelines were initially computed at two to six years, and the trial court advised defendant that if he accepted the plea, he would be sentenced within that guidelines range. When the guidelines were actually calculated, however, the range was four to twenty years.
[4] Under M.C.R. § 6.425(F)(3), this order constituted a timely claim of appeal.
[5] Again, this sentence would be served before the six- to fifteen-year sentence for armed robbery.
[6] The defendant did not attempt to withdraw his plea and did not challenge the accuracy of the prior felony-firearm conviction.
[7] Unpublished opinion per curiam, issued July 12, 1994 (Docket No. 164256).
[8] 451 Mich. 896, 549 N.W.2d 578 (1996).
[9] Milbourn articulated the principle of proportionality, a standard applied when reviewing whether a sentence challenged as excessive actually comports with the seriousness of the offense and the offender.
[10] See also People v. Kent, 194 Mich.App. 206, 486 N.W.2d 110 (1992), and People v. Landis, 197 Mich.App. 217, 494 N.W.2d 865 (1992).
[11] A similar issue was addressed by this Court in People v. Thomas, 447 Mich. 390, 523 N.W.2d 215 (1994), in which this Court, applying M.C.L. § 769.24; M.S.A. § 28.1094, held that a partially invalid sentence need not be wholly annulled, but rather may be set aside only in respect to the unlawful excess. Although there was no "unlawful excess" at issue in this case, the principle of Thomas, that even the maximum and minimum terms of a sentence may be adjusted independently, is even more logical when applied to adjustments of sentences for separate convictions.
[12] In People v. Corlin, supra, the court initially sentenced the defendant for possession of a controlled substance carrying a twelve-month term, but then realized that the conviction was of delivery of a controlled substance carrying a three- to seven-year term.
[13] Certain modifications of valid sentences may be made "as provided by law." For example, a trial court may modify a sentence under M.C.L. § 769.11b; M.S.A. § 28.1083(2), Michigan's sentence credit statute, and under M.C.L. § 801.257; M.S.A. § 28.1747(7), authorizing trial courts to reduce a sentence by one-quarter for good conduct.
[14] See, e.g., People v. Maxson, 163 Mich.App. 467, 415 N.W.2d 247 (1987) (holding the fixing of a maximum sentence is a ministerial act).
[1] In connection with the plea, the assistant prosecutor agreed to the dismissal of some unrelated charges. During the plea proceeding, the trial court advised the defendant:
Now, the People have agreed with you and your attorney that if you plead guilty as charged to armed robbery and felony firearm which carries a mandatory two years and has to be served consecutive; in other words, you can't serve the time for both crimes simultaneously. You have to do felony firearm two years first before you begin getting any credit for the armed robbery.
[2] See, generally, M.C.R. § 6.425 and chapter IX of the Code of Criminal Procedure, M.C.L. § 769.1 et seq.; M.S.A. § 28.1072 et seq.
[3] As I emphasized above, I do not think the five-year sentence is a foregone conclusion in this case. The two-year sentence was part of the plea bargain, which should be enforced. However, even if the five-year sentence were required, the defendant should be entitled to formal resentencing.
[4] M.C.L. § 750.316; M.S.A. § 28.548.
[5] For example, he would have been able to argue that the two-year sentence was part of the plea bargain.
[6] It is unnecessary to determine whether it is also a denial of his constitutional right to due process of law.
[1] Justice Cavanagh's view that a defendant could argue at resentencing that a two-year sentence was part of the plea bargain is a non sequitur. The question before us is not whether defendant could move to withdraw a plea on the basis that the resentencing violated a plea bargain or that the plea was involuntary because defendant did not understand the consequences. He could have so argued here. If successful in that argument, the result would not be resentencing, but either specific performance or an order allowing withdrawal of the plea. He has not made such claims.