People v. Sharp

Danhof, C.J.

Defendant pleaded guilty of assault with intent to do great bodily harm less than murder (gbh), MCL 750.84; MSA 28.279, and assault while armed with a dangerous weapon (felonious assault), MCL 750.82; MSA 28.277. In exchange for his pleas, two counts of assault with intent to commit murder were dismissed, MCL 750.83; MSA 28.278. His convictions were based on his involvement in a fight in downtown East Lansing between two groups of young men, during which defendant, seventeen years of age, stabbed two men several times.

On March 14, 1990, defendant was sentenced to concurrent terms of 6 to 10 years for the gbh conviction, 2 Vi to 4 years for the felonious assault *503conviction, and was given credit on each sentence for 155 days for time served. Defendant appeals his sentences as of right, and we affirm.

Defendant’s first claim is that the sentencing judge failed to respond to defendant’s challenges to the accuracy of various statements contained in the presentence investigation report (psr) indicating that the victims were attacked for no reason whatsoever. Defendant first raised the issue at the postsentencing hearing on his motion for a withdrawal of the pleas,1 a resentencing, or an evidentiary hearing. However, the judge declined to grant either resentencing or an evidentiary hearing on the provocation issue on the ground that defendant and defense counsel were afforded an opportunity to challenge the accuracy of the psr at sentencing, but had not done so.

We note, and defendant does not dispute, that at sentencing neither defendant nor defense counsel indicated any objection to the accuracy of the psr information, which included the now-disputed statements of two victims and a member of defendant’s group at the time the crime occurred, as well as a victim impact statement from the parents of one of the victims.2 Attempting to mitigate defendant’s crime, defense counsel noted that according to defendant’s version of events, the victims and other members of their party taunted defendant’s party before the stabbings. However, counsel went on to concede that such actions by the victims did not excuse defendant’s crimes. After the prosecutor responded that the victims denied engaging in any provocation, defendant *504stated that he had commenced the attack in response to his friends’ yells for help and had done what he thought necessary to free his friends and "get me home.” But at no time during sentencing did the defense specifically challenge the accuracy of the victims’ version of events; to the contrary, the defense specifically voiced its lack of objection to the accuracy of the psr.

In imposing sentence, the judge simply noted that even if the victims had conducted themselves in the manner described by defendant, there was no evidence that defendant was attacked with a weapon or put in fear such that he had a legal excuse for the stabbings.

We find that defendant failed to preserve this issue and therefore decline to review it. In the plain language of the presentence investigation report statute, MCL 771.14(5); MSA 28.1144(5), "/ajt the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report.” (Emphasis added.) MCR 6.425(D)(2)(b) contains essentially the same language.

Here, defendant did not raise the issue until after sentencing. He cites People v Walker, 428 Mich 261; 407 NW2d 367 (1987), as authority allowing postsentencing preservation of issues of psr accuracy. Although Walker allows challenges to be preserved through posttrial proceedings, that case pertains to challenges to scoring of the sentencing guidelines. We decline to extend the rules underlying challenges to scoring decisions to challenges to the accuracy of psr information in light of the statutory language quoted above. See also People v Maxson, 163 Mich App 467, 472, n 1; 415 NW2d 247 (1987).

To follow defendant’s preferred course would in *505essence require sentencing judges to try guilty plea cases in postsentencing proceedings whenever a defendant disputes a victim’s version of events. This we decline to do absent compelling authority.

Defendant also contends that the sentences imposed are disproportionate and that he is entitled to resentencing under People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990), which was released after defendant was sentenced and had filed his claim of appeal. However, the sentence imposed for the gbh conviction, i.e., the greater conviction for which guidelines were scored, was within the guidelines range of thirty-six to eighty months, albeit toward the high end of that range.

We review this case under the Milbourn principle of proportionality rather than the pre-Milbourn "shocks the conscience” standard set forth in People v Coles, 417 Mich 523, 550; 339 NW2d 400 (1983). Defendant’s appeal was pending, although he had not yet filed a brief, át the time Milbourn was released. Milbourn, 669-670.

Under Milbourn, "even a sentence within the guidelines could be an abuse of discretion in unusual circumstances.” (Emphasis added.) Id., 661; People v Broden, 428 Mich 343, 354, n 18; 408 NW2d 789 (1987). Black’s Law Dictionary defines "unusual” as "[uncommon, not usual, rare.” We note the absence of unusual circumstances advanced by defendant on appeal or on the record of proceedings below and therefore hold that defendant’s sentence, falling within the sentencing guidelines range, satisfies the principle of proportionality.

If a defendant or his attorney believes that unusual circumstances exist so that a sentence within the guidelines range would not be proportionate, then those circumstances should be presented to the sentencing judge in open court before *506sentencing so that the judge may consider them. If this is not done, then the issue that a sentence that is within the guidelines range violates the principle of proportionality may not be raised on appeal.

Finally, we note that the sentence imposed for defendant’s felonious assault conviction is shorter than the longest minimum sentence allowed under the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).3 Therefore, no Tanner violation occurred in the imposition of sentence. Defendant also claims that the sentence of to 4 years imposed for his felonious assault conviction violates the principle of proportionality. Even if we were to hold that the felonious assault sentence was disproportionate, such a decision would afford defendant no relief in view of our affirmance of the longer sentence.

Affirmed.

Shepherd, J., concurred.

The motion for withdrawal of the guilty pleas was abandoned at the hearing without being argued by counsel or ruled on by the judge. Defendant does not raise on appeal any issue with regard to withdrawal of his guilty pleas.

Although defendant did not attach the psr to his brief as claimed, the contents of the disputed statements are set forth in his brief.

Because the felonious assault conviction carried the lesser possible penalty, the guidelines were scored only for the greater conviction of GBH.