PEOPLE
v.
PIERCE
Docket No. 91563.
Michigan Court of Appeals.
Decided February 18, 1987.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, O. Paul Schendel, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, for the people.
*115 State Appellate Defender (by Sheila N. Robertson), for defendant.
Before: SHEPHERD, P.J., and WAHLS and SULLIVAN, JJ.
WAHLS, J.
Defendant, Todd Randall Pierce, pled guilty to breaking and entering an unoccupied building, MCL 750.110; MSA 28.305. He was sentenced to a term of from four years, six months to ten years, and he appeals as of right.
Prior to sentencing, defendant challenged the accuracy of the presentence report. Defendant claimed that there were a number of inaccuracies. The court held an evidentiary hearing with regard to two of the statements in the report: (1) a statement that defendant committed a number of breaking and enterings on his way to the crime to which he pled guilty; and (2) a statement that defendant committed other crimes in the area two days earlier. Defendant denied both allegations. Following the hearing, the court ordered that the presentence report be revised to take into account defendant's version of the disputed facts.
Defendant's first contention is that he is entitled to resentencing because the sentencing judge was not the same judge who accepted his guilty plea. Generally, a defendant should be sentenced by the judge who presided at his trial, provided that the judge is reasonably available. People v Clemons, 407 Mich. 939; 291 NW2d 927 (1979), reversing 91 Mich. App. 68, 74; 282 NW2d 838 (1979). This same rule applies to guilty pleas. People v Clark, 408 Mich. 945 (1980). See also People v Humble, 146 Mich. App. 198, 200; 379 NW2d 422 (1985). The purpose of the rule is to ensure that the judge who hears the evidence at plea will sentence defendant based upon the circumstances established at the *116 time of the plea. When a judge who has not heard the evidence at the plea taking sentences the defendant, the sentence may not be tailored to fit the particular circumstances of the case and the offender. Compare People v McFarlin, 389 Mich. 557, 574; 208 NW2d 504 (1973).
In this case, defendant was not sentenced by the judge who accepted his plea. However, the judge who sentenced defendant presided over the two sentencing hearings evolving from defendant's challenges to the contents of the initial presentence report. Therefore, the sentencing judge was familiar with the circumstances of the case and the offender, and he was able to tailor the sentence to fit defendant and the circumstances of the crime. We also note, in passing, that defendant was informed at the plea-taking that another judge would sentence him, and the original presentence report stated that the sentencing judge would replace the plea-taking judge; yet he never made any objection to that procedure. Thus, resentencing is not required.
Defendant's second argument is that he is entitled to resentencing because the presentence report contained disputed material and the court failed to make a conclusive finding as to the accuracy of that material. It is well established that a sentencing court has a duty to respond to a defendant's allegation of inaccuracy in the information provided to the court at sentencing and that the court's failure to do so is error mandating resentencing. Townsend v Burke, 334 U.S. 736; 68 S. Ct. 1252; 92 L. Ed. 1690 (1948); People v Lee 391 Mich. 618, 637; 218 NW2d 655 (1974). However, the duty to "respond" does not mean that the court must conclusively resolve the dispute. Rather, it means simply that the court must act. In deciding what action to take, the court has wide latitude.
*117 While not compelled to hold an evidentiary hearing, in the exercise of his discretion, he may do so. He may accept unsworn statements of the defendant. He may ascertain that the disputed matter is not relevant to his decision, or is of little weight, or could be safely disregarded without regard to its accuracy in light of other facts. There are many ways, in the exercise of his discretion, that he may meet the problem. [People v McIntosh, 62 Mich. App. 422, 448; 234 NW2d 157 (1975), rev'd of other grounds 400 Mich. 1 (1977).]
In this case, defendant disputed information that he had committed other crimes just prior to the present one. An evidentiary hearing was held and the presentence report was revised to include defendant's version of the alleged criminal activity. At sentencing, defense counsel noted that the report had been amended and then stated:
Mr. Daughty: ... Mr. Pierce has not been charged with those offenses. It is my understanding that he will not be charged.
The Court: I will not he is not being sentenced for those, either.
The response indicates that the trial court had decided to disregard this disputed material in determining the appropriate sentence. This is a sufficient response to defendant's claim of inaccurate information. McIntosh, supra. It is also noted that the trial court did not refer to the allegations at sentencing.
Defendant also contends that all reference to the disputed criminal activity should have been deleted from the presentence report. However, it is well established that the presentence report may contain references to other alleged criminal activity provided that defendant is given the opportunity for refutation. Lee, supra; McIntosh, supra, p *118 446; People v Books, 95 Mich. App. 500, 503; 291 NW2d 94 (1980).
Defendant relies on People v Taylor, 146 Mich. App. 203; 380 NW2d 47 (1985), for the proposition that information challenged as inaccurate and not considered by the sentencing judge should be stricken from the presentence report.
In Taylor, defendant argued that "he is entitled to a `corrected' presentence report which reflects his objections to inaccuracy, made at the time of sentencing, which objections were sustained." Id., pp 204-205. We agreed. A defendant is entitled to have a presentence report that correctly reflects the matter asserted. Lee, supra; McIntosh, supra. However, Taylor is limited to that proposition. The suggestion that a sentencing judge who disregards certain information, in effect, has determined that that information is "irrelevant" and, thus, should strike it from the presentence report is obiter dictum. The concern in Taylor was with false information going to the Department of Corrections. Ensuring that accurate and relevant information be transmitted to the Department of Corrections does not require deletion of every challenged statement in the report which is not considered by the sentencing court. Taylor, supra, pp 205-206.
In the present case, defendant alleged incorrect information in the presentence report. A hearing was held on the issue and the report was amended to fully reflect all the versions of the facts. Thus, defendant has a "corrected" report containing an accurate statement of the dispute. Lee, supra; McIntosh, supra.
Next, defendant argues that the trial court abused its discretion in imposing a sentence which departed from the sentencing guidelines. The *119 guidelines are just that, guidelines. A trial court may depart from the guidelines as long as it articulates its reasons for doing so and the eventual sentence does not shock our judicial conscience. People v Coles 417 Mich. 523, 549; 339 NW2d 440 (1983).
The court stated that the guidelines did not "take sufficient account of [defendant's] background and the severity of this offense and the context of this offense on your background." The court then referred to defendant's extensive criminal record, his tender age, the fact that he was on escape status when he stole a car and committed the present crime, and his substance abuse problem. The sentence of four and one-half years to ten years does not shock the judicial conscience and the trial court did not abuse its discretion by imposing that sentence.
Affirmed.