Opinion
Docket No. 16466.
Decided October 21, 1974.
Appeal from Jackson, Gordon W. Britten, J. Submitted Division 2 October 9, 1974, at Lansing. (Docket No. 16466.) Decided October 21, 1974.
Randy C. Grable was convicted, on his plea of guilty, of possession of pentobarbital. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and James M. Justin, Assistant Prosecuting Attorney, for the people.
Judith K. Munger, Assistant State Appellate Defender, for defendant.
By his plea of guilty, defendant was convicted of violating MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b). He was sentenced and he appeals.
Of the four issues raised on appeal, only one merits discussion. Appellate counsel, who was not trial counsel, requested a copy of the presentence report on the basis of People v McFarlin, 389 Mich. 557; 208 N.W.2d 504 (1973), and GCR 1963, 785.12. This request was denied by the trial court, and defendant contends this denial was reversible error.
Defendant pleaded guilty September 22, 1972. The McFarlin decision was on June 28, 1973. GCR 1963, 785.12 was effective September 1, 1973. Neither the court rule nor the McFarlin decision is retroactive and we have found no statute, court rule, or court decision that was in effect on September 22, 1972 that required the trial court to furnish appellate counsel a copy of the presentence report. It was not error, reversible or otherwise, to deny appellate counsel's request for a copy of the presentence report.
This result is not in conflict with People v Chappell, 44 Mich. App. 204; 205 N.W.2d 285 (1972). Chappell first decided that the sentence involved was in violation of People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972), and that the sentence had to be corrected. The Chappell court did not correct the sentence because the next issue presented involved the denial by the trial court of appellate counsel's motion to produce the presentence report.
The Chappell court termed this denial "improper", not reversible error. Read in conjunction with the Tanner error that required resentencing, we interpret Chappell to require disclosure of the presentence report at time of sentence when requested. This is the sense of GCR 1963, 785.12 as we read it. After stating that the sentencing court shall permit the defendant's attorney or the defendant and the prosecution to see the presentence report, the next sentence of the rule is as follows:
"Both parties shall be given an opportunity at time of sentencing to respond to the presentence report and to explain or controvert any factual representations disclosed." (Emphasis added.)
Affirmed.