Opinion
Docket No. 141611.
Submitted March 4, 1993, at Lansing.
Decided November 15, 1993, at 9:25 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Donald E. Martin, Prosecuting Attorney, and Samuel R. Smith, Chief Appellate Attorney, for the people.
James D. Lovewell, for the defendant.
Before: MICHAEL J. KELLY, P.J., and MARILYN KELLY and CONNOR, JJ.
AFTER REMAND
Defendant appeals from an Ingham County Circuit Court order denying his motion for resentencing. He argues that the trial court erred in not permitting him to file objections to the presentence investigation report (PSR) and the sentencing information report (SIR). He asserts that his sentence is disproportionate and that the court erred in sentencing him under the second edition of the guidelines. We remand.
Defendant pled guilty to first-degree criminal sexual conduct in 1987. MCL 750.520b; MSA 28.788(2). His sentence was twenty-five to sixty years in prison. On appeal, we affirmed both the conviction and the sentence. People v Lopez, unpublished opinion per curiam of the Court of Appeals, decided November 2, 1989 (Docket No. 104085). The Michigan Supreme Court, in lieu of granting leave to appeal, remanded to us for reconsideration in light of People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990). On remand, we returned the case to the trial court for resentencing under Milbourn and instructed the trial court to utilize the second edition of the guidelines. People v Lopez, unpublished opinion per curiam of the Court of Appeals, decided January 18, 1991 (Docket No. 135019).
For resentencing, an updated PSR was prepared. It contained the original PSR plus a two-page update. Defense counsel objected to statements made in the original PSR and to the scoring of the SIR based on the statements. The trial court refused to consider challenges to the original PSR or the SIR which alleged inaccuracies not objected to during the initial sentencing. The judge determined that the PSR as supplemented supported the scoring of the SIR. She resentenced defendant to the same term as before, twenty-five to sixty years in prison, this time using the second edition of the sentencing guidelines.
Defendant next filed a motion for resentencing. The judge denied it. Relying on the law of the case doctrine, she refused to allow defendant to attack the factual basis of the original PSR. The judge cited this Court's ruling which said:
Defendant contends that the trial court improperly considered offenses other than the one offense on which defendant stood convicted, specifically, those counts which were dismissed pursuant to the plea agreement.
When imposing sentence, the trial court may consider other criminal activity for which no conviction resulted, including dismissed charges, provided that the defendant is given an opportunity for refutation. Also, though the sentencing judge may not make an independent finding of guilt on some other charge, the judge may consider the defendant's admissions. Here, defendant was given the opportunity to refute the other alleged criminal sexual conduct offenses described and contained in the pre-sentence report in accord with MCR 6.101(K). In fact, defendant did object to and deny one specific sexual act. However, he admitted to the remainder of the investigator's version. In doing so, defendant admitted to multiple assaults. The trial judge could properly consider those admissions in sentencing. [ People v Lopez, unpublished opinion per curiam of the Court of Appeals, decided November 2, 1988 (Docket No. 104085).]
I
Defendant argues that the trial court erred in sentencing him under the second edition of the Michigan sentencing guidelines. See People v Fisher (After Second Remand), 190 Mich. App. 598; 476 N.W.2d 762 (1991), rev'd 442 Mich. 560; 503 N.W.2d 50 (1993). We find no merit to his argument, because its premise was nullified when the Michigan Supreme Court reversed this Court's ruling in Fisher. In Fisher, the defendant was originally sentenced under the first edition of the guidelines. He was resentenced under the second edition, subjecting him to a harsher recommended sentence. The Supreme Court concluded that sentencing someone under the second edition of the guidelines, who had initially been subject to the first, violated neither due process nor ex post facto laws. Therefore, we find no error in the sentencing of defendant in this case under the second edition of the guidelines.
II
Defendant argues that the trial court erred in refusing to allow him to challenge information contained in the original PSR and in the scoring of the SIR. A defendant waives his right to challenge inaccuracies in the PSR if he fails to raise them at the time of sentencing. People v Sharp, 192 Mich. App. 501, 504; 481 N.W.2d 773 (1992). In addition, a defendant waives any challenge to the SIR's scoring not made (1) at sentencing, or (2) by a motion for resentencing, or (3) by a timely filed motion to remand in this Court. People v Walker, 428 Mich. 261, 266; 407 N.W.2d 367 (1987); MCR 6.429(C). However, in the instant case, we are not bound by Sharp and Walker. They did not address the specific question at issue here, whether a defendant waives challenges at resentencing which were not made to information used during the original sentence.
We agree with defendant that, at resentencing, he is entitled to all of the protections he was guaranteed during his initial sentencing. We see no reason to distinguish between rights available at an original sentencing and at a resentencing; a resentencing imposes a new proceeding. Therefore, at resentencing defendant must be accorded the right to challenge information in the original and supplemental PSR as well as the scoring of the SIR. See MCR 6.425(D).
Even if the trial court finds that the SIR was improperly scored, resentencing may not be required. If the trial judge determines that the sentence is proportionate in light of any corrections made in the scoring of the guidelines, no resentencing will be required. See People v Polus, 197 Mich. App. 197; 495 N.W.2d 402 (1992); People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990). Assuming the guidelines were properly scored, we would find defendant's sentence proportionate. Defendant has failed to convince us that unusual circumstances exist necessitating a downward departure from the guidelines' recommended range. See Milbourn, 661.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.