Opinion
Docket No. 79742.
Decided May 20, 1985.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.
Bernstein, Rabinovitz Gurwin (by Stephen R. Bernstein), for defendant.
Defendant pled guilty to a charge of larceny from a person, MCL 750.357; MSA 28.589. He was sentenced on January 28, 1983, to two years probation with the first six months to be served in the Detroit House of Correction. After six months he was duly released and ordered to report to his probation officer every two weeks. Defendant continually failed to report as required and was arrested for violating his probation. He pled guilty to the probation violation and on April 17, 1984, was sentenced to five to ten years imprisonment. He appeals as of right.
On appeal, defendant contends he is entitled to resentencing by reason of the fact that the sentencing guidelines were not utilized when he was sentenced for his probation violation, that the record does not reflect sufficient justification for the sentence, and that the sentencing judge interfered with his right to allocution. We disagree and affirm.
Turning to the Sentencing Guideline Manual, Section 1, we find that a probation violation is listed as an offense that does not require completion of a sentencing information report (SIR). Hence, we hold a SIR to be unnecessary when a defendant is being sentenced for an actual probation violation. A review of the SIR and all the factors to be included reveals that the guidelines are not equipped to deal with probation violations. There is no method provided for the inclusion of the conduct that resulted in the probation violation in the computation of the sentence. The SIR would look identical on both dates: when probation was first imposed and when the probation was violated. Accordingly, we will not require a SIR in probation violation situations.
Defendant also complains that the trial judge did not articulate sufficient reasons for the sentence in accordance with People v Coles, 417 Mich. 523; 339 N.W.2d 440 (1983). We disagree. The judge, being dissatisfied with the defendant's lack of compliance with his probation conditions and feeling a need to protect society and to discipline defendant, imposed a 5- to 10-year sentence. Our conscience is not shocked with the sentence imposed. People v Terrell, 134 Mich. App. 19, 26-27; 349 N.W.2d 810 (1984).
Defendant also contends that the sentencing judge improperly interfered with his right to allocution under GCR 1963, 785.8(2). Again, we disagree. One interruption by the trial judge does not constitute interference. As defendant had just violated his probation, the trial judge was within her rights to tell defendant she was not going to place him on probation again. Defendant was allowed and even encouraged to speak.
Affirmed.