Summary
In People v Saylor, 88 Mich. App. 270, 275; 276 N.W.2d 885 (1979), this Court said that a delayed sentence means no sentence is initially imposed even though the trial court may impose conditions upon the defendant.
Summary of this case from People v. HackerOpinion
Docket No. 78-2599.
Decided January 17, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
Green, Moon, Haldy, Gibbs McCabe, for defendant.
On August 1, 1977, defendant pled guilty to the crime of unarmed robbery, a violation of MCL 750.530; MSA 28.798. Sentencing was deferred at that time until June 28, 1978. In the interim defendant was ordered to participate in a drug treatment program and not to leave that program without the express written permission of his probation officer. On May 11, 1978, after leaving the program prematurely, he was sentenced to 7 to 15 years imprisonment. He now appeals as of right.
Defendant's claim of an insufficient factual basis for his guilty plea is totally without merit. At the plea proceeding, defendant initially failed to provide an adequate factual basis. However, after consultation with counsel several pertinent details of the crime, which had previously been omitted, were revealed to the court. Defendant's second account of the crime was unequivocal and in no way inconsistent with his initial version of the crime. It also presented an adequate factual basis for the crime of unarmed robbery.
Defendant's contention that the plea was coerced is similarly without merit. Since no motion to vacate the plea has been made below, this issue is not properly before this Court. People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). Moreover, on the record before us, there is no indication that the plea was coerced. After providing the factual basis for the plea defendant stated that he was pleading guilty of his own free choice. The trial judge was under no duty to make any further inquiry as to the voluntariness of the plea.
Defendant's final contention is that he was denied due process when he was sentenced without prior notice of the charges and a full adversary hearing. He claims that those rights afforded probationers are equally applicable to those subject to deferred sentencing.
MCL 771.1; MSA 28.1131, which permits deferred sentencing, provides in part:
"any case in which the court may place the defendant on probation, it may delay the imposing of sentence of the defendant for a period of not to exceed 1 year for the purpose of giving the defendant an opportunity to prove to the court his eligibility for probation or such other leniency as may be compatible with the ends of justice and the rehabilitation of the defendant. When the sentencing is delayed, the court shall make an order setting forth the reason for the delay, which order shall be entered upon the records of the court. The delay in passing sentence shall not deprive the court of jurisdiction to sentence the defendant at any time during the extended period."
The statute includes no provision for a hearing, should the judge decide to sentence defendant during the extended period. People v Clyne, 36 Mich. App. 152, 154; 193 N.W.2d 399 (1971).
The record indicates that defendant had notice of the sentencing, which was originally scheduled for November 30, 1977, but failed to appear. He appeared for the May 11, 1978, sentencing only after a bench warrant had been issued to compel his appearance. At the sentencing defendant was provided with a copy of his presentence report and both he and his attorney were granted the right of allocution.
Defendant's attempt to compare this situation to a probation revocation proceeding is unconvincing. In placing a defendant on probation, a judge has in effect imposed a sentence. The sentencing judge has determined to his satisfaction that
"the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant shall suffer the penalty imposed by law * * *." MCL 771.1; MSA 28.1131.
Thus, the decision to revoke probation and impose a term of imprisonment involves the imposition of a different sentence to replace the order of probation.
In the case of a deferred sentencing, no sentence is initially imposed. Rather, the sentencing is delayed so that defendant can "prove to the court his eligibility for probation". MCL 771.1; MSA 28.1131. As with any sentencing, the sentence ultimately imposed is based upon all the circumstances of the defendant's background, including any failure to conform his conduct to conditions imposed in conjunction with the sentence deferral. Defendant is protected from any possible inaccuracies in the presentence report by his right of allocution and has attorney's right to view the presentence report.
We are satisfied that no violation of defendant's due process rights occurred in this case. As required by GCR 1963, 785.12, defendant's attorney was provided with a copy of defendant's presentence report. As required by GCR 1963, 785.8(2), and GCR 1963, 785.12, defendant and his attorney were allowed to respond to the information in the presentence report and to bring to the court's attention any other information believed to be relevant. Due process requires nothing more.
Affirmed.