Supreme Court of MichiganFeb 1, 1980
407 Mich. 510 (Mich. 1980)
407 Mich. 510287 N.W.2d 165

Docket No. 63513.

Decided February 1, 1980.

On application by the defendant for leave to appeal the Supreme Court, in lieu of granting leave to appeal, reversed the decision of the Court of Appeals and remanded the matter to Recorder's Court of Detroit for resentencing before a different judge.

This matter requires us to resolve a conflict in our Court of Appeals and determine whether the trial court reversibly erred in resentencing defendant without the benefit of a new or reasonably updated presentence report detailing, among other potential items, defendant's prior prison behavior. We resolve this inquiry in the affirmative and, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we remand this matter for resentencing before a different judge, who is to utilize a reasonably updated presentence report. The decision of the Court of Appeals is therefore reversed.

In People v Moore, 91 Mich. App. 319; 284 N.W.2d 483 (1979), Judge N.J. KAUFMAN authored an opinion remanding that matter for resentencing and directing the trial judge to secure an updated presentence report prior to resentencing in order to assure due consideration of defendant's previous ten years of prison conduct. In the opinion of Judge KAUFMAN, such a step was "necessary to insure that the trial judge was fully and accurately acquainted with defendant's background [citations omitted]". Id., 321. Chief Judge DANHOF dissented.
In the Court of Appeals below, People v Triplett (After Remand), 91 Mich. App. 82; 283 N.W.2d 658 (1979), the majority indicated its preference for an updated report but found that "[t]he failure to include the conduct in the presentence report was * * * not prejudicial". Id., 86. Judge KAUFMAN dissented from this decision and would have remanded for resentencing with an updated report.
In People v Allen, 79 Mich. App. 100; 261 N.W.2d 225 (1977), a unanimous panel held that the failure to provide a new or updated presentence report was not error since consideration of subsequent prison conduct on resentencing would amount to a usurpation of the executive power to commute sentences. The rationale for this ruling was expressly rejected by both the Moore and Triplett panels. We too find that ratio decidendi fallacious.

The facts of this case are quite simple although they now cover an expanse of nearly nine years. In 1972, defendant's original 1971 plea to a charge of second-degree murder and 45-60 year sentence were vacated because of errors in the plea proceeding. Defendant was subsequently tried by a jury and convicted of second-degree murder. Life imprisonment was imposed for this conviction. The Court of Appeals affirmed that conviction but remanded for resentencing on the ground that the trial court had failed to affirmatively enunciate its reasons for levying a higher sentence than that earlier meted out pursuant to defendant's plea. People v Triplett, 68 Mich. App. 531; 243 N.W.2d 665 (1976). On remand in 1976, defendant was resentenced to a term of 40-60 years imprisonment. Despite numerous claimed infirmities, the Court of Appeals affirmed that sentence in a 2-to-1 decision. People v Triplett (After Remand), 91 Mich. App. 82; 283 N.W.2d 658 (1979) (N.J. KAUFMAN, P.J., dissenting). Since 1971, therefore, defendant has been incarcerated in this state's penal facilities.

At resentencing in 1976, defendant objected to the trial court's reliance on the original presentence report which had been prepared in 1972 relative to defendant's conviction that year. Defendant contested the alleged staleness of that report since it had not been updated to reflect defendant's subsequent prison conduct and alleged progress toward rehabilitation spanning the five years of defendant's incarceration, 1972 through 1976. Indeed, although documents from two prison officials who had observed defendant during the five years of his incarceration had been submitted for review on resentencing, neither of those materials were included in this report. Nor was there any indication that a further presentence investigation had been made of defendant covering that period. Rather, the only alteration made to the 1972 report considered at defendant's 1976 resentencing was the inclusion of a brief cover sheet prepared by the Probation Department of Recorder's Court. That terse introduction merely summarized the history of defendant's case since his 1971 plea-based conviction but added no further insight into defendant's conduct since 1972.

The Court of Appeals recognized that "[a]n updated presentence report * * * would be a valuable tool in resentencing", but ruled that the "failure to include the conduct in the presentence report was * * * not prejudicial" because the resentencing judge had been informally "apprised of the defendant's prison conduct" and had "indicated the weight to be given thereto". Id., 86. Presiding Judge KAUFMAN succinctly dissented and would have directed resentencing with an updated presentence report of defendant's case since his 1971 plea-based conviction. Id., 88-89.

In People v McFarlin, 389 Mich. 557, 574; 208 N.W.2d 504 (1973), this Court emphasized its commitment to the principles that criminal punishment must fit the offender rather than the offense alone and that sound discretion must be exercised in sentencing matters. We stated:

" The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence." (Emphasis supplied.) See North Carolina v Pearce, 395 U.S. 711, 723; 89 S Ct 2072; 23 L Ed 2d 656 (1969), citing Williams v New York, 337 U.S. 241, 247; 69 S Ct 1079; 93 L Ed 1337 (1949).

To effectuate these goals, it is patent that sentencing inquiries must not be undertaken in a vacuum. Rather such inquiries must be guided by complete and detailed information regarding the offender if the sentence prescribed is to fulfill society's dual goals of rehabilitation and protection. See Williams, supra, 247.

The presentence report is a vital and necessary component of this effort to prescribe informed, individualized punishment in felony matters. People v Lee, 391 Mich. 618, 631-639; 218 N.W.2d 655 (1974). See generally Case Note, Criminal Procedure — Accuracy of Presentence Reports, 22 Wayne L Rev 899 (1976). Indeed, unlike its discretionary predecessor, 1927 PA 175, ch XI, § 14, the present act mandates that "[b]efore sentencing any person charged with a felony, * * * the probation officer shall inquire into the antecedents, character and circumstances of such person or persons, and shall report thereon in writing to such court or magistrate". (Emphasis supplied.) MCL 771.14; MSA 28.1144. See generally McFarlin, supra, 567-571. In People v Brown, 393 Mich. 174, 181; 224 N.W.2d 38 (1974), this Court explicitly recognized the critical importance of such a document in our holding that sentence may not be pronounced without the aid of a presentence report. It was further held that such a report may not be waived "even if the prosecutor, judge and defendant deemed it expedient in a particular case" to do so. Id., 181. Our case law and statutory pronouncements therefore clearly attest to the pivotal significance of both the presentetive investigation and report in the development of individualized sentencing determinations.

Although this Court has not until today passed on the requirement that a reasonably updated presentence report must be utilized in sentencing for felonies, we have repeatedly indicated that such reports must be complete, accurate, and reliable. See Wayne Circuit Judges v Wayne County, 15 Mich. App. 713, 725-726; 167 N.W.2d 337 (1969), rev'd on other grounds 383 Mich. 10; 172 N.W.2d 436 (1969); People v Brown, 393 Mich. 174, 180-181; 224 N.W.2d 38 (1974), citing People v Amos, 42 Mich. App. 629; 202 N.W.2d 486 (1972); People v Lee, supra, 635, 639; People v Malkowski, 385 Mich. 244, 249; 188 N.W.2d 559 (1971). Our holding that a reasonably updated report must be utilized at felony sentencing is merely a logical extension of such earlier indications. Indeed, our holding is a necessary corollary to the principle that sentencing must be individualized and tailored to the particular circumstances of the case and the offender at the time of sentencing; "[s]entencing a defendant without an adequate knowledge of his needs would thereby reduce the sentencing process from a first step toward rehabilitation to the dignity of a game of chance". People v Amos, 42 Mich. App. 629, 638; 202 N.W.2d 486 (1972), cited with approval in People v Brown, 393 Mich. 174, 180; 224 N.W.2d 38 (1974). As correctly recognized by both the Court of Appeals majority and dissent below:

While we here emphasize the critical role of the presentence report in a sentencing judge's consideration of the rehabilitation goal, in People v Brown, supra, 181, we noted that "the Legislature, speaking for all the people", has required its use. Then Chief Justice T.M. KAVANAGH, although in dissent, spoke the following general philosophy:
"Judges need this discretionary judgment in order to tailor the punishment to fit the needs of the individual case. The exercise of this judicial discretion at sentencing is essential to protect the interests of both the defendant and the public." Id., 185.
See People v McFarlin, supra, 574.

"The sentencing court should make every effort to individualize sentences in order to further the goal of rehabilitation. In this regard a defendant's conduct while in prison may shed considerable light on the prospect of rehabilitation. An updated presentence report which includes prison conduct would describe the defendant's most recent behavior and would be a valuable tool in resentencing. Such a procedure would not be a burden on the probation department since records are kept at prison which could easily be made available." Triplett (After Remand), supra, 86, 88. See People v Moore, 91 Mich. App. 319; 284 N.W.2d 483 (1979).

For the above reasons, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we rule that defendant's sentence should be set aside and this matter remanded for resentencing before a different judge who is to utilize an updated presentence report. The decision of the Court of Appeals is accordingly reversed.