People v. Bailey , 218 Mich. App. 645 ( 1996 )

554 N.W.2d 391 (1996) 218 Mich. App. 645

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Richard Lee BAILEY, Defendant-Appellant.

Docket No. 196682.

Court of Appeals of Michigan.

Submitted August 5, 1996, at Lansing. Decided September 10, 1996, at 9:00 a.m. Released for Publication October 25, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Janet A. Napp, Assistant Prosecuting Attorney, for people.

Joan Ellerbusch Morgan, Detroit, for defendant on appeal.

Before DOCTOROFF, C.J., and TAYLOR and YOUNG, JJ.

ON REMAND

TAYLOR, Presiding Judge.

Defendant was convicted of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553. In an earlier opinion, People v. Bailey, 207 Mich.App. 8, 523 N.W.2d 798 (1994), we reversed defendant's conviction, disagreeing with, but being constrained by, People v. Boles, 420 Mich. 851, 358 N.W.2d 894 (1984). The Supreme Court granted leave to appeal, overruled People v. Boles, and reinstated defendant's conviction. People v. Bailey, 451 Mich. 657, 682, n. 15, 549 N.W.2d 325 (1996). On defendant's motion for rehearing, the Supreme Court amended its opinion to remand the case to us for consideration of the issues that defendant raised in this Court but were not addressed in our previous opinion. 453 Mich. 1204, 551 N.W.2d 163 (1996). We affirm.

The only issues defendant raised in his initial appeal to this Court that were not addressed in our earlier opinion related to sentencing. On February 5, 1992, defendant received a prison sentence of five to fifteen years, with credit for 205 days served.

Defendant argues that the trial court did not articulate its reasons for the sentence it imposed. This claim is erroneous. The trial court specifically cited the sentencing guidelines before imposing a sentence within those guidelines. This satisfied the articulation requirement. People v. Lawson, 195 Mich.App. 76, 77, 489 N.W.2d 147 (1992).

Defendant also claims that his sentence was disproportionate. We disagree. Defendant's sentence was within the sentencing guidelines range and was presumptively proportionate. People v. Broden, 428 Mich. 343, 354-355, 408 N.W.2d 789 (1987). We have reviewed the record and conclude that defendant has failed to overcome the presumption of proportionality. People v. Price, 214 Mich.App. 538, 548, 543 N.W.2d 49 (1995). We are further satisfied that defendant's five-year minimum sentence reflected the seriousness of the matter. People v. Houston, 448 Mich. 312, 320, 532 N.W.2d 508 (1995).

Defendant further asserts that his sentence was based on two instances of inaccurate information in the presentence information report and that counsel was ineffective because he did not object to this inaccurate information. We find that defendant is not entitled to any relief. A defendant may not raise an issue challenging the accuracy of the presentence report unless the issue was raised at or before sentencing. MCR 6.429(C).^[1] Defendant did not contest the accuracy of the challenged portions of the presentence report at sentencing. Thus, this issue is not preserved for appeal. People v. Rodriguez, 192 Mich.App. 1, 5, 480 N.W.2d 287 (1991). We also reject the claim that counsel was ineffective for failing to object to the two alleged inaccuracies. The record indicates that defense counsel reviewed the presentence report with defendant and made objections related to other alleged inaccuracies at sentencing. Therefore, we find that defendant's counsel was effective. People v. Armendarez, 188 Mich.App. 61, 74-75, 468 N.W.2d 893 (1991).

Finally, we note that defendant's sentencing issues are arguably moot because it appears that he has already served his minimum sentence. People v. Rutherford, 208 Mich.App. 198, 204, 526 N.W.2d 620 (1994).

Affirmed.

NOTES

[1] This court rule was amended on January 26, 1996, to provide that an objection must be made at or before sentencing or as soon as the inaccuracy reasonably could have been discovered.