People v. Lawrence , 206 Mich. App. 378 ( 1994 )

206 Mich. App. 378 (1994) 522 N.W.2d 654

PEOPLE
v.
LAWRENCE

Docket No. 152765.

Michigan Court of Appeals.

Submitted May 18, 1994, at Detroit. Decided August 1, 1994, at 9:25 A.M.

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 Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Sherrie P. Guess), for the defendant on appeal.

Before: MICHAEL J. KELLY, P.J., and CORRIGAN and C.D. CORWIN,^[*] JJ.

MICHAEL J. KELLY, P.J.

Defendant pleaded no contest to a charge of unarmed robbery, MCL 750.530; MSA 28.798, and received a prison sentence of seven to fifteen years. He now appeals as of right. We affirm.

Defendant argues that the trial court abused its discretion in considering several previous, similar charges against defendant that were dismissed as a result of a plea bargaining agreement in a different court. While it is true that "[a] sentencing court may consider the facts underlying uncharged offenses, pending charges, and acquittals," People v Parr, 197 Mich App 41, 46; 494 NW2d 768 (1992), these facts must be supported by reliable evidence, People v Ewing (After Remand), 435 Mich 443, 455 (opinion by BRICKLEY, J.), 463 (opinion by BOYLE, J.); 458 NW2d 880 (1990). The trial court in this case relied solely on the presentencing investigation report (PSIR), which incorporated a PSIR from another case against defendant in a different court. That report revealed that defendant had agreed to plead guilty of armed robbery in exchange for the dismissal of three other theft-related charges. Although the factual allegations of the dismissed charges were not independently supported by record evidence, the trial court concluded, in large part on the basis of the dismissed charges, that defendant had a "social history" of theft-related assaults and sentenced him accordingly.

Because the PSIR from the prior case was included in the PSIR for the present offense, which defendant received, defendant had the opportunity to challenge the accuracy or relevancy of the dismissed charges at the time of sentencing in the present case. See MCL 771.14(5); MSA 28.1144(5). Neither defendant nor his attorney alleged that the charges were inaccurate or that he was innocent of them. No evidentiary hearing was requested. Counsel simply urged that there be no assumption of guilt. She suggested, "I don't think that anyone can make any assumptions about untried cases that were dismissed. There is no finding of guilt, there can be no assumption of guilt." To challenge the charges, counsel should have requested an evidentiary hearing; that she did not do so we ascribe to defense strategy. In People v Hernandez, 443 Mich 1, 18-19; 503 NW2d 629 (1993), the Supreme Court held that the remand procedure for challenging an alleged scoring error in the sentencing guidelines "should not be utilized for presentence issues that can be raised contemporaneously with the event giving rise to the challenge." The same reasoning applies by analogy to the present case. Accordingly, we conclude that defendant has failed to preserve the issue for appellate review.

With respect to the remaining sentencing challenges, we see no abuse of discretion in the trial court's attempt to fashion a punishment proportionate to the offense and the offender. People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). The sentencing guidelines recommend a minimum sentence of one to four years. The trial court gave a thorough explanation at sentencing for its departure from the guidelines. People v Adams, 195 Mich App 267; 489 NW2d 192 (1992), modified on other grounds 441 Mich 916 (1993). The court did not err in considering the fact that defendant pushed the victim. People v Duprey, 186 Mich App 313, 317; 463 NW2d 240 (1990).

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.