People v. Green

152 Mich. App. 16 (1986) 391 N.W.2d 507

PEOPLE
v.
GREEN

Docket No. 85353.

Michigan Court of Appeals.

Decided May 20, 1986.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for the people.

Catchick & Dodge (by David A. Dodge), for defendant.

Before: D.E. HOLBROOK, JR., P.J., and SHEPHERD and D.A. ROBERSON,^[*] JJ.

PER CURIAM.

Defendant pled guilty to voluntary manslaughter, MCL 750.321; MSA 28.553, pursuant to a plea agreement to dismiss a count of second-degree murder. In calculating the variables for the Sentencing Guidelines grid, the trial court assessed points for intent to kill or injure and exploitation of the victim's vulnerability, and refused to consider the mitigation variable for avoiding harm, provocation/passion, and mistake/inadvertance. Under the defendant's proposed scoring, the Sentencing Guidelines would provide for a minimum sentence of twelve to forty-eight months. The trial court's scoring resulted in a minimum of sixty to ninety-six months. Defendant was sentenced to serve eight to fifteen years in prison.

Though the defendant states his first issue on appeal as being whether the trial court is obligated to respond to alleged inaccuracies in the Sentencing Information Report, we note that the trial court did in fact respond to the alleged inaccuracies raised by defense counsel. The argument more properly phrased appears to be whether the trial court must review the alleged inaccuracies in the same manner as inaccuracies in a presentence report,^[1] or whether the court may draw reasonable inferences from evidence contained in the record of the preliminary examination, as was done by the trial court in the present case. We conclude that the trial court did not err by resolving the dispute in this manner.

Presentence reports are required by statute, MCL 771.14; MSA 28.1144, and review by the trial court of alleged inaccuracies in them is required under both the statute and MCR 6.101(K). The Sentencing Guidelines, however, were promulgated under Administrative Order No. 1984-1, 418 Mich lxxx. The guidelines are to serve merely as a tool for the trial judge in the exercise of his sentencing discretion. People v McLeod, 143 Mich App 262; 372 NW2d 526 (1985). See, also, Statement of Purpose, Michigan Sentencing Guidelines Manual. The adoption of the Sentencing Guidelines by the Supreme Court did not give substantive rights to the defendant.

We conclude that a trial court's scoring of points for offense variables will be upheld if there is any evidence that supports that scoring. People v Clark, 147 Mich App 237; 382 NW2d 759 (1985). Accordingly, evidence contained in the preliminary examination record may be used to support the trial court's scoring of offense variables. Since there was some evidence to support all the scoring decisions of the trial court, the recommended sentencing range as calculated by the trial court withstands our limited appellate review.

Defendant finally asserts that the sentence imposed should shock the judicial conscience of this Court under People v Coles, 417 Mich 523; 339 NW2d 440 (1983). The sentence imposed was within the guideline range. We conclude that it does not shock our judicial conscience.

Affirmed.

NOTES

[*] Recorder's court judge, sitting on the Court of Appeals by assignment.

[1] When confronted with alleged inaccuracies in the presentence report, the trial court must 1) hold an evidentiary hearing on the contested information, 2) accept the defendant's version of the facts, or 3) ignore the alleged inaccurate information. People v Gray, 125 Mich App 482, 487; 336 NW2d 491 (1983).