People v. Brown

171 Mich. App. 401 (1988) 429 N.W.2d 667

PEOPLE
v.
BROWN

Docket No. 98189.

Michigan Court of Appeals.

Decided September 8, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training and Appeals, and Rafael M. Gonzalez, Jr., Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Rolf E. Berg), for defendant on appeal.

Before: KELLY, P.J., and MacKENZIE and P.D. SCHAEFER,^[*] JJ.

PER CURIAM.

Following a bench trial, defendant was convicted of attempted burning of a dwelling house, MCL 750.72; MSA 28.267 and MCL 750.92; MSA 28.287, and assault with intent to commit murder, MCL 750.83; MSA 28.278. He was sentenced to forty to sixty months in prison on the attempt conviction and six to fifteen years in prison on the assault conviction. Defendant appeals as of right his six-to-fifteen-year sentence for assault with intent to commit murder. We remand for resentencing and the completion of an SIR for defendant's assault conviction.

Defendant raises one issue on appeal. Defendant claims that he is entitled to resentencing since no Sentencing Information Report was prepared for the offense of assault with intent to commit murder. We agree.

During sentencing, the court referred to an SIR prepared for the charge of preparation to burn, believing it to be the SIR prepared for assault with intent to commit murder. Realizing that a three-to-six-month recommended minimum sentence was not appropriate for the assault conviction, the court stated: "It's got to be a mistake. At any rate, I'm going to reject it." Defendant did not object. The court went on to render its sentence in the matter.

Initially we note that it is unclear whether an SIR was prepared for the assault charge. The record does not contain a copy. A "Sentencing Guidelines A.O.I. Report" was prepared and is contained in the file. The report, purportedly used only in the Recorder's Court, includes a score for each offense variable and a recommended sentence of 72 to 120 months. An SIR and A.O.I. report were prepared for both the attempted arson and preparation to burn offenses. The court sentenced defendant to six to fifteen years in prison on the assault with intent to murder conviction.

We find that it was error for an SIR not to have been prepared for the assault conviction. An SIR is required to be prepared for the conviction which carries the highest sentence, here, the assault conviction. People v Dowdy, 148 Mich. App. 517; 384 NW2d 820 (1986). Pursuant to Administrative Order No. 1984-1 of the Michigan Supreme Court, use of the Sentencing Guidelines Manual by the circuit court judges when imposing sentence was made mandatory for a period of one year, effective March 1, 1984. 418 Mich. lxxx (1984). This period was later extended indefinitely. Administrative Order No. 1985-2, 420 Mich. lxii (1985). Due to the mandatory nature of the guidelines' use, we do not believe that defendant has waived the error by failing to object at sentencing.

We cannot equate the A.O.I. report with the SIR. Our research shows that the issue has not been previously addressed. However, the A.O.I. report is an internal report of the Recorder's Court, has not been approved by the Supreme Court, and is not forwarded to the Corrections Department after sentencing. Further, the record does not show that the trial judge was aware of the A.O.I. report or used it in imposing sentence.

Accordingly, defendant's six-to-fifteen-year sentence for his assault conviction is vacated. The matter is remanded for resentencing. An SIR must be completed for the assault conviction prior to defendant's resentencing.

KELLY, P.J., concurs in the result only.

NOTES

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