PEOPLE OF MI V DWAYNE WALKER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 4, 1997
Plaintiff-Appellee,
v
No. 182722
Ingham County
LC No. 94-067900
DWAYNE WALKER,
Defendant-Appellant.
Before: Michael Kelly, P.J. and Saad and H.A. Beach,* JJ.
PER CURIAM.
Defendant appeals from his jury conviction of delivery of under fifty grams of a mixture
containing the controlled substance cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15.(7401) (2)(a)(iv).
The Court sentenced defendant to two to twenty years in prison. We affirm defendant's conviction and
sentence, but remand for a supplemental presentence investigation report.
Defendant first claims that the trial court erred when it permitted the prosecutor to elicit alleged
hearsay testimony from various police officers contrary to MRE 801. Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted. MRE 801(c). However, “a statement
offered to show the effect of the statement on the hearer is not hearsay and may be properly admitted.”
People v Flaherty, 165 Mich App 113, 122; 418 NW2d 695 (1987).
Defendant challenges the admissibility of four statements. Two of the statements refer to
comments that officers overheard while an undercover officer was wired. (Defendant erroneously
asserts that the other two challenged conversations involved statements that were heard over the
undercover officer's wire. In fact, this testimony was by the undercover officer himself, who was
relating a conversation he had with another officer over the police radio and a conversation he had with
the person who led him to the illegal transaction.) Based on our review of the record, we conclude that
these references were only used to show their effect on the officers and were not used as proof of the
* Circuit judge, sitting on the Court of Appeals by assignment.
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matters asserted. The prosecution carefully elicited only testimony that showed how the officers reacted
at certain times or how much time had elapsed between the officers’ actions.
Next, defendant claims that his attorney was ineffective in light of his failure to object to the
above contested evidence, his failure to clarify and correct mistakes in defendant’s presentence
investigation report (PSIR), and his failure to advise the court of any useful or favorable information
regarding defendant. To establish a claim of ineffective assistance of counsel, the defendant must show
that counsel’s performance fell below an objective standard of reasonableness, and that the
representation was so prejudicial that the defendant was deprived of a fair trial. People v Pickens, 446
Mich 298, 309; 521 NW2d 797 (1994). As noted earlier, the officers’ statements were admissible to
show their effect on the listener. We note that defendant’s counsel did object to the first of these
statements but then properly concluded that they were admissible. Furthermore, counsel did point out
errors in defendant’s PSIR regarding defendant’s credit for time served and did make a positive
statement on behalf of defendant. Defendant’s PSIR was also erroneous in that it inaccurately reported
that defendant had four, as opposed to three, prior felony convictions. However, defendant was only
scored for three prior convictions under the offense variable section of the PSIR and the trial court
indicated at sentencing that it was aware that defendant had only been convicted of three felony
convictions. Although counsel did not bring this error to the court's attention, he did not need to
because the court had indicated that it was aware of the error. Thus, defendant is not entitled to relief
on grounds that his counsel was ineffective.
Next, defendant argues that he is entitled to a corrected PSIR that reflects the trial judge’s
recognition of the inaccuracy in the report, namely that defendant was not convicted of possession of
cocaine and that defendant was appearing before the trial court on his fourth felony conviction when in
actuality he was appearing on only his third felony offense. If a sentencing court states that it will
disregard information in a PSIR challenged as inaccurate, the defendant is entitled to have the
information stricken from the report. MCL 771.14(5); MSA 28.1144(5). It is important that a PSIR
be accurate because it follows the defendant to the Department of Corrections and serves as the basis
for decisions about parole and how the defendant will be classified in the system. See People v Taylor,
146 Mich App 203, 205-206; 380 NW2d 47 (1985). However, there is no requirement that a
completely new report be prepared; a supplemental report is sufficient. People v Martinez, 210 Mich
App 199, 202; 532 NW2d 863 (1995). Here, there is no indication that a supplemental report was
ever prepared. Therefore, we remand so that a supplemental report can be prepared.
Finally, defendant asserts that his sentence is too severe and that if the trial court had considered
that he was on probation at the time of sentencing, it would have awarded a more lenient sentence. A
sentence should have an appropriate relationship to the circumstances of the offense and the offender.
See People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). Moreover, a sentence within
the sentencing guidelines range is presumed proportionate. Id. A defendant’s criminal history is a
permissible consideration for the sentence imposed. See People v Ross, 145 Mich App 483, 495; 378
NW2d 517 (1985). In imposing sentence, the trial court properly noted defendant’s prior convictions
and his drug history. Moreover, defendant's minimum sentence of two years is presumed proportionate
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because it was the suggested minimum under the Michigan Sentencing Guidelines sentence. Moreover,
MCL 768.7a(2); MSA 28.1030(1)(2): provides:
If a person is convicted and sentenced to a term of imprisonment for a felony committed
while the person was on parole from a sentence for a previous offense, the term of
imprisonment imposed for the later offense shall begin to run at the expiration of the
remaining portion of the term of imprisonment imposed for the previous offense.
This statute suggests that a defendant's parole status should have no bearing on his sentence. We hold
that defendant has not overcome the presumption of proportionality.
Conviction and sentence affirmed; remanded for preparation of supplemental PSIR.
/s/ Michael J. Kelly
/s/ Henry William Saad
/s/ Harry A. Beach
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