PEOPLE OF MI V STEVEN FORREST JOHNSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 30, 2007
Plaintiff-Appellee,
V
No. 271413
Antrim Circuit Court
LC No. 06-003966-FH
STEVEN FORREST JOHNSON,
Defendant-Appellant.
Before: Cavanagh, P.J., and Donofrio and Servitto, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of breaking and entering a building with
intent to commit a felony or larceny, MCL 750.110, and two counts of larceny in a building,
MCL 750.360. The trial court sentenced defendant as a fourth habitual offender, MCL 769.12,
to serve concurrent sentences of five to 30 years for breaking and entering, and five to 15 years
for each larceny conviction, those sentences to run consecutively to an unrelated sentence.
Defendant appeals as of right, raising two sentencing issues. We affirm defendant’s sentence,
but remand for the ministerial tasks of correcting the presentence investigation report (PSIR) and
judgment of sentence. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
I. Facts
The prosecutor’s theory of the case was that, in November 2005, defendant, while an
employee of Maverick Metal Stamping, removed a digital camera from the premises, and then,
the following month, shortly after being laid off, broke into the shop and removed a computer.
On appeal, defendant challenges none of his convictions, but instead argues that the trial
court erred in basing its sentencing decision in part on defendant’s refusal to admit his guilt, and
in responding to a dispute over certain information in defendant’s PSIR simply by notating by
hand that defendant denied the allegation.
II. Refusal to Admit Guilt
We review a sentencing court’s factual findings for clear error. See MCR 2.613(C);
People v Fields, 448 Mich 58, 77-78; 528 NW2d 176 (1995). However, the proper application
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of the statutory sentencing guidelines presents a question of law, calling for review de novo.
People v Hegwood, 465 Mich 432, 436; 636 NW2d 127 (2001).
It is not in dispute that the sentencing guidelines were correctly scored, recommending a
range for defendant’s minimum sentence for breaking and entering of 19 to 76 months’
imprisonment. The minimum defendant actually received, 60 months’ imprisonment, fell within
the guidelines. “If a minimum sentence is within the appropriate guidelines sentence range, the
court of appeals shall affirm that sentence and shall not remand for resentencing absent an error
in scoring the sentencing guidelines or inaccurate information relied upon in determining the
defendant’s sentence.” MCL 769.34(10). However, an appellant may not challenge the scoring
of the sentencing guidelines or the accuracy of the information used in imposing a sentence
within the guidelines range unless the issue was raised at sentencing, in a proper motion for
resentencing, or in a proper motion to remand filed with this Court. MCL 769.34(10); MCR
6.429(C); People v Harmon, 248 Mich App 522, 530; 640 NW2d 314 (2001).
In this case, defendant exercised no mechanisms to preserve the sentencing issues.
Hence, our duty is to affirm. In any event, we find no merit in defendant’s position. At
sentencing, defense counsel reiterated that defendant “does not acknowledge his . . . guilt of
these particular crimes.” Defendant himself stated, “I did not do these charges,” adding, “I was
wrong for possessing things that come to find out were stolen, which at the time I probably knew
because the prices were low, but I didn’t steel [sic] them. I didn’t break into any building.” In
imposing sentence, the trial court stated, “when you commit the crimes and aren’t in a position to
acknowledge it, and express some remorse for it, it puts you in the position of someone who’s
pretty manipulative and deceitful.”
A sentencing court “cannot base its sentence even in part on a defendant’s refusal to
admit guilt.” People v Yennior, 399 Mich 892, 892; 282 NW2d 920 (1977) (memorandum
order). “If, however, the record shows that the court did no more than address the factor of
remorsefulness as it bore upon defendant's rehabilitation, then the court's reference to a
defendant's persistent claim of innocence will not amount to error requiring reversal.” People v
Wesley, 428 Mich 708, 713; 411 NW2d 159 (1987) (Archer, J., joined by Griffin, J.). We have
little doubt that, had the issue been raised below, the trial court would have clarified that it was
speaking to its concerns for defendant’s rehabilitation potential, not lengthening the sentence
because defendant refused to admit guilt. For these reasons, we reject this claim of error.
III. Information in the PSIR
Defendant argues that the trial court failed to satisfactorily resolve a dispute he had with
information contained within his PSIR. MCR 6.425(E)(2) provides as follows:
If any information in the presentence report is challenged, the court must
allow the parties to be heard regarding the challenge, and make a finding with
respect to the challenge or determine that a finding is unnecessary because it will
not take the challenged information into account in sentencing. If the court finds
merit in the challenge or determines that it will not take the challenged
information into account in sentencing, it must direct the probation officer to
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(a) correct or delete the challenged information in the report, which is
appropriate, and
(b) provide defendant’s lawyer with an opportunity to review the correct
report before it is sent to the Department of Corrections.
In this case, defense counsel noted that the PSIR reported that defendant had a
“psychiatric history,” that defendant denied. Asked if he suffered from multiple-personal
disorder, or schizophrenia, defendant replied, “I have epilepsy, I’ve never been psychiatrically
treated for anything.” Defense counsel suggested that the PSIR imputed to defendant facts about
defendant’s adoptive father. The PSIR reporter stated that this fact originated with an earlier
PSIR. The trial court responded as follows:
Let’s do this. I’m going to make a notation on page 7 the Defendant
denies any meaningful psychiatric history. So that when he gets down into the
prison system there’s no point in having him receive mental health services that
he doesn’t need. That hopefully will alert the Department of Corrections to check
their records. There are other things you can accomplish in the prison system
without sitting around talking to a psychologist about the schizophrenia he
doesn’t have.
***
. . . I want to bring it to their attention so if there’s an error they can just
correct it. I don’t know if you have any or not. The problem . . . when you get
sentenced as you have a number of times, the new reports build on the old reports.
And at some point if some attorney of yours wasn’t smart enough to bring this up
to the judge it got accepted as gospel and continues to follow you around. You
don’t need to be in the psychiatric wing of a prison if you’re not a mental patient.
***
. . . I’ll put that denial down here. And I’m sure [the PSIR reporter] will
flag this so the Department of Corrections doesn’t—of course if you were
schizophrenic and you were that other person right now, we wouldn’t know.
Defense counsel accepted this result without comment, thereby failing to preserve
objections to how the trial court responded to the dispute. Our review is thus limited to
ascertaining whether there was plain error affecting defendant’s substantial rights. People v
Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
The prosecutor characterizes the trial court’s response to the dispute as having corrected
the PSIR, thus indicating that the prosecutor concedes that the challenged information should not
stand. We agree with the prosecutor’s implication that the trial court disregarded the accounts of
mental illness in reaching its sentencing decision. But notating a denial while leaving the
challenged information otherwise unchanged is not among the options authorized by MCR
6.425(E)(2).
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“When a sentencing court states that it will disregard information in a presentence report
challenged as inaccurate, the defendant is entitled to have the information stricken from the
report.” People v Britt, 202 Mich App 714, 718; 505 NW2d 914 (1993), citing MCL 771.14(5).
In this case, although the trial court apparently hoped that exposing the dispute would lead to
correction of all of defendant’s penal records, defendant was and remains entitled to have the
disputed information wholly stricken from his PSIR for this case. Accordingly, we remand this
case to the trial court with instructions to strike the challenged information.
IV. Judgment of Sentence
Although the parties do not make issue of it, we take this opportunity to correct an error
in the judgment of sentence. That document indicates that each of defendant’s convictions
resulted from a plea, instead of from a jury verdict. Accordingly, we hereby direct the trial court
on remand to prepare an amended judgment of sentence reflecting convictions following from a
jury trial.
V. Conclusion
We affirm defendant’s sentence, but remand this case to the trial court for the ministerial
tasks of correcting of the PSIR and judgment of sentence in conformance with this opinion. We
do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
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