PEOPLE OF MI V SCOTTY LEE GAPONIK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 1, 1996
Plaintiff-Appellant,
v
No. 185144
LC Nos. 94-135958-FH;
94-135959-FH;
94-135960-FH;
94-136042-FH
SCOTTY LEE GAPONIK,
Defendant-Appellee.
Before: J.H. Gillis, P.J., and G.S. Allen and J.B. Sullivan, JJ.*
MEMORANDUM.
Defendant pleaded guilty to possession with intent to deliver less than fifty grams of cocaine,
MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv), in LC Nos. 94-135958-FH, 94-135960-FH
and 94-136042-FH, possession with intent to deliver 50 grams or more but less than 225 grams of
cocaine, MCL 333.7403(2)(a)(iii); MSA 14.15(7403)(2)(a)(iii), in LC Nos. 94-135959-FH and 94
135960-FH, and possession with intent to deliver marijuana, MCL 333.7403(2)(c); MSA
14.15(7403)(2)(c), in LC No. 94-136042-FH. Defendant was sentenced to lifetime probation on each
of the three convictions for possession with intent to deliver less than fifty grams of cocaine, consecutive
terms of 7-1/2 to 20 years’ imprisonment on each of the two convictions for possession with intent to
deliver between 50 and 225 grams of cocaine, as well as a concurrent term of two to four years’
imprisonment on the conviction for possession with intent to deliver marijuana. Plaintiff appeals as of
right. We affirm the sentences of lifetime probation for possession with intent to deliver less than 50
grams of cocaine, but remand to the trial court to make findings of fact on whether there were
substantial and compelling reasons for departing from the mandatory minimum sentences imposed for
the two convictions for possession with intent to deliver between 50 and 225 grams of cocaine. On
*Former Court of Appeals judges, sitting on the Court of Appeals by assignment pursuant to
Administrative Order 1996-3.
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remand, the trial court should also correct the Judgments of Sentence in all the cases, except LC No.
94-135959-FH, to reflect the sentences actually imposed by the trial court at sentencing and to reflect
that credit for time served is awarded against the first consecutive sentence to be served. These cases
have been decided without oral argument pursuant to MCR 7.214(E)(1)(b).
First, we affirm the sentences of lifetime probation for possession with intent to deliver less than
fifty grams of cocaine in LC Nos. 94-135958-FH, 94-135960-FH, and 94-136042-FH, because it
was not necessary for the trial court to find substantial and compelling reasons for imposing these
sentences. See People v Martinez, 448 Mich 869 (1995). Further, the trial court’s imposition of the
statutorily prescribed minimum sentences of lifetime probation was not an abuse of discretion. People v
Milbourn, 435 Mich 630, 635-636, 650-651; 461 NW2d 1 (1990); People v Williams, 189 Mich
App 400, 404; 473 NW2d 727l (1991).
However, with regard to the sentences for possession with intent to deliver between 50 and 225
grams of cocaine in LC Nos. 94-135959-FH and 94-135960-FH, our review of the sentencing
transcript reveals that the trial court failed to make any findings on the record that there were substantial
and compelling reasons for departing from the mandatory minimum sentences. MCL 333.7401(4);
MSA 14.15(7401)(4); People v Fields, 448 Mich 58, 67-69, 76-78; 528 NW2d 176 (1995).
Because the trial court did not find on the record substantial and compelling reasons to deviate from the
statutory minimum sentences and because it is not clear whether the trial court would have adopted all
or some of defendant’s reasons for departing from the statutory minimum sentences, we remand to the
trial court with directions to make actual findings of fact in these cases. See Fields, supra, p 80, where
the Court noted that “[s]entencing normally is not a job for the appellate court, the usual procedure
being to send the case back to the trial judge for resentencing if it is found that the sentence is in some
respect deficient.”
Finally, we note that the trial court erred in awarding credit for the time served against the
consecutive sentences imposed in these cases. People v Alexander (After Remand), 207 Mich App
227, 229; 523 NW2d 653 (1994); People v Watts, 186 Mich App 686, 687; 464 NW2d 715
(1991); People v Winchell, 143 Mich App 164, 169; 371 NW2d 514 (1985). On remand, the trial
court should correct the Judgments of Sentence to reflect that credit for time served is awarded against
the first consecutive sentence to be served. In addition, on remand, the trial court should correct the
Judgments of Sentence to reflect the sentences actually imposed by the trial court at sentencing. MCR
7.216(4).
Affirmed in part and remanded in part for further proceedings consistent with this opinion. We
do not retain jurisdiction.
/s/ John H. Gillis
/s/ Glenn S. Allen, Jr.
/s/ Joseph B. Sullivan
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