PEOPLE OF MI V TIMOTHY LEE MCGHEEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 13, 1998
Calhoun Circuit Court
LC No. 96-000551 FC
TIMOTHY LEE MCGHEE,
Before: Whitbeck, P.J., and McDonald and T. G. Hicks*, JJ.
Following his conviction by jury of assault with intent to rob while armed, MCL 750.89; MSA
28.284, the court sentenced defendant to an enhanced term of imprisonment of four to ten years,
reflecting his status as a second felony offender, MCL 769.10; MSA 28.1082. Defendant appeals as
of right. We remand for further proceedings consistent with this opinion.
The sentencing court did not abuse its sentencing discretion by imposing a disproportionately
severe sentence, particularly where the instant offense was committed while defendant was on probation
and where the instant offense represents an escalation in the seriousness of defendant’s criminal
behavior. People v Hansford (After Remand), 454 Mich 320, 326; 562 NW2d 460 (1997).
However, the trial court erred by failing to properly resolve defendant’s challenges to certain
information contained in the presentence report. In response to these challenges, the trial court merely
stated, “I take the Defendant’s statements into account with respect to his dispute with the pre-sentence
report. There are a couple of things which are, however, nonetheless undisputed in this case and very
probative.” These remarks are ambiguous and fail to reveal whether the trial court considered or
disregarded the challenged information in sentencing defendant. Thus, the trial court failed to comply
with the requirement of MCR 6.425(D)(3) to either make a finding with regard to challenged
information in a presentence report or determine that such a finding is unnecessary because it will
disregard the challenged information in sentencing. We note that, if the trial court meant to state that it
* Circuit judge, sitting on the Court of Appeals by assignment.
was disregarding the challenged information, then it should have ordered that information deleted from
the presentence report pursuant to MCR 6.425(D)(3).
Accordingly, we remand this case to the trial court for the trial court to clarify whether the
challenged information in the presentence report played any part in its sentencing decision. People v
Landis, 197 Mich App 217, 219; 494 NW2d 865 (1992). If on remand, the trial court determines
that any part of the challenged information in the presentence report played a role in its sentencing
decision, then defendant shall be resentenced and the trial court shall properly resolve any pertinent
challenges pursuant to MCR 6.425(D)(3). Landis, supra. However, if the trial court determines on
remand that none of the challenged information in the presentence report was considered in its
sentencing decision, then defendant’s sentence shall not be disturbed, but the trial court shall order the
challenged information stricken from the presentence report in accordance with MCR 6.425(D)(3).
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Gary R. McDonald
/s/ Timothy G. Hicks