PEOPLE OF MI V CARL H HALL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 16, 2003
Plaintiff-Appellee,
v
No. 242369
Wayne Circuit Court
LC No. 01-008679
CARL H. HALL,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Neff and White, JJ.
MEMORANDUM.
Following a bench trial, defendant was convicted of assault with intent to commit great
bodily harm, MCL 750.84, and possession of a firearm during the commission of a felony, MCL
750.227b. He was sentenced as an habitual offender, fourth offense, MCL 769.12, to life
imprisonment for the assault and to a five year prison term for a second felony – firearm offense.
We vacate defendant’s sentence and remand for resentencing.
On appeal, defendant argues that the trial court erred in departing from the sentencing
guidelines without stating a substantial and compelling reason. We agree.
A sentencing court may depart from the appropriate sentence range established under the
sentencing guidelines if the court has a substantial and compelling reason for the departure, and
states the reason on the record. MCL 769.34(3). The existence of a particular factor is a factual
determination reviewed for clear error. People v Babcock, 469 Mich 247, 264; 666 NW2d 231
(2003). The determination that a factor is objective and verifiable is reviewed as a matter of law.
Id. The determination that the objective and verifiable factors constitute substantial and
compelling reasons to depart from the statutory minimum sentence is reviewed for abuse of
discretion. Id., 265.
The trial court erred in finding that the guidelines do not apply to habitual offender
sentences. While that was true with the judicial guidelines, People v Hansford (After Remand),
454 Mich 320, 324; 562 NW2d 460 (1997), the legislative guidelines include habitual offender
sentences. MCL 777.21(3). The court’s failure to acknowledge its departure requires a remand
for resentencing. People v Hornsby, 251 Mich App 462, 474; 650 NW2d 700 (2002).
The principle of proportionality is relevant to the determination whether there is a
substantial and compelling reason for a departure. Babcock, supra, 262-264. Given the
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maximum guidelines range of seventy-six months, and the fact that defendant’s previous
convictions were already considered in arriving at that range, the sentence of life imprisonment
is disproportionate.
On remand, the court must respond to challenges to the accuracy of information in a
presentence report. People v Spanke, 254 Mich App 642, 648; 658 NW2d 504 (2003). The
court may determine the accuracy of the information, accept defendant’s version, or simply
disregard the information. Id. Should the court choose the last option, it must clearly indicate
that it did not consider the alleged inaccuracy in determining the sentence. Id., 649. If the
information is inaccurate or irrelevant, the court must strike the information from the PSIR
before sending it to the Department of Corrections. Id.
Defendant’s sentences are vacated, and the matter is remanded for resentencing. We do
not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Janet T. Neff
/s/ Helene N. White
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