PEOPLE OF MI V OLATUNJI KEAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 5, 2009
Plaintiff-Appellee,
v
No. 280434
Saginaw Circuit Court
LC No. 04-025108-FC
OLATUNJI KEAN,
Defendant-Appellant.
Before: Owens, P.J., and Sawyer and Markey, JJ.
PER CURIAM.
Following a jury trial in June 2005, defendant was convicted of bank robbery, MCL
750.531(a), and third-degree fleeing and eluding a police officer, MCL 750.479(a)(3). The trial
court originally sentenced defendant, as a third habitual offender, MCL 769.11, to 8½ to 20 years
for bank robbery and 3 to 10 years for third-degree fleeing and eluding. Defendant appealed by
right, and this Court affirmed the bank robbery conviction but vacated the fleeing and eluding
conviction and remanded for resentencing. People v Kean, unpublished opinion per curiam of
the Court of Appeals, issued April 26, 2007 (Docket No 264236) (Kean I). This Court instructed
the trial court to clarify or strike the description in the presentence investigation report (PSIR) of
the circumstances surrounding finding a gun not linked to defendant, and to make a
determination as to when defendant was involved in other alleged bank robberies for the purpose
of scoring offense variable (OV) 13, MCL 777.43(1)(b). Kean I, supra at 10, 17. On remand,
the trial court’s successor sentenced defendant to 8½ to 20 years for bank robbery. Defendant
appeals by right. We affirm but remand for administrative correction of the PSIR pursuant to
MCR 6.425(E)(2).
Defendant first argues that he is entitled to be resentenced based on an updated PSIR to
reflect his current circumstances. We disagree. “prior to sentencing, the probation officer must
investigate the defendant’s background and character, verify material information, and report in
writing the results of the investigation to the court.” MCR 6.425(A); see also MCL 771.14(1).
The goal of the PSIR is to supply the sentencing court with sufficient information so that the
sentence can be appropriately adapted to the offense and the offender. People v Potrafka, 140
Mich App 749, 751; 366 NW2d 35 (1985). Therefore, it is important that a PSIR is “complete,
accurate, and reliable.” People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980).
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Defendant argues that the PSIR should have been updated to include information
regarding his good behavior, positive work record, and rehabilitation progress while imprisoned.
In People v Crook, 123 Mich App 500, 503; 333 NW2d 317 (1983), this Court held that a PSIR
of a specific age may not be “inherently defective,” but a specific change in the defendant’s
circumstances would require updating. See also Triplett, supra at 515 (emphasis added)
(observing that its holding that the defendant was entitled to a reasonably updated PSIR “is a
necessary corollary to the principle that sentencing must be individualized and tailored to the
particular circumstances of the case and the offender at the time of sentencing”). Here, however,
the record reflects that an updated presentence report, dated June 27, 2007, was prepared for the
original resentencing date of June 28, 2007. On that date, the parties appeared in court and
agreed to adjourn the sentencing proceeding to allow the prosecutor an opportunity to produce
witnesses for an evidentiary hearing regarding the scoring of OV 13. The trial court also ordered
stricken from the original PSIR that reference to a gun the police found.
On August 2, 2007, the parties again appeared in court for resentencing, and the court
conducted an evidentiary hearing regarding the scoring of OV 13. After the hearing, the trial
court ruled that OV-13 was properly scored at 25 points because the instant offense was part of a
pattern of felonious criminal activity involving 3 or more crimes against a person (bank
robberies). MCL 777.43(1)(b). Thus, the trial court determined after an evidentiary hearing that
properly scored sentence guidelines recommended a minimum sentence for defendant’s offense
of from 43 to 129 months.
Defendant and his attorney had ample opportunity between the originally scheduled date
and the adjourned sentencing date to provide the trial court with whatever supplemental material
of a positive nature that existed regarding his progress since the original sentencing. In fact,
defendant filed a pro se pleading with the trial court regarding corrections, deletions, and
additions that should be made to PSIR. The trial court at the resentence proceeding specially
acknowledged defendant’s pleading on the record, stating it had been reviewed but the court
declined to act upon it because the court thought defendant “wants to change the whole
presentence report.” Moreover, defendant had ample opportunity to inform the court during
allocution as to any positive progress he had made since the original sentence. Consequently, we
conclude that defendant is not entitled to be resentenced for the purpose of having an updated
PSIR.
Defendant also claims he is entitled to resentencing because the trial court relied on
inaccurate information in the PSIR. Specifically, defendant asserts that the PSIR was inaccurate
with respect how many aliases he was known by, defendant’s age on his first arrest, the date of
his arrest for the instant offense, his drug usage history, his participation in substance abuse
treatment programs, the number of his siblings and other childhood information, the correct
number and description of his previous convictions, and information regarding his physical and
mental condition. As noted already, defendant challenged these matters in his pro se filing.
While the trial court did not specifically say so, our review of the record convinces us that the
trial court determined that the matters defendant wished to challenge were immaterial to the
court’s determination of the appropriate sentence to impose. MCL 769.34(10) provides: “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
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sentencing guidelines or inaccurate information relied upon in determining the defendant’s
sentence.” Accordingly, we must affirm defendant’s sentence.
Nevertheless, if information in a PSIR is challenged, the court must allow the parties to
be heard and either make a finding as to the validity of the challenge or determine that it will not
consider the information. MCR 6.425(E)(2). If the court finds that the challenged information is
inaccurate or irrelevant, that finding must be made part of the record and the information must be
corrected or stricken from the report. MCR 6.425(E)(2)(a). The record does not reflect that this
occurred. Indeed, based on the copy of the PSIR filed with this Court, it does not appear that
reference to the gun found by the police was stricken from the original PSIR as ordered by the
Court. Accordingly, we remand this matter for correction of the PSIR pursuant to MCR
6.425(E)(2).
Finally, defendant argues that he is entitled to resentencing under Blakely v Washington,
542 US 296, 300; 124 S Ct 2531; 159 LEd2d 403 (2004). In People v Drohan, 475 Mich 140,
159; 715 NW2d 778 (2006), the Court held that Blakely does not apply to Michigan’s
indeterminate sentencing scheme. Accordingly, defendant is not entitled to relief on this claim.
We affirm defendant’s sentence, and but remand for the administrative purpose of
correcting of the PSIR pursuant to MCR 6.425(E)(2). We do not retain jurisdiction.
/s/ Donald S. Owens
/s/ David H. Sawyer
/s/ Jane E. Markey
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