Opinion
Docket No. 51744.
Decided July 7, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Gerald M. Lorence, for defendant on appeal.
Before: DANHOF, C.J., and J.H. GILLIS and D.E. HOLBROOK, JR., JJ.
On March 9, 1977, defendant was convicted by a Detroit Recorder's Court jury of two counts of delivery of heroin. MCL 335.341; MSA 18.1070(41). He was sentenced by Judge Patricia J. Boyle on March 28, 1977, to two concurrent 15-to-20 year prison terms. Although this Court affirmed defendant's convictions, People v Cochran, 84 Mich. App. 710; 270 N.W.2d 502 (1978), the Supreme Court vacated defendant's sentences for noncompliance with the two-thirds indeterminate sentence rule in People v Tanner, 387 Mich. 683, 690; 199 N.W.2d 202 (1972):
Now MCL 333.7401; MSA 14.15(7401).
"Leave to appeal considered December 7, 1979, and, pursuant to GCR 1963, 865.1(7), in lieu of leave to appeal, we vacate defendant's sentences and remand the case to Detroit Recorder's Court. If it was the trial judge's intent to impose maximum indeterminate sentences, then the minimums of 15 years must be corrected to conform with the two-thirds indeterminate sentence rule. If that was not the intent, then the trial judge shall redetermine the minimum sentences to be imposed. See Brinson v Genesee Circuit Judge, 403 Mich. 676, 679 (1978). In all other respects the application is denied. We retain no further jurisdiction." People v Cochran, 407 Mich. 934; 285 N.W.2d 659 (1979).
On remand, the case was assigned to Judge Michael F. Sapala. Judge Sapala determined that Judge Boyle had intended to sentence defendant to the maximum terms allowed and, therefore, he corrected the sentences by imposing concurrent 13-to-20 year terms. Defendant appeals as of right.
Defendant initially argues that Judge Boyle failed to evaluate him as an individual, but instead sentenced him based upon her own predilection with regard to heroin distribution as a community problem. In People v Triplett, 407 Mich. 510, 513; 287 N.W.2d 165 (1980), the Supreme Court stressed that a "sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitative potential".
Defendant's claim is meritless. It is true that Judge Boyle noted that the distribution of heroin, as contributed to by defendant, was a particular societal problem. However, her remarks in that vein were only in response to defense counsel's contention that defendant's actions had a small impact on the problem. Judge Boyle went on to stress defendant's prior conviction for possession of heroin with intent to deliver and the relatively short time between his being paroled and the present offense. The sentence was sufficiently tailored to the circumstances of the case and defendant.
Defendant also urges that Judge Sapala erred in failing to order an updated presentence report. See Triplett, supra. This argument is likewise without merit. The order of remand from the Supreme Court directed Judge Sapala to initially determine whether his predecessor had intended to impose maximum indeterminate sentences. Since he concluded that Judge Boyle had so intended, he then needed only to correct the sentences to comply with the two-thirds rule. An updated presentence report would have been necessary only had Judge Sapala determined a contrary intent and been required to actually resentence.
Affirmed.