Opinion
Docket No. 78-5282.
Decided March 4, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.
Walter L. Harrison, for defendant on appeal.
Defendant was originally charged with two counts of delivery of a controlled substance, to-wit: pentobarbital and methaqualone. On August 31, 1978, he pled guilty to one count of delivery of pentobarbital, MCL 335.341(1)(b); MSA 18.1070(41)(1)(b). On October 13, 1978, Judge Cook sentenced defendant to 12 months in the Kent County Jail. Immediately thereupon, it became apparent that the presentence report, upon which Judge Cook relied, erroneously stated that defendant had pled to possession, not delivery, and that the maximum sentence which could be imposed was two years. Judge Cook thereupon adjourned the proceedings one week in order to establish exactly what the conviction was. Defendant's bond was revoked and he was remanded to Kent County Jail.
On October 20, 1978, defendant was returned to court. Acknowledging that his previous sentencing of defendant was based upon an error contained in the presentence report, Judge Cook, over objection of defense counsel, resentenced the defendant to 3 to 7 years for delivery of pentobarbital, crediting him with the 2 days previously served. The crime for which defendant was originally and erroneously sentenced carried a maximum sentence of 2 years. MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The crime to which defendant pled guilty carries a maximum sentence of 7 years. MCL 335.341(1)(b); MSA 18.1070(41)(1)(b).
Relying upon People v Fox, 312 Mich. 577; 20 N.W.2d 732 (1945), defendant correctly argues that once the trial court imposes a valid sentence, it cannot set aside that sentence and impose a new and different one. See People v Meservey, 76 Mich. 223, 226; 42 N.W. 1133 (1889), and People v Kelley, 79 Mich. 320, 321; 44 N.W. 615 (1890). To be valid, however, the sentence must be based on accurate information. United States v Tucker, 404 U.S. 443; 92 S Ct 589; 30 L.Ed.2d 592 (1972), People v Malkowski, 385 Mich. 244, 249; 188 N.W.2d 559 (1971), People v Zachery Davis, 41 Mich. App. 683, 692; 200 N.W.2d 779 (1972). Here defendant's sentence was based on clearly erroneous information contained in the presentence report.
A sentence based upon an offense to which defendant has not pled guilty is invalid and after discovery of the error the trial court has authority to properly sentence defendant for the offense to which he did plead. In re Pardee, 327 Mich. 13, 18; 41 N.W.2d 466 (1950), and People v Johnson, 60 Mich. App. 371; 230 N.W.2d 438 (1975). People v Johnson, supra, is virtually identical to the instant case. In Johnson, defendant pled guilty to charges of gross indecency and assault with intent to rob being unarmed. Based on an error in the presentence report, he was sentenced to two concurrent 3 to 5 year sentences for gross indecency and attempted robbery not armed. When the error was subsequently discovered, the trial court changed one of defendant's two 3 to 5 year sentences to 5 to 15 years for assault with attempt to rob being unarmed. Upon appeal we affirmed. The error in the Johnson presentence report was not discovered until after sentencing and thus differs from the instant case where there was some discussion as to the existence of a possible mistake prior to sentencing. This factual disparity, however, is a distinction without a difference not requiring a different result.
Defendant also argues that in contravention of North Carolina v Pearce, 395 U.S. 711, 717; 89 S.Ct. 2072; 23 L.Ed.2d 656 (1969), he has been twice punished for the same offense. We disagree. The sentence of 3 to 7 years is a correction of the first sentence, not a double sentence. In re Pardee, supra, at 18.
Affirmed.
G.E. BOWLES, J., concurred.
I respectfully dissent.
The sentencing was as follows:
"MR. HOEKSTRA [Prosecuting Attorney]: May it please the Court, this is criminal case number 22775, the People of the State of Michigan v Thomas David Corlin. Mr. Corlin is here represented by his attorney, Wade Seys, and is here for purposes of sentencing on the charge of delivery of a controlled substance.
"There may be some confusion here, your Honor; I've been informed that the pre-sentence indicates that the charge was possession — yes, and this is a case that I, myself, handled, and I think Mr. Seys would agree that the plea, or the agreement at least, was to plead to a delivery charge.
"MR. SEYS [Defense counsel]: That's correct.
"THE COURT: Mr. Seys?
"MR. SEYS: I have read the pre-sentence report, your Honor, and I find it complete except for that one exception, and I have no further comment.
"THE COURT: Mr. Corlin, do you have anything to say before sentence is imposed?
"THE DEFENDANT: No.
"THE COURT: It is the sentence or judgment of this Court that you be remanded to the custody of the Kent County Jail for a period of 12 months, with two days credit for time previously served, that sentence to commence October 13, 1978.
"This is a final sentence or judgment of this Court and you can appeal to the Court of Appeals as a matter of right within the next 60 days, and the Clerk is now handing you a form showing you how to take or perfect that appeal, and if you cannot afford an attorney to do it, the People will provide one for you at no cost or expense to yourself." (Emphasis added.)
I would hold that the trial court imposed a valid sentence upon defendant. Both attorneys called the judge's attention to the fact that he was sentencing for delivery of a controlled substance, after which he described his sentence as a final sentence, subject to appeal. It was only after sentence that the trial court had second thoughts.
Unlike People v Johnson, this sentence is not based upon an offense to which defendant had not pled guilty. Rather, I would find this case controlled by People v Robert Jackson and People v Fox.
60 Mich. App. 371; 230 N.W.2d 438 (1975).
63 Mich. App. 249, 255; 234 N.W.2d 471 (1975).
312 Mich. 577; 20 N.W.2d 732 (1945).
I would vote to set aside the sentence subsequently imposed and to reinstate the initial sentence of 12 months in the county jail.