Opinion
Docket No. 68991.
Decided October 11, 1983. Leave to appeal denied, 419 Mich ___.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Annette M. Gray, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by John Nussbaumer), for defendant on appeal.
Before: D.E. HOLBROOK, JR., P.J., and R.B. BURNS and ALLEN, JJ.
On June 28, 1982, defendant was arraigned in circuit court and defendant entered a plea of guilty pursuant to a plea bargain. On the same date, the prosecutor filed a notice of intent to file supplemental information for prosecution as an habitual criminal. Defendant pled guilty to Count II of the information, preparation to burn real property, MCL 750.77; MSA 28.272, in return for the dismissal of Count I, felonious assault, MCL 750.82; MSA 28.277, as well as in return for not being prosecuted as an habitual offender. Thereafter sentenced to a prison term of 1-1/2 to 4 years on November 4, 1982, defendant appeals as of right.
Defendant has raised nine issues on appeal, which we have consolidated into the seven issues addressed below. While none of defendant's issues require reversal, we will briefly discuss them seriatim.
Defendant's first issue is the claim that he is entitled to reversal of his conviction and remand for further proceedings because his guilty plea was illusory and involuntary. Specifically, defendant claims that (1) the prosecutor filed a notice of intent to file supplemental information for prosecution as an habitual criminal rather than actually filing a supplemental information, and (2) the notice of intent to file habitual offender charges was insufficient because it did not inform him of "the nature of the accusation against him" and because it did not give him notice "of the possible consequences of conviction on the underlying charge".
Defendant's claims lack merit for the following reasons: (1) The prosecutor would not have been precluded from filing a supplemental information had plea negotiations failed. People v Shelton, 412 Mich. 565, 569; 315 N.W.2d 537 (1982). (2) Defendant was properly put on notice of the possibility of habitual offender supplementation from the outset of the case. See People v Nathaniel Johnson, 113 Mich. App. 414, 421-422; 317 N.W.2d 645 (1982). (3) Defendant received the benefit of dismissal of Count I and of the nonfiling and nonpursuit of an habitual offender information knowing full-well that he had three prior felony convictions and that he therefore could have been charged in a supplemental information as a second, third, or fourth felony habitual offender. People v Peete, 102 Mich. App. 34, 38-39; 301 N.W.2d 53 (1980). (4) We find defendant's plea was manifestly voluntary, Peete, supra, p 38. (5) Since no supplemental information was filed there was no formal requirement that defendant be informed of the habitual offender accusation against him or its "possible consequences". Unlike an information, a notice of intent is not formally required to inform a defendant of the "accusation" or consequences thereof.
Defendant's second claim is that his "right to speedy disposition" was violated by the fact he was sentenced on November 4, 1982, approximately four months after his June 28, 1982, guilty plea. Specifically, defendant argues he was prejudiced by the delay because he was deprived of two 90-day reductions granted to all state prison inmates pursuant to the Prison Overcrowding Emergency Powers Act, MCL 800.71 et seq.; MSA 28.1437(1) et seq. Having reviewed the record, we find that defendant, when he was in the trial court, never made an objection to sentencing or a motion to vacate sentence based upon the specific grounds he now presents. This has resulted both in the non-preservation of this issue for appeal and in the lack of a record for review. See Trail Clinic, PC v Bloch, 114 Mich. App. 700, 713; 319 N.W.2d 638 (1982); People v Mack, 112 Mich. App. 605, 613; 317 N.W.2d 190 (1981). However, were we to consider this issue we would hold it is without merit for the reasons stated in the prosecution's brief.
Defendant's third claim is that his presentence report was not updated and that the trial court erred in sentencing defendant without obtaining a new, updated presentence report. We have examined this allegation of error and find it to be without merit. We find there was an updated presentence report in this case. A September 30, 1982, presentence report was specifically prepared for the instant crime. It is replete with information concerning the instant crime and defendant. Moreover, a November 3, 1982, supplemental presentence report added even more current, updated information to the already current September report. Accordingly, we find no reversible error. See People v Triplett, 407 Mich. 510; 287 N.W.2d 165 (1980); People v Anderson, 107 Mich. App. 62, 64-65; 308 N.W.2d 662 (1981); People v Books, 95 Mich. App. 500, 504-506; 291 N.W.2d 94 (1980).
Defendant's fourth claim is that, if defendant's conviction is reversed, this Court should not allow the people to reinstate both the original charges against defendant or charge defendant as an habitual offender. Since we are not reversing defendant's conviction, this issue is not ripe for a decision by this Court. We do not give "advisory" opinions. See People v Turner, 123 Mich. App. 600; 332 N.W.2d 626 (1983).
We have examined defendant's sentencing claims which comprise the fifth issue herein and find defendant's claims to be rendered moot by this Court's order dated September 12, 1983, denying the prosecution's motion for reconsideration and/or clarification.
Defendant's sixth claim is that the trial court erred when it failed to advise defendant that if he was charged as an habitual offender, his sentence could be increased, GCR 1963, 785.7(1)(c). We disagree. There is no reversible error inherent in the trial court's failure to comply with GCR 1963, 785.7(1)(c) because defendant was not charged as an habitual offender and his sentence was not enhanced due to habitual offender status. People v Lumpkin, 85 Mich. App. 722, 724; 272 N.W.2d 585 (1978).
Finally, defendant claims he is entitled to resentencing because the November 3, 1982, supplemental presentence report withdrew the specific sentence recommendation which had been set forth in the original September 30, 1982, presentence report; thus defendant's claim is essentially that his presentence report did not include a specific written recommendation for disposition as required by MCL 771.14; MSA 28.1144 and People v Green, 123 Mich. App. 563; 332 N.W.2d 610 (1983).
Defendant and his attorney extensively exercised their right to allocution at sentencing and defendant's claim which constitutes this issue was not made at that time. Moreover, defendant never filed a motion to vacate sentence based upon this claim. This issue has not been preserved for appellate review and has been waived. People v Mack, supra; People v Harbour, 76 Mich. App. 552, 560-561; 257 N.W.2d 165 (1977), lv den 402 Mich. 832 (1977).
Assuming arguendo, however, that this issue has been preserved for appellate review, we hold the November 3, 1982, supplemental presentence report did not withdraw the specific recommendation which had been set forth in the original September 30, 1982, presentence report.
The original presentence report dated September 30, 1982, contained the following specific written recommendation:
"Recommendation
"Minimum prison term. No court costs, fines, or restitutions * * *. The respondent has credit for 107 days."
The probation agent who prepared the above-mentioned September 30, 1982, report also prepared a supplemental report dated November 3, 1982. That report contained four paragraphs. The first paragraph contained the opening sentence: "This writer has received additional information regarding the respondent and his pending felony case."
The last paragraph of the November 3, 1982, supplemental report states that the defendant was not a candidate for group psychotherapy and that the specific recommendation of group psychotherapy which had been made in the original report should be disregarded. No other recommendation in the original report was retracted by the supplemental report. Specifically, the supplemental report did not retract anything which had been set forth in the "Recommendation" section of the original September 30, 1982, presentence report.
Indeed, the November 3, 1982, supplemental report did not withdraw the September 30, 1982, report's specific "Recommendation" of a minimum prison term. Rather, the supplemental report simply added "new" information to the original September 30, 1982, presentence report and amended the September 30, 1982, report only by withdrawing the recommendation that defendant participate in group psychotherapy, because defendant would not be a candidate for same. Green, supra, is factually distinguishable from this case. Unlike the presentence report in Green, the presentence report herein made a specific recommendation (which was never withdrawn).
Affirmed.