Opinion
Docket No. 91006.
Decided September 24, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Mardi Crawford), for defendant.
Before: J.H. GILLIS, P.J., and WAHLS AND SULLIVAN, JJ.
Defendant pled guilty to one count of first-degree criminal sexual conduct, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e). The trial court sentenced defendant to from eighteen to thirty years imprisonment. Defendant subsequently moved to withdraw his guilty plea and for resentencing. The trial court denied both motions. Defendant appeals. We vacate defendant's original sentence and order defendant to serve a sentence of from fifteen to thirty years imprisonment. MCR 7.216(A)(7).
Defendant claims he is entitled to resentencing. We agree. Prior to our Supreme Court's decision in People v. Killebrew, 416 Mich. 189; 330 N.W.2d 834 (1982), the trial court indicated to defendant that he would receive a sentence of from fifteen to thirty years imprisonment. Defendant agreed to plead guilty if he received a fifteen-year minimum sentence. When the guilty plea was taken, however, the circuit court indicated that because of the effect of granting disciplinary credits, MCL 800.33; MSA 28.1403, defendant's minimum sentence would have to be increased to provide for eighteen years imprisonment to ensure defendant would serve fifteen years. Defendant was given the opportunity to withdraw his guilty plea, but he did not do so. Instead, defendant pled guilty, claiming that he was entitled to the fifteen-year minimum sentence. As noted above, defendant was sentenced to a minimum of eighteen years imprisonment.
This Court has held that trial courts should not consider the application of the provisions of the Prison Overcrowding Emergency Powers Act (POEPA), MCL 800.71 et seq.; MSA 28.1437(1) et seq., when sentencing a defendant because the frequency of the use of the POEPA is speculative. People v. Fleming, 142 Mich. App. 119, 125-126; 369 N.W.2d 499 (1985), lv gtd 424 Mich. 877 (1986); People v. Humble, 146 Mich. App. 198, 200-201; 379 N.W.2d 422 (1985); People v. Lundy, 145 Mich. App. 847; 378 N.W.2d 622 (1985). We believe this same rationale applies to disciplinary credits which a defendant may or may not receive. Fleming, supra. Hence we vacate defendant's eighteen-year minimum prison sentence and impose a prison sentence of from fifteen to thirty years, not because defendant is entitled to specific performance of the original offer made to him, but because the trial court improperly considered the effect of disciplinary credits, which defendant may or may not receive, when it sentenced him.
Defendant's other issues regarding his sentence are meritless. The trial court did consider the possibility of rehabilitation in imposing defendant's sentence, specifically noting that defendant would receive counselling while in prison. Moreover, the trial court ignored the information in the presentence report which defendant claimed was inaccurate. In lieu of holding an evidentiary hearing or accepting a defendant's unsworn statement that information contained in a presentence report is inaccurate, a trial court may properly ignore the alleged misinformation while sentencing. People v. Gray, 125 Mich. App. 482, 487; 336 N.W.2d 491 (1983). Hence the trial court's action in this case was proper.
Defendant's original sentence is vacated and a new sentence of from fifteen to thirty years imprisonment is imposed.