443 Mich. 1

PEOPLE v HERNANDEZ

Docket No. 92923.

Argued October 13, 1992

(Calendar No. 5).

Decided July 13, 1993.

Mario Hernandez pleaded guilty in the Kent Circuit Court, Dennis C. Kolenda, J., of assault with intent to commit murder. After being afforded a reasonable opportunity to review the presentence report, the defendant raised no objection, and subsequently was sentenced pursuant to a plea bargain to a term of imprisonment within the range recommended in the sentencing guidelines for assault to do great bodily harm less than murder. He appealed, alleging error in the presentence scoring of an offense variable under the guidelines. The Court of Appeals, Sawyer, P.J., and Weaver and Griffin, JJ., ordered remand to the trial court to permit the defendant to move for resentencing, stating that it was compelled to do so by People v Walker, 428 Mich 261 (1987) (Docket No. 140896). The people appeal.

In an opinion by Chief Justice Cavanagh, joined by Justices Levin, Brickley, Griffin, and Mallett, the Supreme Court held:

The Court of Appeals is not compelled to grant every motion for remand. Remand is available only where the issue is shown to require development of the record or initial decision by the trial court, MCR 7.211(C)(1). If there is evidence supporting the trial court’s initial scoring of a sentencing guidelines variable, the motion may be denied. In this case, there was sufficient evidence to support the trial court’s scoring.

Justice Boyle, joined by Justice Riley, concurring, stated that to preserve a sentencing guidelines scoring issue for appeal, an objection should be raised at sentencing. The objection should be specific when a portion of the presentence report is challenged, or general when the trial court refuses to grant additional time to review the report. Remand should not be required unless development of a record is necessary to provide *2a basis for review of an issue that could not have been identified or developed in the underlying proceeding.

*1References

Am Jur 2d, Appeal and Error §§ 962, 972, 974.

See ALR Index under Remand.

*2Reversed.

Sentences — Sentencing Guidelines — Appeal • — • Remand.

Remand by the Court of Appeals to the trial court is available only where the issue is shown to require development of the record or initial decision by the trial court (MCR 7.211[C][1]).

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Gregory T. Boer, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Debra Gutierrez-McGuire) for the defendant.

Amicus Curiae:

Joan Ellerbusch Morgan and Dawn Van Hoek for the Criminal Defense Attorneys of Michigan.

Cavanagh, C.J.

We decide today whether the Court of Appeals was compelled to remand this case to the trial court to allow the defendant to file a motion for resentencing. The defendant first alleged a sentencing guidelines scoring error before the Court of Appeals by filing a motion to remand pursuant to MCR 7.211(C)(1)(a).1 We hold *3that the Court of Appeals is not compelled to grant every motion to remand. The remand procedure is available only when the issue meets the requirements set forth in MCR 7.211(C). If there is evidence supporting the judge’s initial scoring of a sentencing guidelines variable, the motion to remand may be denied. Because there is sufficient evidence in this case, we reverse the Court of Appeals decision to grant defendant’s motion to remand.

i

On February 27, 1991, defendant pleaded guilty of assault with intent to commit murder.2 The incident leading to the charge occurred on June 30, 1990. The defendant was at a party, during which several guests became involved in a dispute with the neighbors. The victim lived near the house where the party took place, but did not return home until later in the evening. When the victim returned home, the individuals at the party began hollering racial slurs. The same individuals then began throwing rocks and beer bottles at the victim’s window. The victim grabbed a stick, went out to the sidewalk, and began yelling at the individuals. Defendant then attacked the victim with a baseball bat, knocking him to the ground. Defendant continued to hit the victim with the bat. One witness testified'that the defendant continued to hit the victim until the bat broke. At *4that time, a witness pulled defendant off the victim.

On March 25, 1991, nine days before sentencing, Kent Circuit Court Judge Dennis Kolenda sent defendant’s attorney a presentence report and a letter informing the attorney:

Any additions or corrections which you would like to make, including any challenges to the Sentencing Guidelines’ scoring, should be submitted in writing by the close of business on Friday, March 29, 1991.

Judge Kolenda also provided an opportunity to meet with the parties to discuss the case before the sentence proceeding.3

Defendant was sentenced on April 3, 1991, pursuant to a plea agreement, to six to twenty years, a sentence within the sentencing guidelines range for assault with intent to do great bodily harm less than murder. Defendant received a prior record score of twenty-five and an offense score of sixty-five, which placed him in the c-iv sector of the grid. The corresponding guideline recommended a minimum sentence of three years to six years, eight months.

At sentencing, defense counsel agreed that the presentence report was "basically a fair and accurate report.” Judge Kolenda then explained,

Mr. Hernandez, I have come to the unfortunate conclusion, and I mean genuinely I think it’s unfortunate that for reasons that I don’t understand and you probably don’t understand, that you are a dangerous person at the moment and from *5whom I’ve got to protect society. You were involved in a very serious — and I think vicious is the right word — stabbing of a juvenile, and in this particular case involved a repeated senseless beating. . . .
The Prosecutor has recommended that you be sentenced under guidelines for an offense less serious than you committed, and less serious than you plead guilty to. The only way I can reject that recommendation is to set aside everything and have a trial, which I don’t think would be in the interest of the parties involved.

Defendant did not raise any objections before or during the sentencing proceeding.

Following sentencing, defendant received notice of his right to timely appeal and to request appointment of an appellate attorney within forty-two days. Defendant submitted his request for appointment of an attorney on April 10, 1991. Judge Kolenda entered a claim of appeal and order appointing an attorney on May 17, 1991. The Kent Circuit Court received the case transcript on July 25, 1991. The notice of filing a transcript on appeal was received on September 17, 1991.

The State Appellate Defender Office represented defendant during the appeal process. On September 25, 1991, defendant filed a motion in the Court of Appeals to remand the case to the circuit court to allow him to file a motion for resentencing. Defendant alleged error in the presentence scoring of fifty points for offense variable 2, which addresses "Physical Attack and/or Injury.”4 Defendant argued that the score of fifty *6points for "excessive brutality” is incorrect and that the proper score is twenty-five points because the victim only suffered bodily injury. If defendant received twenty-five points, his sentence range would have been two to five years under the c-m section of the grid.

The Court of Appeals remanded the case "only because we are compelled to do so pursuant to [People v] Walker [428 Mich 261; 407 NW2d 367 (1987)].” Unpublished order of the Court of Appeals, decided November 21, 1991 (Docket No. 140896). This Court granted the prosecutor’s motion for leave to appeal, limited to the issue whether this Court should reconsider its decision in Walker.

II

In Walker, this Court explained that a defendant must challenge the sentencing guidelines scoring in the trial court before raising the issue on appeal. The methods by which the issue may be raised in the trial court are

bringing] it to the attention of the trial court at sentencing, by a properly filed motion within the time period for filing a motion for a new trial, or by a timely filed motion for remand in the Court of Appeals. MCR 7.211(C)(1). [Id. at 262.]

This case involves MCR 7.211(C)(1), which was promulgated before the Walker decision._

*7A

The need to develop a formal remand procedure began to crystallize when this Court decided People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974), People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), and People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973).

In Moore, the defendant filed a postsentence challenge, claiming that the judge considered an invalid conviction in determining his sentence. The defendant failed to object at sentencing and did not file a motion in the trial court before pursuing the claim on appeal. Thus, the record was incomplete, which made appellate review impracticable. The prosecutor, however, supplied the necessary information to establish whether the prior convictions were valid. We determined that one conviction was invalid, and we remanded the case for resentencing because the record showed that the trial judge had considered the invalid conviction. Id. at 440.

Despite the outcome in Moore, we specifically ordered that, in future cases, "post-sentencing Tucked[ 5 ] claims should be initially decided by the sentencing judge or his successor. [The judge] is in the best position to explore and decide the factual issues and, if necessary, the defendant can then be resentenced.” Moore at 440. Moving first in the trial court is important because without a record showing the judge’s decision, appellate courts have no basis for reviewing the challenge. See People v Mattison, 26 Mich App 453, 459-461; 182 NW2d 604 (1970). When a defendant’s claim " 'depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level *8in connection with a motion for a new trial Ginther at 443, quoting People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971). Without a complete record, the appellate court must engage in fact finding, as occurred in Moore, which is not the court’s role.

Robinson established the period for filing post-judgment motions. This Court stated that "after this opinion is published, a defendant desiring reversal or a new trial because of a failure to produce an unindorsed or an indorsed witness shall, before ñling his brief on appeal, move the trial court for a new trial.” Id. at 634 (emphasis added). Allowing the defendant to file the post-judgment motion within the period for filing the appellate brief raised problems, however.

Originally, a trial court did not retain jurisdiction after sending the transcripts to the Court of Appeals, which generally occurred before expiration of the period during which the appellant could file his brief.6 The trial court’s authority to grant a motion for a new trial terminated upon sending the transcripts to the Court of Appeals. Thus, a corresponding jurisdictional rule was necessary.

Another problem evolved because defendants were required to file postjudgment motions in the *9trial court within "60 days after the entry of . . . the judgment or order appealed from . . . GCR 1963, 803.1(b)(1).7 Indigent defendants had to request and await appointment of appellate counsel before filing a postjudgment motion. Often, the "60-day period after sentencing for filing [a postjudgment motion in the trial court] had expired before appellate counsel was appointed.” Ginther at 444. Thus, the indigent defendant was barred from filing the postjudgment motion because it was deemed waived.8 In Ginther, we remanded the case and agreed with the defendant that the Court of Appeals should have ordered a remand to the trial court so that he could file a motion for a new trial. Id. at 445.

This Court promulgated a formal remand procedure in 1978. The remand rule was modeled after Moore, Robinson, and Ginther, 9 and it resolved the problems expressed in those cases. The procedure *10allows the defendant to file a motion for a new trial in the trial court before filing a brief on appeal,10 and it eliminated jurisdictional concerns by authorizing the Court of Appeals to grant a remand if the trial court already relinquished the transcripts and jurisdiction.

The procedure also resolved the Ginther concern that the indigent would involuntarily forfeit an opportunity to file a postjudgment motion. If appellate counsel is not appointed within the sixty-day period to file a postjudgment motion, after counsel is appointed, a defendant could file a claim of appeal and then file a motion to remand within the period for filing the appellate brief.

On the basis of the remand rule, if the trial court would grant the motion for a new trial, the Court of Appeals may remand the case. If the trial court would not grant the motion, the Court of Appeals may decide to remand on the basis of GCR 1963, 817.6(l).11 Evidently, years before Walker, the remand procedure could be used to raise issues in the trial court before seeking appellate review. Although the rules were amended between the time the remand procedure originally was promulgated and the time Walker was decided, the substance of the rule remained the same.12

*11B

The prosecutor questions whether Walker was correct in stating that challenges of sentencing guidelines scoring also could be raised in the trial court pursuant to the remand procedure.

Generally, allowing postjudgment challenges to issues not raised at trial is necessary where an objection or challenge could not be raised contemporaneously with the occurrence of the event giving rise to the challenge. The cases from which the remand procedure evolved illustrate this point. For example, ineffective assistance of counsel claims generally cannot be raised contemporaneously because it is not clear until the close of trial whether there may be a reasonable claim of ineffective assistance of counsel. Similarly, when newly discovered evidence arises, or it is unclear whether the sentence was based on inaccurate information,13 or the prosecutor’s failure to provide an indorsed witness is not discovered until after *12trial, the need for postjudgment motions is evident.

On the other hand, objections to hearsay, admission of evidence pursuant to an illegal search, and other similar issues generally can and should be recognized so that contemporaneous objection is possible. If a contemporaneous objection requirement is unreasonable or impossible, then postjudgment challenges should be permitted. When Walker was decided, if a postjudgment challenge was permitted, then the remand rule was one method by which to raise that challenge first in the trial court.14

The prosecutor argues that sentencing guidelines scoring challenges should be subject to the contemporaneous objection requirement. The State Appellate Defender Office responds that postjudgment challenges are necessary because too frequently the defendant does not receive the presentence report until the day of sentencing. Thus, the defendant and counsel cannot adequately review the report to determine if an objection should be raised until after sentencing._

*13We agree that when Walker was decided that problem may have existed.15 Since Walker, the court rules have been amended. MCR 6.425(B) requires the trial court to permit the defendant to review the presentence report "a reasonable time before the day of sentencing.” As the amici curiae observed, however, not all judges have the same notion of what is a reasonable time. While some courts provide the defendant a copy of the presentence report several days before sentencing, other courts provide a copy the day of sentencing, sometimes shortly before sentencing. Some defendants are not given a reasonable time to review the report. Thus, at the time of Hernandez, the necessity of permitting postjudgment challenges to the scoring still existed.16

*14III

Although we stated in Walker that postjudgment challenges to the sentencing guidelines scoring are permitted, we also stated that the remand procedure was available when "a defendant properly raises a challenge to the manner in which the guidelines are scored.” Id. at 267. The Court did not explain, however,. what the defendant must show to raise a challenge that warrants granting the motion to remand.

The Michigan Court Rules again were amended in 1989. The amendments affected the remand procedure and defendant Hernandez’ right to file a postjudgment challenge to the sentencing guidelines scoring. MCR 6.429(C) was added in response to Walker 17 and it enables the defendant to challenge the sentence guidelines scoring:

(1) at sentencing, or
(2) by a motion for resentencing filed
(a) within 42 days after entry of the judgment,[18] or
(b) in accordance with the procedure set forth in MCR 7.208(B);[19] or
(3) by a timely filed motion to remand in the Court of Appeals under MCR 7.211(C)(1).

This case involves MCR 7.211(C)(1), which has *15limitations regarding what cases must be remanded for filing a motion for resentencing in the trial court.20 The remand procedure is not mandatory. MCR 7.208 already accords defendant twenty-eight days after the commencement of the time for filing a brief on appeal to file various motions in the trial court without the permission of the Court of Appeals. Requiring remand merely on the basis of such a filing would render meaningless the requirement of seeking the permission of the Court of Appeals if the defendant misses the twenty-eight day deadline. A mandatory remand also would require the Court of Appeals to remand every challenge, no matter how frivolous.21

Accordingly, when the remand procedure is available, it is not mandatory, but requires discretion by the Court of Appeals in determining when remand is appropriate. The trial court here did not certify that it would grant a motion for a new trial. Therefore, the remand motion only could be granted under MCR 7.211(C)(1)(a). Although this Court has addressed situations in which development of a record is necessary,22 it has not discussed the alternative requirement that the issue be one *16that "should be initially decided by the trial court.”23 We now undertake that task in the context of a challenge to the sentencing guidelines scoring.

A

An issue that initially should be decided by the trial court is different from an issue that must be raised first in the trial court to be preserved for appeal.24 The former, as here, requires that the trial judge make the initial scoring decision. The latter requires that the defendant first raise an objection to the judge’s scoring in the trial court or it is deemed waived.

Although, the initial scoring of the sentencing guidelines must be completed by the trial court, a remand to challenge the judge’s scoring of the sentencing guidelines is unnecessary where there is evidence to support the judge’s initial scoring. The Court of Appeals decision in People v Green, 152 Mich App 16, 18; 391 NW2d 507 (1986), correctly recognized that the judge’s scoring of the sentencing guidelines will be upheld if there is evidence to support the score.25 If the judge made *17an initial scoring decision that is supported by the evidence, then remand would not serve a useful purpose.26 See, e.g., People v Degraffenreid, 19 Mich App 702, 719; 173 NW2d 317 (1969). This case presents an excellent example of when it is unnecessary to remand.

B

During the hearing in which the trial judge accepted the defendant’s guilty plea, the following discussion occurred:

The Court: During the course of that fight, I understand you struck him on the head several times. I’ve heard the number as many as ten, but at least several times. Is that correct?
The Defendant: Yeah.
The Court: You did hit him on the head several times with that ball bat?
The Defendant: Yes.
The Court: And these weren’t just little taps; you took a good swing.
The Defendant: Yes.

Defendant all but admitted that he used excessive brutality several times when using "good swings” of the baseball bat to hit the victim on the head.

The presentence report included the statement that defendant "continued to beat the victim with a baseball bat after the victim was down.” Witnesses stated that "Hernandez continued to beat him with the bat across the head and body until *18the bat broke, then jabbed him repeatedly with the splintered end.” Terry Major told the detective that he "pulled Hernandez off of the victim because the beating was so savage.”

Defendant’s response regarding the continued beating was "I hit him a couple of times after he was down ... on impulse. The guy came after me. I was protecting myself.” Although there is testimony to the contrary, even if defendant’s claim of protecting himself were true, he may only use force reasonably necessary to protect himself. Any additional force would be considered excessive. Here the additional force was more than excessive, it was brutal.

The preliminary hearing, the presentence report, and the trial judge’s discussion with defendant during the plea hearing, led the judge to explain at sentencing that he believed the incident to be "very serious — and I think vicious is the right word — stabbing of a juvenile, and in this particular case involved a repeated senseless beating.” The victim suffered serious injuries, including fiftéen stitches in his head, a broken finger, and torn cartilage in his wrist.

The Court of Appeals could glean from the record evidence supporting the judge’s initial scoring of fifty points for excessive brutality.27 Consequently, the requirements of MCR 7.211(C)(1)(a) were not established, and denying the motion to remand would have been appropriate.

iv

The remand procedure should not be utilized for *19presentence issues that can be raised contemporaneously with the event giving rise to the challenge. To ensure fairness, in light of amici curiae’s observations, we will consider amending the court rules to require trial judges to provide defendants with copies of reports and scoring within a specific number of days before sentencing.28 If a trial judge complies with the requirement, then the defendant will be required to object before or at sentencing to preserve a challenge to the scoring. If the judge fails to comply, then the defendant will have available a postsentencing challenge pursuant to MCR 6.429. On the basis of the intended amendment to the court rules, the remand procedure will no longer be necessary for sentencing guidelines scoring challenges.

MCR 7.208 also supports limiting use of the remand procedure. The staff comment to MCR 7.208(B) explains that the rule was created in response to the addition of MCR 6.425(F)(3).29 MCR *206.425(F)(3) was created to "substantially accelerate the commencement of appeals by having the [request for the appointment of an attorney] also act as a claim of appeal in cases in which the defendant’s request for a lawyer was timely . . . .” Staff Comment, 1989.

The increasing backlog in the Court of Appeals docket has become a matter of great concern over the years. MCR 6.425(F)(3) was one method of expediting disposition of appeals, and MCR 7.208(B) was another. Interestingly, MCR 7.208(B) was promulgated for the same jurisdictional concerns that led to the development of the remand procedure.30 Thus, MCR 7.208(B) was created to serve additional purposes, one of which was easing the Court of Appeals docket by eliminating the right to seek a motion to remand to preserve an issue for appeal.

It makes little sense to require the issue to be preserved for appeal and then to require the Court of Appeals to remand a case to preserve the issue upon the mere filing of a motion to remand. Because of jurisdictional concerns, we had to overlook that anomaly; but today, MCR 7.208(B) ad*21dresses the jurisdictional concerns.31 The remand procedure is necessary only for those issues that are preserved, but still requires additional proceedings in the trial court before being resolved.

v

In sum, we hold today that the Court of Appeals is not compelled to grant every motion to remand. Only those issues that meet the requirements of MCR 7.211(C)(1) must be remanded. The motion to remand may be denied if there is evidence supporting the judge’s initial scoring of the challenged sentence guidelines variable. There clearly is evidence supporting the judge’s initial scoring of fifty points for excessive brutality.

Accordingly, we reverse the Court of Appeals decision to grant defendant’s motion to remand.

Levin, Brickley, Griffin, and Mallett, JJ., concurred with Cavanagh, C.J.

Boyle, J.

(concurring). I agree with the result and much of the analysis present in Chief Justice Cavanagh’s opinion. However, I would go further and require an objection at sentencing to preserve *22a sentencing guidelines issue. This holding and an amendment to the rules would serve to alleviate congestion in the Court of Appeals, avoid delay and the expenditure of trial court resources in dealing with circuitous remand orders, make the treatment of all defendants, indigent or not, equal, and cure the anomalous result that a defendant who failed to object at sentencing could gain a remand while a defendant who failed to object to unconstitutionally seized evidence could not. Most importantly, it would repose the responsibility for accurate application of sentencing guidelines in the sentencing judge and trial counsel.

An objection must either be specific, when challenge is made to a portion of the presentence report, or general, when a sentencing judge refuses to grant additional time to a defendant who objects to the lack of a "reasonable time” to review the presentence report under MCR 6.425(B). Thus, I would now amend MCR 6.429(C) to read as follows:

(C) Preservation of Guidelines Scoring Issue. A party may not raise on appeal an issue challenging the scoring of the sentencing guidelines unless the party has raised the issue
(1) at sentencing.

Remands should not be required unless development of a record is necessary to provide a basis for review of an issue that could not have been identified and developed in the underlying proceeding.

Riley, J., concurred with Boyle, J.

People v. Hernandez
443 Mich. 1

Case Details

Name
People v. Hernandez
Decision Date
Jul 13, 1993
Citations

443 Mich. 1

Jurisdiction
Michigan

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