6.12Objections to Accuracy or Content of the PSIR

Due process requires that a defendant’s sentence be based on accurate information and that the defendant be given an opportunity at sentencing to challenge the accuracy of the information on which the trial court bases the defendant’s sentence. People v Eason, 435 Mich 228, 233 (1990). A sentence based on inaccurate information implicates a defendant’s constitutional right to due process. US Const, Am XIV; Const 1963, art 1, § 17; Townsend v Burke, 334 US 736, 740-741 (1948); People v Smith, 423 Mich 427, 453-454 (1985). Accordingly, a sentence is invalid if it is based on inaccurate information.¹ People v Miles, 454 Mich 90, 96 (1997).

At the sentencing hearing, the court must “give each party an opportunity to explain, or challenge the accuracy or relevancy of, any information in the presentence report, and resolve any challenges in accordance with the procedure set forth in [MCR 6.425(D)(2)].” MCR 6.425(D)(1)(b). See also MCL 771.14(6) (“At the time of sentencing, either party may challenge, on the record, the accuracy or relevancy of any information contained in the presentence investigation report.”).² 

A.Procedure for Resolving Challenges

Challenges to the accuracy or relevancy of information in the PSIR must be made on the record. MCL 771.14(6); MCR 6.425(D)(1)(b).

The court may adjourn the sentencing hearing to permit the parties to prepare a challenge or a response to a challenge. MCL 771.14(6).

The sentencing court is obligated to respond to all challenges raised using any of the discretionary methods approved under the statute, court rule, and relevant case law. People v McAllister, 241 Mich App 466, 473 (2000); MCL 771.14(6); MCR 6.425(D)(1)(b); MCR 6.425(D)(2)(a). If the court finds a correction is warranted, “it must order the probation officer to correct the report.” MCR 6.425(D)(2)(a).

1.Statute

“If the court finds on the record that the challenged information is inaccurate or irrelevant, that finding shall be made a part of the record, the presentence investigation report shall be amended, and the inaccurate or irrelevant information shall be stricken accordingly before the report is transmitted to the department of corrections.” MCL 771.14(6).

2.Court Rule

“If any information in the presentence report is challenged, the court must allow the parties to be heard regarding the challenge, and make a finding with respect to the challenge or determine that a finding is unnecessary because it will not take the challenged information into account in sentencing. If the court finds merit in the challenge, determines that it will not take the challenged information into account in sentencing, or otherwise determines that the report should be corrected, it must order the probation officer to correct the report. If ordered to correct the report, the probation officer must provide defendant’s lawyer with an opportunity to review the corrected report before it is sent to the Department of Corrections, certify that the report has been corrected, and ensure that no prior version of the report is used for classification, programming, or parole purposes.” MCR 6.425(D)(2)(a).

3.Caselaw

Duty to respond. “The sentencing court must respond to challenges to the accuracy of information in a presentence report; however, the court has wide latitude in responding to these challenges.” People v Spanke, 254 Mich App 642, 648 (2003), overruled in part on other grounds by People v Barrera, 500 Mich 14, 17 (2017).³ “The court may determine the accuracy of the information, accept the defendant’s version, or simply disregard the challenged information.” Id. See also People v Brooks, 169 Mich App 360, 364-365 (1988) (the sentencing “court may hold an evidentiary hearing to determine the report’s accuracy, may accept the defendant’s unsworn statement, or may ignore the alleged misinformation while sentencing”). A trial court’s duty to respond to PSIR challenges “involves something more than acknowledging that [it] has heard the defendant’s claims regarding the contents of a presentence report.” People v Garvie, 148 Mich App 444, 455 (1986) (quotation marks and citation omitted). The trial court “must indicate, in exercising [its] discretion, whether [it] believes those claims have merit.” Id. (quotation marks and citation omitted).

Duty to strike. “If the court finds the challenged information inaccurate or irrelevant, it must strike that information from the PSIR before sending the report to the Department of Corrections.” Spanke, 254 Mich App at 649; MCL 771.14(6). Remand is necessary to correct factual inaccuracies in a defendant’s PSIR. Spanke, 254 Mich App at 650. See also People v Britt, 202 Mich App 714, 718 (1993) (holding a trial court’s decision that it will not consider information in a defendant’s PSIR that the defendant claims is inaccurate does not conclude the trial court’s responsibility regarding the challenged information; the trial court must direct the probation officer to strike the information from the PSIR).

Clear indication of decision required. If the court decides to disregard the challenged information, “it must clearly indicate that it did not consider the alleged inaccuracy in determining the sentence.” Spanke, 254 Mich App at 649. Where the sentencing court’s response to a defendant’s allegation of inaccuracy is ambiguous, remand is necessary. Brooks, 169 Mich App at 364-365 (court’s response of “okay” to defendant’s challenge was ambiguous).

B.Challenge Resolution Examples

1.Factual Predicate Required

The defendant must establish a factual predicate for any claim of inaccuracy. People v Odom, 327 Mich App 297, 314 (2019) (rejecting defendant’s argument “that the PSIR was inaccurate because it did not include a victim-impact statement by a different victim, who defendant claims would have professed his innocence” where the defendant failed to present any “evidence that this alleged other victim had or could have provided such a statement”).

2.Challenges to Content in Victim Impact Statements

The trial court erred by failing to consider the defendant’s challenges to information in an impact statement included in the PSIR. People v Maben, 313 Mich App 545, 554-555 (2015). “[A] trial court is not required to strike a victim’s subjective statements about the impact of a defendant’s crime merely because a defendant disputes those statements”; however, “[t]o the extent that the impact section of the PSIR contain[s] factual allegations unrelated to [the defendant’s] crime, and which [do] not involve [a victim’s] subjective statements, [the defendant is] entitled to challenge the accuracy of the information, particularly considering that the content could have consequences in prison and with the parole board.” Id. at 555. See also People v Lampe, 327 Mich App 104, 123 (2019) (rejecting defendant’s argument “that victim impact statements should not have been included in the PSIR because there is no way to rebut the statements”) (alteration and quotation marks omitted).

3.Required Proof of Information

“The prosecution has the burden to prove the challenged fact by a preponderance of the evidence upon an effective challenge by a defendant.” People v Norfleet, 317 Mich App 649, 669 (2016) (quotation marks, citation, and alteration omitted). “[T]he trial court abused its discretion by holding that the prosecution met its burden to prove the challenged statement in the PSIR” where “[n]o evidence was submitted to support the allegations” that the defendant was affiliated with a gang. Id. Further, “[e]ven assuming the truth of the prosecutor’s assertions, the assertions at most established that defendant was, at one time, affiliated with [the] gang,” but they did “not establish that defendant was affiliated with the gang at the time of the alleged crimes or thereafter, as the PSIR suggest[ed].” Id.

4.Challenges to the Listed Sentence

No correction was necessary where the cover sheet of the defendant’s PSIR listed “the maximum sentence possible for each of defendant’s current convictions” rather than the sentence that was actually imposed by the trial court. People v Brown, 326 Mich App 185, 199 (2018) (noting that the PSIR cannot list a defendant’s actual sentence because it is prepared before sentencing).

5.Challenges to Opinions in PSIR

An investigating officer’s opinion need not be stricken from a defendant’s PSIR when the opinion is not declared to be a statement of fact. People v Spanke, 254 Mich App 642, 649 (2003), overruled in part on other grounds by People v Barrera, 500 Mich 14, 17 (2017).⁴ Similarly, a trial court need not “resolve a claimed inaccuracy in the presentence report where the defendant’s objection was not to an alleged factual inaccuracy in the report but to a conclusion drawn from the undisputed facts.” People v Wybrecht, 222 Mich App 160, 173 (1997) (quotation marks and citation omitted). See also People v Lampe, 327 Mich App 104, 121 n 6 (2019) (trial court properly declined to strike the phrase “‘defendant is deemed a predator’” where the defendant engaged in predatory conduct, including a “pattern of sexually preying on sleeping victims”; the Court concluded “the term ‘predator’ cannot be considered inaccurate,” and the lack of evidence that defendant was diagnosed as a predator was “irrelevant because the PSIR cannot plausibly be read to suggest that defendant was clinically diagnosed”); People v Uphaus (On Remand), 278 Mich App 174, 181-182 (2008) (trial court properly declined to strike from the PSIR the investigator’s comment suggesting that the defendant was “paranoid,” where the term “paranoia” did not represent a clinical evaluation of the defendant’s actual mental condition, but rather, it was a colloquial term used to characterize certain noteworthy statements made by the defendant).

C.Presumption of Accuracy

Unless a defendant effectively challenges the contents of his or her PSIR, the contents are presumed accurate, and the sentencing court may rely on them. People v Grant, 455 Mich 221, 233-234 (1997). “The presumption of accuracy applies only to unchallenged information.” People v Maben, 313 Mich App 545, 554 (2015) (holding that the trial court erred in “fail[ing] to adequately resolve [the defendant’s] challenges to the accuracy of the PSIR” based on its erroneous belief that “it was not required to resolve [the] challenges because the PSIR is presumptively accurate”).

“[A] defendant is not precluded from challenging information in the presentence report that had appeared in an earlier presentence report for a different offense but went unchallenged at that time.” People v Wade, 500 Mich 936, 936 (2017).

D.Standard of Review

“[A] trial court’s response to a defendant’s challenge to the accuracy of a PSIR [is reviewed] for an abuse of discretion.” People v Maben, 313 Mich App 545, 552 (2015) (quotation marks and citation omitted). “A trial court abuses its discretion when it selects an outcome outside the range of reasonable and principled outcomes.” Id. (quotation marks and citation omitted).

E.Errors Not Requiring Remand

A trial court’s failure to respond to a defendant’s challenge to information contained in his or her PSIR or introduced at his or her sentencing hearing may be harmless error if the inaccuracies alleged by the defendant would have no effect on the sentence imposed. People v McAllister, 241 Mich App 466, 473-474 (2000) (it was harmless error where, although the defendant was employed part-time, his PSIR indicated that he was unemployed).

Where the defendant failed to preserve the issue for appeal, the Michigan Court of Appeals declined to remand the defendant’s PSIR to correct the plain error regarding the crime for which the defendant was convicted. People v McCrady, 244 Mich App 27, 32 (2000) (the PSIR indicated defendant was convicted of first-degree premeditated murder but the jury actually convicted him of first-degree felony murder). The Court of Appeals acknowledged that the PSIR’s misstatement constituted plain error, but held that remand for correction of the PSIR was unnecessary because the error did not deprive the defendant of any substantial right. Id.